HEAD 'V. PORTER.

481

HEAD '11. PORTER. (oCrcuu Oowrt, D. Ma88achusetts. December 8, 1891.)
FEDERAL COURTs-J"URISDICTION-lNFRnlGEMENT OF PATENT-SUIT AGAINST. FEDERAL OFFICER.

in t)1e. circuit court for

An ofllcer of the United States, in charge of a government armory,may be sued of a patent, notwithstanding that all his acts in relation thereto have been performed UUUclr the orders of the government.

In Equity. Suit by Charles Head, as administrator of William S. Smoot, against Samuel W. Porter, master armorer at the Springfield armory, for infringement of a patent. Heard on plea to the Plea overruled. WiUiam A. Hayes, 2d, for complainant. Frank D. Allen, U. S. Atty., for defendant.
CoLT, J. The plea in this case raises the single question ot jurisdiction. The suit was originally brought by William S. Smoot, the complainant's intestate, against James G; Benton, an officer of the United States army in command of the national armory at Springfield, Mass., charging him with infringement of two patents, dated, respectively, January 1,1867, and August 27, 1867, for improvements in cartridge retractors for breech-loading fire-arms. Subsequently the defendant died,and' thereupoil the complainant moved to amend his bill by substitntingthe presettt defendant, Porter, master armorer at the Springfield armory. The amendment was allowed, reserving the right of the defendant to object. The defendant appeared, and without obje'ctions filed an answer in the case; The United States attorney, on behalf of Porter, urges this circumstance as' tending to show that this suit is in substance, though not in form, against the United States, but I rail to seethe forceiof this argument. The complainant, on the death of Benton,might have proceeded against his representatives; but he chose to sue the present defendant, who consents to be substituted for Benton. The-suit, therefore,stands as if originally brought against Porter; The defendant admits that since theda-te of the patents, and before the filing of the bill, he has superintended, and still superintends, the making 0fbreech-loading fire-arms, at the Springfield armory, as the master armorer, but he alleges that all his acts in relation thereto have been done in obedience to specific orders from the secretary of war, and his superior officers, directing the construction thereof, ar:d in no other way; in: other words, his defense is that he has acted only as the agent of the government, and undor its authorit.y. The subject-matter of this suit is a patent issued by the United States, and it became important at the outset to determine the nature of this grant. It has been authoritatively declared by the supreme court that the right of a patentee under letters patent was exclusive of the United States, and thatit stands on the same footing as other property. Jarne.s v. CampbeU, 104 U; S. 356; Holliaterv.Manufacturing 00.,113 U. S. 59, 5 Sup. Ot. Rep. 717. Asv,48F.no.7-31

FEDERAL RlilrORTER,· vol.

48.

suming the allegations of the bill to be true, this is a suit where the property rights of an been invaded by an officer or agent of the United States, acting under its direction, and the question is whether this court has jurisdicti6nin, such a suit. In cases where this general subject has come before the supreme court, thepropositiori is admitted that the United States, as the sovereign I need only cite on this power, cannot be sued point, U. S. y.Lee, 106 U. Sup. Ct. Rep. 240. But it is not to be inferred from tbis that this' court has not jurisdiction in an action 'Yhere an officer 01 agent of States is sued for property in his possession as .s!.JcP officer Of agent" or for injury to the person or proper,tyof another,.vvhere is that he acted under the orders of the go\7ernment. In U. S. v. Peters, 5 Cranch, tbe United States district court of Pennsylvania, in an admiralty proceeding, decided that the libelants were entitled to the proceeds of the sale of a vessel condemned as prize of war, whicbhadcome. into the hands of David Rittenhouse as treasurer of Pennsylvania. The district judge declined to enforce the decree of Rlttellhouse, .on the ground that the funds against were held as the property of that state,and that as she could not be subjected to judicial' process,. neither could the officer who held the money in her right. An application fora writ of mandamus to compel the district judge to enforce the dacree was granted. In Meig8.V. M'Olung's Le8Bee, 9 Cranch, 11, the suit was for land on which theUnitedStateahad a garrison, and had Elrected a fort. The defendants we,re military officers in possession. and they insisted that no action could be brought against them because the land was occupied by the United. States for the bellefi,t of the United States, and by their The court held that, the title being in the plaintiff, he might sustain his action. Wilcox v. Jackson, 13 Pet. 498, was a.suit against officers of the United States to recover possession of land whi9h had been in the, possession of the government for over 30 years.. The court do not consider the questnaintained, but pl'oceed to decide tion whetbefsuch an acti()n the question of the plaintiff's title. In Osborn v. Bank, 9 738, the state of Ohio had levied a tax upon a brllQ.ohof the bank located in Ohio. The sumoC one hundred thousa.nddQllal's was seized by Osborn, the auditor of the state, and dellveredito the· treasurer of the state. In a suit by the bank, both were made parties defendant. Objectjonswere raised to the jurisdiction of the court, on the ground that the state of Ohio was the real party in interest, th!\t the partif,s defendant were her officers, and thltt they were sued for acts done in .their' official capacity, and in obedience to her laws. These objectionS were overruled. Chief.Juetice MARSHALL says, on page 842:
"If thEl of Ohio could have been made a party it can scarcely be denied· that this would be a strong case for an injunction. 'the objection istllat. as the real party cannot be brought before the court, a suit canuotbe against the agellts. of· that party; and cases have been

