Jl'EDlIlRA:LREPORTEB,

.

vol. 64.

jul"isdietion of the Eastem district of Michigan are not changed, but extend,tothe center Of the lake, and include the place of this alleged To confer' juisdiction upon' this court, it must appear that the offense was committed outsjde the Michigan boundary line, beyond the Eastern· district of Michigan; and I am inclined to the opil1ionthat the indictment mustlw allege where an offense upon Lake Huron is charged. Upon the admitted facts, the demurrer mtlJStbe sustained. The second indictment is within the same rule, an'd demurrer is sustained.
DANAHY v. NATIONAL BANK OF DENISON. (Olrcult Court of Appeals,
FEDE:ij.r.ColJR'l'S-JURISDICTION-DIVERsE

Circuit. No.t7L

November 27, 1894.)

BANKS.

p..

Fedetal courts have no jurisdiction. of an action by a national bank on Where the record does not show diverse citizenship.

In El'ror to the Circuit Court of the United States for the Northern DIstrict of Illinois. Assmnpsitby the National Bank of Denison against Daniel Danahy. Flaintiff obtained judgment. Defendant brings error. Rafferty (James Maher, of counsel), for plaintiff in error. D. H.jPinney, E. R. Eldridge, and E. J. Wilbur, Jr., for defendant in error. . Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.
JENKINS, Circuit JUdge. A review is here sought of a judgment rendered in a suit upon certain promissory notes claimed to have by the firm of Danahy & }IcDonald. We are constrained to're'Verse this judgment without passing upon the merits of the and for want of showing of jurisdiction in the court below;iThe allegation of the declaration is as follows:
"The 'Nitional Bank of Denison, a corporation, complains of Daniel Danahy and' Donald J. McDonald, late partners under the firm name of Danahy & McDonald, defendants in this suit, summoned," etc., "of a plea of tresp$.S1i! on the case on promises."

There is no allegation in the declaration of the citizenship of either; the plaintiff or the defendant There is no other allegation of the incorporation of the plaintiff than that stated. We are asked is a national to take' judicial notice that the defendant in bank,because of its name. If we could do this, it would not avail. a national bank could. sue or be sued in the courts of the United!!States in the district in which it is established, without respect to the citizenship of the, opposite party. Rev. St.. § 629, subd. 10; County of Wilsonv. Bank, 103 U. S. 770, decided in 1880. But under the act of July' 12,1882: (22 Stat. 162, § 4), and the act of 1887 (24 St. 552), as corrected and re·enacted in 1888 (25 Stat. 433), all national banking associations shall, for the purposes of suit,

ANDREWS V. THUll.

149

"be deemed· citizens of the states in which they are respectively located, and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state." Under the first of these acts it was held that a suit can neither be brought in nor reo moved into the United States courts unless a similar suit could be .entertained by the same court by or against a state bank in like t'lituation with the national bank,· and that under that law nothing in the way of jurisdiction could be claimed by a national bank be.cause of the source of its incorporation. Bank v. Cooper, 120 U. S. 778,7 Sup. Ct. 777. It is clear that, in order to confer jurisdiction, the diverse citizenship of the parties to the suit must appear by the record, and this cannot be waived. This has been so often declared by the supreme court as now to be elementary. The jurisdiction .need not necessarily be averred in the pleadings, if it otherwise affirmatively appears by the record. Railway Co. v. Ramsey, 22 Walt 322. We have therefore searched the record to discover if jurisdiction might be saved, and the case decided upon its merits. We find, however, no evidence of the citizenship of the plaintiff in error. He states in his testimony that he lives at Aurora, TIt; but "residence" and "citizenship" are not synonymous terms. Robertson v. Cease, 97 U. S. 646; Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154; Anderson v. Watt, 138 U. S. 694, 702, 11 Sup. Ct. 449; Timmons v. Land Co., 139 U. S. 378,11 Sup. Ct. 585. We have been asked, in case we should be compelled to reverl!e this judgment upon this ground, to remand the case with leave to amend the declaration to show jurisdiction conformable to the facts. This we are authorized to do by Robertson v. Cease, 97 U. S. 646, 651. The judgment will be reversed for failure in the record to disclose jurisdiction, with direction to permit amendment of the dedaration in the assertion of jurisdictional facts, and to award a new trial

ANDREWS

et at v. THUM et a1.

No. 89.

(Circuit Court of Appeals, First Circuit. June 23, 1894.) 1.

APPEAL-WHO MAY TAKE.-PERSO:NS CONDUCTING DEFENSE.

a

In a suit for infringement of a patent, brought against vendors of the alleged infringing articles, the manufacturers assumed and carried on the defense, pursuant to a contract with the nominal defendants to carryon said defense to final judgment. Held, that they had a right to appeal from a final decree without the special consent of the nominal defendants. In a suit for infringement of a patent, brought against vendors of the alleged infringing article, the manufacturers assumed and carried on the defense, and, after entry of an interlocutory order for an injunction and an account, moved to reopen the case and dissolve the injunction, for reasons touching the merits. Pending the motion the nominal parties caused to be entered a final decree for a sum settied between them as damages. The motion was subsequently heard by the court on its merits and denied. Held, that the motion must be held to be in effect a vetitlonfor a

SAME-TIME OF TAKING-PETITION FOR REHEAlUNG.