#### SERE AND LARALDE v. PITOT AND OTHERS.

A general assignee of the effects of an insolvent cannot sue in the federal courts, if his assignor could not have sued in those courts.

The citizens of the. territory of Orleans *333may sue and be sued in the *district*court of that territory in the same cases in which a citizen of Kentucky may sue and besued in the court of Kentucky.

*332ERROR .to the district court of .the United States for the district of Orleans, in a suit in equity, in which *Seré- Lar aide*were complainants, against *Pitot and others,*defendants.

The complainants stated, that they were aliens, and syndics of the creditors of the joint concern of Dumas & Janeau, Pierre Lavergne and Joseph Faurie j that Fauri'e died insolvent; that Dumas & Janeau were *333also, insolvent, and made a surrender of all their effects to their creditors, and that Lavergne acknowledged hiqasfelf to be unable to pay the debts of the joint concern; that the joint concern, as. well as the individual members, being insolvent, “ application was made by their creditors to the superior court of the territory of Orleans, and such proceedings were thereupon had that, according to the laws of the said territory, the complainants were, at a mfeeting of the creditors of the said piarinership, duly nominated syndics for the said creditors, and, *by the laws of the said territory, all the estele, rights and credits of the said partnership Were vested in the complainants.n*They also stated that the defendants were citizens of the *United States.*

The defendants pleaded to the jurisdiction, and the court below allowed the plea.

*E. Livingston,*for the plaintiffs in error, contended,

1. That the eleventh section of the judiciary act of 1789 did not apply to those assignees to whom the *choses in action*of an insolvent were transferred by operation of law, as in the case of executors and administrators. 4 *Cranch,*306. *Chappedelaine*v. *Decheneau;*and,

2. That under the third article of the constitution of the United States, and the judiciary act of 1789, it was sufficient to aver one of the parres to be a citizen of the United States, generally, if the other party were an alien. It is to be presumed that he was a citizen of some one of • the states.

*Harper,*contra.

The judiciary act is express in prohibiting a suit in the federal court by an assignee, if the suit could .not have been maintained between the original parties. The expression is general, “ *or other chose in*action,” whith comprehends the present case.

By the constitution, if one party be an alien, the *334other must be a citizen of *one of the states;'*it is not-sufficient that he be a citizen of one of the *territories-*of the United States.

The cáse of *Chappedelaine*was that of an administrator; this is of a mere assignee.

Livingston, in reply.

The act of congress speaks of recovering the *contents*of a *chose in*action, evidently referring only tb cases of individual assignments of particular *chases in*action, not to a general assignment of all his effects by ap insolvent.

*March 17.*

Marshall, Ch. J.

delivered the. opinion of the coürt as follows, viz.

.This suit was brought in the court of the United States for the Orleans territory, by the. plaintiffs, who are aliens, and syndics or assignees of a trading company composed of citizens of that- territory,. who have become insolvent. The defendants are citizens .of the. territory, and have pleaded to the jurisdiction of the ■court. Their plea was sustained, and the cause now comes on to he heard oh a writ of error to that judgment.

Two objections áre. made to the jurisdiction ot the district court.

1. That the suit is brought by the assignees of a choí *in action*, in a case where.it could not have been prosecuted, if no assignment had been made.

*%*That the district court cannot entertain jurisdiction, because the defendants are not citizens of any state.

The first objection rests on the 11th section of the judicial act, which declares “ that no district or circuit court shall have cognisance of any suit to *335cover the contents of any promissory note, or other *chose in*action, in favour of an assignee, unltss a suit might have been prosecuted- in such court, to recover the said contents, if no assignment had been made.”

The plaintiffs are admitted to be the assignees óf a *chose in action;*but it is contended that they are not within ihe meaning of the provision which has been cited, because this is a suit !or cash, bills and notes, ' generally, by persons to whom the law transfers them, and not by such an assignee as is contemplated in the judicial act. The words of the act are said to apply obviously to assignments made by the party himself, on an actual noty, or other *chose in action,*assignable by the proprietor thereof, and that the word “ contents” cannot, by any fair construction, be applied to accounts or unliquidated claims. Apprehensions, it is said, were entertained that fictitious assignments might be made to give jurisdiction to a federal court, and, to guard against this mischief, every case of an assignment by a party holding transferable paper, was excepted from the jurisdiction of the federal courts, unless the original holder might have sued in them.