,HEAD 11. PORTER.

488

cited tosho,w that a court of chancery will not make a decree. unless alI those who,are su\}stantially interested be made parties to the5uit.. TlJisis certainly true. is in the power of the plaintiff tQ make parties; but if the person whois the real principal, the person who is the true source ()f the mischief. by whose power and for whose advantage it is done. be himself above the law, be exempt from all judicial process; it would be subversive of the best established principles to say that the laws could not afford the same remediesagainst the agent employed in doing the wrong whichtbey would afford against him could his principal be joined in the suit." Again, he says: "The .process is substantially, though not In form, against the state, · '" '" and the direct interest of the state in the suit as brought is admitted; and, had it been In the power of the bank to make it a party. perbaps no decree to have been pronounced in the cause until the state was before the court. But this was not in the power of the bank. '" '" A denial ... '" It asof jurisdiction forbids all inquiry into the nature of the case. serts that the agents of a state. alleging the authority of a law void in itself, because repugnant to the constitution, may arrest the execution of any law in the United States." Grisar v. McDowell, 6 Wall. 363, was an action to recover possession of land, brought against Gen. McDowell as an officer of the United States. The land had been reserved for military purposes by the government. The objection that this suit was brought against a military officer of the United States for property belonging to the United States, and set apart for public llse, and that, therefore, it was substantially a suit against the government, was not passed upon by the court, but the court prlr ceeded to determine the question of title as between the plaintiff and the government. Brown v:. Huger, 21 How. 305, is a similar case. In DaviB v. Gray, 16 Wall. 203, the state of Texas having made a grant of alternate sections of land along which a railroad should thereafter be located, and the railroad having been located through it, a suit was brought against the governor of the state, and commissioner of the land-office, and they were enjoined from delivering patents of the sections of land which.belonged to the railroad company. The objection to the jurisdiction of the court was disposed of on the authority of 08born v. Bank. The court says: "Where the state is concerned, the state should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the state in all respects as if the state were a party to the record. In deciding who are parties to tile suit, the court will not look beyond the record. Making a state officer a party does not make the state a party, althongh her law may have prompted his action, and the state may stand behind him as the real party in interest. A state can be made a party only by shaping the bill expressly with that view, as. where individuals or corporations are intended to be put In that relation to the case." While this language is cited in support of the majority opinion of the court in U. S. v. Lee, Mr. Justice MILLER, in that case, says he is not prepared to admit that" the court can proceed against the officer in all respects as if the state were a party." And in Cunningham v. Railroad (h" 109 U. S. 446, 3 Sup. Ct. Rep. 292,609 t the same eminent judge,

484

FEDER4L

REPORTER, vol. 48.

speaking for a of the court, declares that, while the action of court in DuV'ii v. 'Gray has not been overruled, "it is clear that in enjoining the governor of the state in the performance of one of his tiV'e functions, the case goes to the verge of sound doctrine, if not beyond it,and that the pqnciple should be extendeqn9 further." In the leading case ofU. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. Rep. 240, the action was ejectment to recover the possession of lands to which the plaintiff, Lee, claimed title. The defendants 'were in possession as officers of the government. The attorney general suggested to the court, without. making theVnited States 8;. party, that .the property in controv.ersy, known as "Arlington Cemetery," had been for more than 10 years,'and now, is, held,occupied; and possessed by the government, through its officers an4agents, who are in the actUl\1 possession thereof as public property of the United States. To sustain this defense, the coqrt held that it was' necessary to show that the· defendants were in possession under the United States, by virtue of some valid authority, and, the contrary appearing, judgment was awarded to the plaintiff. After reviewing the authorities, Mr. Justice MILLER says:
"This examination of the cases in this court establishes clearly this result: that the proposition that, .when an individual is sued in regard to property whicll he holds as ·officer 01' agent of the.United States, his possession cannot be disturbed when that fact is brought to the attention of the court, has been overruled and denied in every case where it has been necessary to decide it, and that In many others where fhe record shows that the case, as tried below, actually and clearly presented that defense, it was neither urged by counsel nor considered by the court IUlre, though, if it had been a good defense, it would have avoided the necessity of a long inquiry into plaintiff's title, and perplexing questions, and have quickly dispolled of the case."

Mr. Justice MILLER then proceeds to discuss certain expressions in the opinion of the court in Carr v. U. S., 98 U. S. 433,and he says:
"As these remarks were not necessary to tlJe .of the point then in qljestion, as the action was equally inconclusive against the United States, whether'thepersons sued were officers of the government or not, these re':' marks, if they have the meaning which counsel attribute to them, must rest for their weight as authority on the high character of the judge who deliv.of the court which decided the case. That the ered tllem, and notoll, United· States are not by a judgment to which they are not parties, and that. of the government can, by defending a suit against private per. sons,cpnclude the United States by the jUdgmt'nt. was sufficient to decide that case, and was all that was decided."

at the question upon principle, he continlles: "It seems to be opposed to all the principles upon which the rights of the citizen, ·"'hen brought in collision with the acts of the government, must be determined. In such cases there is no safety forthecitizen, except in the protection of the judicial tribunals. for rights which h.ave been invaded by the * * Tbe poofficers oftbe government,professing to act in its name. sition assumed here is that, however clear his rights, no remedy can be afforded to him when it is seen that his opponent is an officer of the United States, claiming' to act under its authority; for, as Mr. Chief Justice MARw4ether, 'this authority is rightfully assumed is the

*

HEAD V. PORTER.

485

exercise of jurisdiction, and must lead to the decision of the merits of the question. .. .. .. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone who asserts authority from the executive branch of the government, however clear it may be made that tbe executive possessed no such power. Not only no such power is given, but it isabsolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty, or property, without due process of law, or to take private property without just compensation."

Poindexter v. (one of the Virginia Coupon Oases,) 114 U. S. 270, 5 Sup. Ct. Rep. 903, 962, was an action of detinue for personal property distrained by the defendant as treasurer of the state of Virginia for delinquent taxes, in payment of which the plaintiff had tendere<:l coupons cut from bonds issued by the state under the funding act of March 30, 1871. By the terms of that act, the coupons, after maturity, were receivable for all taxes and debts due the state. It was held that this created a contract between the coupon-holder and the state, and that any subsequent act of the state which forbids the receipt of these coupons is in violation of the contract, and void as against coupon-holders. Upon the question now under consideration, Mr. Justice MATTHEWS, speaking for the majority of the court, says: "It is next objected that the suit of the plaintiff below could not be maintained, because it is substantially an action against the state of Virginia, to which it has not assented. It is said that the tax collector who is sued was an officer and agent of the state, engaged in collecting its revenue under a valid law, and that the tax he sought to collect from the plaintiff was lawfully due; that, consequentlJ', be was guilty of no personal wrong, but acted only in an official capacity, representing the state, and, in refusing to receive the coupons tendered, simply obeyed the commands of his principal, whom he was lawfully bound to obey; and that, if any wrong has been done, it haa been done by the state in refusing to perform its contract, and for that wrong the state is alone liable, but Is exempted from suit by the eleventh article of amendment to the constitution ot the United States." .
The opinion then proceeds to answer these objections in the light of the adjudged cases in the supreme court, reliance being placC'd especially on U. S. v. Lee and Osborn v. Bank. In the course of this discussion it is said: "A defendant sued as a wrong-doer, who seeks to substitute the state in his place. Or to justify by the authority of the state, or to defend on the ground that the state has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He ill bound to establish it. 'fhe state is a political corporate body, can act only through agents, and can command only by laws. It is necessary, therefore, for such a defendant, in order to complete his defense, to produce a law of the state which constitutes his commission as its agent, and a warrant for bis act. This the defendant, in the present case, undertook to do. He relied on the act of January 26, 1882, requiring him to collect taxes in gold, silver, United States treasury notes, national bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That, it is true, is a legislative act of the government of Virginia, but it is not a law of the state of Virginia. The state has passed no such law; for it cannot; and what it cannot doit certainly, in contemplation of law,has not done.. The 'constitution of the United States, and its own contract, both 'any act on its part, are the law of Virginia; and. that law