Without doubt, assignable paper, being the *chose in action*most usually transferred, was in the mind of the legislature when the law was framed; and the words of the provision are therefore best adapted to that .class of assignments. But there is no reason to believe that .the legislature were not equally disposed to except from the jurisdiction of the federal courts those who could- sue in virtue of equitable assignments', and those who could sue in virtue of legal assignments. The assignee of all the open accounts of a merchant might, under certain circumstances, be permitted to sue in equity, in his own name, and there would be *as*much reason ,to exclude him from the federal courts, as .to exclude • the same person, when’ the assignee of a particular note. The ■ term “ other *chose in*action” is broad . enough to’ comprehend either case; and the word “contents,” is too ambiguous in its import, to restrain that general term. The- “ contents” of a note are the sum it shows to be due ; *336and the same may, without much violence to language, be said of a» account.

The circumstance, that the assignment was made by operation of law, and not by the act of the party, might- probably take the case out. of the policy of the aet, but not out of its letter and meaning. The legislature has made no exception in favour of assignments so made.1 It is still a suit to recover a *chose in action*in favour of an assignee, which suit could not have been prosecuted if no assignment had been made; and is therefore within the very terms of the law. The ca3e decided in 4 *Cr*cinch, wás on a suit brought by an administrator, and a residuary legatee, who were both aliens-. • The representatives of a deceased person are nót usually designated by the term assignees,” rfhd are, therefore,- not within the words of the act. .That case, therefore, is not deemed a full precedent for this.

It is the opinion of the court that the plaintiffs had q<? right to.maintain this suit "in the district .court against a citizen of the’ Orleans territory, they being the assignees of persons who were also citizens of <-hat territory.

It is of so much importance to the people of Orleans to decide on the second objection, that the court will proceed *to*consider that likewise.

Whether the citizens of the territory of Orleans are to- be considered aS the citizens Of a state, within the meaning of the constitution, is a question of some difficulty which would be decided, should one of them sue *in*any of the circuit courts of the United States. The present- inqairy is limited to a suit brought by or against,a citizen of the territory, in the district court of. - Orleans.

The power of governing and ©f legislating for a ter-. ■ritory is the inevitable consequence -of the rigifit. to acquire and to hold territory; Could this position be •contested,- the constitution of the United States de*337alares that “ congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” Accordingly, we find congress possessing and exercising the absolute and undisputed power of governing and legislating for the territory of Orleans. Congress has given them a legislative, an executive, and a judiciary, with such powers as it has been their will to assign to those departments respectively.

The court possesses the same jurisdiction which was possessed by the court of Kentucky. In the court of Kentucky, a citizen of Kentucky may sue or be sued. But it is said that this privilege is not imparted to a citizen of .Orleans, because he is not a citizen of a state. But this objection is founded on the idea that the constitution restrains congress from giving the court of the territory jurisdiction over a case brought by or against a citizen of the- territory. This idea is most clearly not to be sustained, and, of consequence, that court must be considered as having such jurisdiction as congress intended to give it.

Let us inquire what would be the jurisdiction of the court, on. this restricted construction.

It would have no jurisdiction over a suit' brought by or agaihst a citizen of the territory, although an alien, or a citizen of another state might be a party.

It would hake no jurisdiction over a suit brought by a citizen of on© state, against a citizen ,of another state, because neither party would be a citizen of the “ state’* in which the court sat. Of what civil causes, then, between private individuals, would it have jurisdiction *l*Only of suits between an alien and a citizen of another state who should be found in Orleans. Can this be presumed to have been the intention of the legislature in giving the territory a court possessing the same jurisdiction and power with that of Kentucky.

The principal motive lor giving federal courts jurisdiction, is to secure aliens and aitizervs of other ' *338states from'local prejudices. Yet all who could be affected by them are, by this construction, excluded from those courts. Theré could .scarcely ever be a •civil action between-individuals of which the court could lake cognisance, and if such a case should arise, it would -be'one in which no prejudice is to be apprehended.

. It is the unanimous opinion of the court that, by a fair construction of the act, the citizens of the territory of Orleans may sue and be sued in that court in the sanie cases in which a. citizen of Kentucky may sue -and be sued m the court of Kentucky.

Judgment affirmed with cost's;