FEDEl,'tAL mllde of

RJi;PORTEJil,

vol. 48.

of the.defe;ndant to the cOQPons tendered in payment dej.}hued every step to ellfQrce the tax, thereafter- taken, to be law, and ,tberefore,a W[Gllg. He IItands, then. stripped of ilis clil'racter, and, cO\lfessiIlg,4\ personal violation of theplaintHl's righl-sfQr: W:b,ipb be mQstpel'SOnally a1lflwer,he is .without defense." directed that' judgment be rendered for the tiff. :. , . . . . .. '.,.. .

In Ounningham v. Rai11'oad Co., 109 U. S. 446, 3 Sup. Ct. Rep. 292, 609, this general. question was discussEl<l, and the cases in which the court had taken jurisdiction, where the objection was interpo,sed that the suit was s6bstantially against the state, and that, therefore, the state was
's; necessary party, were examined and classified. .The second class of

cases is stated by Mr. Justice MILLER, as follows: "Another class of cases is where an individual is sued in tort for·some act injurious to ahother in regard to persoll or property, towhich his defense is that he bas acted under the orders of the government. In these cases he is not sued 88. or because he is. the officer of the goverllment. but as an individual, and. the court is not onsted of j lIrisdiction because he asserts authority as such officer. To make out his defense he must show that, Ilis authority was sufficient in law to protect him. Mitchell v. Harmony. 13 How. 115; Bates v. Olm·k.95 U. S. 204; Meigs v. McOlung. 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. Brown v.Huger. 21 How.305; Grisar v. McDowell, 6 Wall. 863; U. S. v. Lee, 106 U. S. 196,"1 Sup. Ct. Rep. 240." This language is cited with approval in Poindexter v. Greenhflw. In reviewing the cases involving the general principle now under consideration, the fact should not escape observation that the judges of the supreme court have beentrHlch divided in opinion. The leading cases of U. S. v. Lee and theVirgi'l1ia Coupcm Cases were decided hy a bare majority of th,e court, four of the judges dissenting in each case. But, notwithstanding this diversity of opinion, I think it is not going too far to say that the doctrine enunciated by Mr. Justice MILI.ER, under the second head of his classification in Cunningham v. Railroad Co., has become the established law of the supreme court, and it is under this head the present case falls. It cannot be said that the supreme court have authoritatively decided the identical ,question raised in this case, of the right of a patentee to maintain as,uit in tort for. the infringement of a patent-right against an individual whose defense is that all his acts in relation thereto were done as an officer or agent of the government and in obedience to its orderS. Cammeyer v. Newton, 94 U. S. 225,wasan action brought for tlie infringement of a patent, ·and one of the defenses set up was that the use, if any, which the defendant had made of the patented 1mprovement, was done under the direction of the United States, and as its agent or officer. Mr. Justice CI.J:FFORD, speaking for the court, says on this point: "Public employment is no defense to the employe fol'having converted the private proptlrty of another to the public use, without his consent and without just compensation." , After reference totlle clause in the constitution Which provides that private property not be tabu for public Use without just com-

HEAD

v.

PORTER.

487

peosation, and tolhe section of the patent act giving thepateotee the exclusive right to make, use, and vend to others his invention or discovery for a certain term of years, he then proceeds: "Agents of the public have no more right to take such private property than other individuals under that provision, as it contains no exception warranting any such invasion of the private rights of individuals. Conclusive support to that proposition is found in a recent decision of this court, in which it is held that the government cannot, after the patent is. iSRUed, make use of the improvement any more than a private individual, without license of the inventor or making him compensation. U. 8. V. Burns, 12 WalL 246." The question of infringement is then considered, and determined against the patentee. This opinion does not discuss the objection which has been raised in this class of cases to the jurisdiction of the court, arid view of the subsequent expressions of the court in James v. OampbeU, 104 U. S. 356, and HoUister v. Manufacturing (})., 113 U. S. 59,5 Sup. Ct. Rep. 717, it can hardly be deemed conclusive of the question. James v. OampbeU was a suit brought upon a patent against James, a public officer, to respond for the use of the patented machine. The circuit court rendered a decree in favor of the complainant. OampbeU v. Jame8, 17 BIatchf. 42. After admitting the exclusive right of the pa.tentee in the invention, which the government itself cannot use without just compensation, unless by consent, the opinion then proceeds: "But the mode of obtaining compensation from the United States for the use of an invention, where such use has not been by the consent of the patentee, has never been specifically provided for by any statute. The most proper forum for such a claim is theconrt of claims, if that court has the requisite jurisdiction. .As its jurisdiction does not extend to torts, there might be some difficulty, as the law now stands, in prosecuting in that court a claim for the unauthorized use of a patented invention; although where the tort is waived, and the claim is placed upon the footing of an implied contract, we understand that the court has, in several recent instances. entertained the jurisdiction. * * * If the jurisdiction of the court of claims should not be finally sustained, the only remedy against the United States, until congress enlarges the jurisdiction of that court, would be to apply to congress itself. The course adopted in the present case, of instituting an action against a public officer, wbo acts only for and in behalf of the government, is open to serious objections. We doubt very much whether such an action can be sus. tained. It is sUbstantially a suit against the United States itself, which cannot be maintained under the guise of a suit against its officers and agents, except in the manner prOVided by law. We have heretofore expressed our views on this subject in Oarr v. U. 8., 98 U. S. 433, where a judgment in ejectment against a government agent was held to be no estoppel against the government itself. But, as the concillsion which we have reached in this case does not. render it necessary to decide this question, we reserve our jUdgment upon it,for a more fitting occasion."

in

The court then proceeds to discuss the patent, and to decide the case upon its merits against the patentee. It is to be noticed that this case is prior to U. S. v. Lee and the Virginia Coupon Casesj also that the foregoing remarks of Mr. Justice BRAI>LEY concerning the jurisdiction of the court are based upon Can' v. U.S.

488
In

FEDERAL REPORTER,

vol. 48.

S.v,;Ue, the language of the court in Carr v. U. S.iscommented upon,arid it is said that the decision in that case did not properly extend to certain remarks of the court. It may also be observed that Mr. was among those members of the court who dissented Justice in U. S. v. Lee, and that he wrote the dissenting opinion in the Virginia Coupon Cases. The more recent case of Hdllister v. Manufacturing 00., 113 U. S. 59,'5Sup. Ct. Rep. 717, was a suit to enjoin 'the infringement Qfapatent, apd one of the defenses relied upon was that all the acts of the defendarit,compll!-ined of in the l:>iU were done by the discharge of his duties as collector of internal revenue of the United States, and 'by of the commissioner of internlll revenue, and that he had acted as collector by virtue of legal appointment by the president of the tJnitedStates. , . Mr. Justice MATTHEWS, speaking for court, refers to the doubts expressed in James v. Campbell whether such a suit against pHblic officers could be sustained, orwhethera suit upon an implied promise of indemnity might not be prosecuted against the United States in the court of e1aims, and then says: >If,tbe,ri,ght of the patentee wal! acknowledged. and. without his consent. an officer of the government. acting ,under legislative authority. made use of the invention in the discharge of his official duties. it would seem to be a cle'at· case of the exercise of the right of eminent domain. upon wldch the law would implya promise of compensation. an action on whirh would lie, within the jurisdictiQn of the court of claims, such as was entertained and sanctioned in the case of [T. B. y. Manufactw'ing Co·· 112 U. S. 645. 5 Sup. Ct. Rep. 306. it JAayhe even if the right of the patentee were conteste\l. $uch an actiqn might be I:!rot:jght in that court. involving allquestions relating to the validity of the patent: but. as we have concluded to dispose of the present appeal upon other grounds, it bocomes unnecessary to dethe quelltion aril!ing· upon this defense. " .The opinion then proceeds to discuss the patent and to dispose of the contention of the p!ltentee. · It is. at least doubtful whether the present acti()Il, could be brought in the court of claim!'. lults present (orm it is action in tort, and not upon any contract, express or implied, and, as, was said by Mr. Justice BRADLEY in James v. Campbell; the jurisdiction of that court does not extend totorts. While the supreme court have declined to pass upon the question'of jurisdiction in these cases, they have assumed jurisdiction and dis.posed of each case on its merits; in other words, no case can be found where the court has dismissed the suit for want of jurisdiction, and this would seem to be sufficient ground, in this case, to overrule the plea, and allow the case to beheal'd upon bill, answer, and proofs. If, however, the principle established in the cases we have reviewed, and the rule laid down by Mr. Justice MILLERin Ounningham v. Railroad Co., are !'ound, it is difficult to see why the court has not jurisdiction in the presept case. This is an action of tort for the infringement of a patent, brought against an individual, who is an officer or agent of the United States, and whose defense is that he acted under orders of the 'government. That this is no defense in actions' of this general char' , I '

u:

GIDDINGS' EX'RS t1. GREEN.

489

aeter has, as we have seen, been repeatedly held by the supreme court, and the objection interposed that these suits are substantially against the government, and that, therefore, it is a necef'sary party to enable the court to grant relief, has been many times urged without avail. The rights secured to a patentee under his grant from the government are a form of property, in the enjoyment of which he is entitled to protection against all trespassers, including the government. To deprive him of the full enjoyment of these rights by using his invention without his consent is to deprive him of his property without just compensation or due process oflaw, and therefore in conflict with those provisions of the constitution which secure this protection to the citizen. I am of opinion, therefore, that the plea in this case should be overruled.

GIDDINGS' Ex'RS V. GRF:EN

(OircuitOourt,

et al.

E. D.

Virginia. 1880.)

EXEOUTORS-RIGHT"TO SUE IN A.NOTHER STA.TE-VENDOR'S LIEN.

When an indorsee of a negotiable note given to secure the purcbaseprice of lands dies before the note matures, while residing in II different state from that in which the lan!l is situated, his executors, appointed in the state of his residence, may sue to assert a vendor's lien in the state where the land is without procuring letters testamentary there.

In Equity. Suit by the executors of Calvin Giddings, appointed in Ohio, against A. B. Green and others, to assert a vendor's lien on lands situated in Virginia. On plea that the complainants cannot sue because they have not procured letters testamentary in Virginia. Plea overruled. HUGHES, J. This is a suit in chancery, brought by the executors, der letters taken out in Ohio, of Calvin Giddings, deceased, who was a citizen of that state, and whose will was proved there; the executors; of course, being also citizens of Ohio. The object of the suit is to subject a certain piece of land near the town of Hampton, in this state, to the lien for part of the purchase money of the land evidenced by a negotiable note which had been indorsed to the testator in his life-time by the vendor of the land, and which matured some eight months after the death of the testator, and after the qualification of tbe complainants as hi"l executors in Ohio. The note was found by the executors among the;> testator's effects in Ohio. The vendee of the land, who is the principal defendant in the bill, is not a resident of this state, but is a resident of New jersey; nor has process been served upon him, but he has appeared by counsel, and pleads that the complainants ought not to be heard in this suit, because they havB never received nor obtained letters onidministration upon their testator's estate from any court or authority in the state· of Virginia.

490

REPORTER,

vol. 4:8.

The sufficiency of this plea this suit is the only question before me in this cause;,!t is a technical defense. There, jsno principle of law mOre firmly estaplished than' thll,t, where :are assets in one stll,te ora deceased resident of state, they cl:\DDotbe collected by suit, except by an executor or administrator having letters of administratioij ti:oro acomt of the state in which the assets are sued for. Otherwilill'l. if there should be c,reditors deceased person in such state, they WQul<;l" be driven to a different, Jurisdiction to, ,assert their claims, andtpeitrightswould ,depend upon:tbe .laws of another forum than that in their rights of action arose. The authorities establishing this pf law' ATe so numerous, it. is useless to. cite them. But it may well be this principle extendsa<' far as to deny personal representative of a decedent, under all circumstances, the to right to sue as such in any jurisdiction except that from which his letters of administration issued. Suppose an executor in Ohio has fonnd among the effects of his testator in that state a jeweled watch, or valuable horse, or other apecjfic article ofcqrporeal property, and has put it into his inventory of the testator's effects, and the title to it has become for it in Ohio to Ohio creditors; vested in him, and he has and suppose this article of property IS stolen and carried into Virginia, and found in the possession of one of her citizens. Will it be contended that tbe Ohio executor, who, as such, has the exclusive title to the property, cannot sue for its recovery in Virginia; and can it be pretended tha.t a Virginia executor, who has Iiotitle, must be appointed, or, if appointed, must sue for this property not vested by lawin him? In such a case the right of action attaches,to the person of the particular executor in which the title of the property has vested,and not to his office, considered nb!!trnct. Story, Confl.Laws, § 516, and cases there cited.. If sucb executor, suing in,Virginia, describes himself as executor, the words would be descriptio per8onm. So, when an executor has been regularly made plaintiff in a judgment recovered by his testator during his life-time, bysubstitutioD, .of record, in the state wherein his letters were granted and .the judgment obtained, then he may sue upon that judgment in another. state without taking out letters testamentary therein, just as any otner trustee may sue in a state other than that of his residence citizenship. Grea80fI,8,v. Davis, 9 Iowa, 219, 225. So, if an executor appointed in Vermont, of a resident who died there, receives a debf,voluntarily paid him by a citizen of New York, due to his testator, that debtor cannot be afterwards sued in. New York, by a creditor of the testator or other claimant in the latter state, for the claim whichhehas.thus paid. The redW,#on of the claim to possession vests the Jund executor, and makes it a part of the estate in Vex:mqnt, and itschllracter as assets in New York, at least so far as to exonerate the New 'Yo!,k debtor from liability for it. Story, Confl. laws, .§ 515, and case,s there cited. It has been held that, inasmuch aaan e:x;eQuj;or in one state may assign a chose in action, and thus wholly part with the ,property in it,hisMsignee may sue upon the chose in action in another state in his own right, if the law of that state

491
permit an assignee so to sue there. and letters testamentary need not be taken out there. Harper'll. Butler, 2 Pet. 239; A negotiable note is of the same character, as to the right of suit, with a chose in action assigned and sued upon as just instanced. Negotiable notes partake of the character of personal chattels on account of their transferability., TheJegal property in them passes by transfer, as it does in chattels. If a negotiable note matures after the death of a testator, as in the case at bar, it becomes vested in his local executor. See Story, Con£1. Laws, §§ 355, 359, 517. It is his property, is inventoried by him as stich, and the title to it vests in him precisely as that of a watch or a horse vests in him, as part of the home assets of the testator's estate, distributable as all other home assets are, as directed by the law of the particular state. The executor may indorse and deliver it to whom he may please, and such action on his part transfers to the indorsee the same right to sue all over the world as belongs to the holder of any other negoti!!.ble paper. Whether he indorses it, or does not, its proceeds or the note itself is home assets, subject exclusively to home distribution under the law of the domicile; and therefore it is maintained by Mr. Justice Story (Oon£1. Laws, § 517) that if he does not transfer, the note by indorsement, but sues upon it himself in another state, he need not take out letters ie$tamentary in the state where the debtor resides, in order to maintain his suit against him. I hold, therefore, that the plea of A. B. Green in this case is not good, and that the suit may proceed in the namA of the executors, complainants. If the paper were transferable by indorsement (which includes delivery) when the executors came into possession of it, the fact that the testator wrote his name upon it in his life-time was nugatory, and the personal representative cannot complete the transfer by delivery. He must himself, in his full legal character, indorse the paper; that is. write the transfer on it and deliver it. 1 Daniell, Ch. Pro § 367; Clark V. Boyd, 2 Ohio; 56; Clark v. Sigourney, 17 Conn. 511; Brornnge V. Lloyd, 1 Exch. 32; lasurance Co. V. Leavenworth, 30 Vt. 11; Thomp. Bills, 91. In the present case, even if I thought it necessary that these complainantsshould take out letters testamentary in Virginia, this requirement would not invalidate their present proceeding; for it would be competent for them still to do so; and the court would allow them to amend their bill to embrace this new feature in the case, as was done in SwatzeZ V. Arnold, 1 Woolw. 383.

FEmiJRAL

REI'ORTER, vol. 48.

'l1.

LEwIS

SHAINWALD.

C07trt, D. California. November 25, 1881.)
1. J'URISDIOTJON OJ' CmOUIT COURTS-EQUITY RULE 90.

Equity rule 90, providing that, where the rules prescribed by the supreme or clrQuit courts do not apply, the practice oUhe circuit courts shall be regulated by the present practlSJe of the high court of chancery of England, etc., affects the practice only of the circuit courts, and does not apply in determining questions of Jurisdiction.

2. .

8;...NB

By virtue of the jurisdiction attaching to courts of equity in cases of fraud, and independE\Il.t of anr statute giving the rigl!t to maintain a creditors' bill, a federal court may entertam a bill alleging the return of an execution nulla bonn, and that the debtor" pending the suit, has converted part of his property into cash, and is engaged ill (l!sposing of. and concealing the remaillder, or is about to carry it out of the state,all with the declared intent of so "fixing" his property that it cannot . be seizedtosatisty judgment. .
OF FEDERAIJ DISTRICT COURTS·

CREDITORS' BILL-J"URISDJOTION OF FEDERAL COURTS-FRAUD.

4l

. ·Under: U. S. § 716, tqat the supreme court and the circuit a!1d district courts shall have power to Issue writs of scire jacf.as, 'Qnd "all otber wrIts ; not'lilpecilically provided for by statute,which may be necessary for the exercise of thei\, and agl'E!eable to the usages and Pl'inciples of law, " the distri¢t courts have power to issue writs of ne exeat repub/Ma. The ,ofne exeat republica Is not a mere provisional remedY,in the sense that It can onlybejssued pending the suit, alld mllst expire with the rendition of judgment; ou·tbEi contrary, its issuance may be p\-ovided for in the final decree, and it .; will oontillue in force untiil dissolved by the court, or until thedecree is satisJied.
SAME-'WHENGRANTED. .

Bill to reach property not subject to execution. On apFor former reports see 6 Fed. Rep. 753, 766, 8 Fed. Rep. 878. , J. D. Crittenden, for complainant. Delos Lake, for respondent. Before SAWYER, Circuit Judge.
Heal from the p.istrict court.

In Equity.

·. This isa bill in equity,called by appellant's counsel a "credito,rs' bill," based upon a prior proceeding, in which a decree had been entered in the district court against the respondent, appellant here, for a large sum of money, and execution issueu,upon which a return of nulla bona had been made. It is .by the respondent that, prior to the adoption of the Revised Statutes in the state of New York, no such bill, in the senseshlce used, was known; that a thing as a creditors' bill of the character here set forth was unknown to the court of chancery; and that, therefore, the case is not properly one of equity jurisdiction. Upon this proposition some decif·<ions of the English courts are cited; and it appears that some of the latter decisions overrule some of the former ones upon certain points. In this connection equity rule 90 is cited as having a bearing upon the case, as prescribing that the English chancery practice shall be adopted in cases where our equity rules do not apply. That rule is as follows: "In all Ca'l6S where the rules prescribed by this court or by the circuit court do not apply, the practke of the circuit court shall be regulated by the present practice of the high court of chancery of England, so far as the same may