Where the jurisdiction depends on "diversity of citizenship," you will find in chapters 9 to 15 of Simkins Federal Equity Suit, 2d ed. all that is essential to be known in order to plead intelligently.

Where the jurisdiction depends on a "Federal question," you will find a satisfactory discussion of it in chapters 24 to 30. Where jurisdiction depends on "alienage," you will find a sufficiently accurate discussion on pages 85 to 88 inclusive.

Where the jurisdiction falls within section 8 of the act of 1875, embodied in sec. 57, chap. 4, of the New Code, you will find the practice thereunder fully explained, with forms given, in chapter 58 of Simkins, Federal Equity Suit, 2d ed.

Where the jurisdiction depends on "amount" involved, you are referred to chapters 30 to 34 for the law applicable to this element of Federal jurisdiction.

Where the various grounds of jurisdiction as above set forth are contested, you will find the practice and forms given in my Suit in Equity, 2d ed., as follows:

As to diversity of citizenship, chapter 22.
As to district of suit and venue, chapter 23.
As to Federal question, pp. 166 to 168 inclusive.
As to amount, see chapters 35 and 36.

Amendment of Jurisdictional Averments.

As to amendment of these jurisdictional averments, see my Suit in Equity, chapter 37, 2d ed.

Jurisdiction in Probate Matters (see Simkins, Federal Equity Suit, 2d ed. pp. 245 et seq.). May establish claims against the estate. Farmers' Bank v. Wright, 158 Fed. 841. See American Baptist Home Mission Soc. v. Stewart, 192 Fed. 976.

Jurisdiction by Assignment. I have given in chapters 38 and 39 an historical sketch of this character of jurisdiction, and the law as it exists at present. The term "choses in action" is fully construed and illustrated, and when an assignee of a note or bond or evidence of indebtedness can sue in the Federal courts is stated. See chapter 39. Also how the assignment should be alleged in the complaint or petition, and how the issue is raised and tried, with forms given for raising the issue, Simkins, Federal Equity Suit, 2d ed. pp. 220, 221.

CHAPTER III.

THE PLEADINGS.

Assuming the jurisdiction of the court, which must rest on one of the grounds above stated with proper amount involved, I will now take up the successive steps in the prosecution of a suit at law in the Federal courts from the filing of the petition to its final determination in the court of last resort.

We have seen that section 914, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 684, known as the "conformity act," requires the forms and order of pleading in the State courts of the State in which the Federal courts are sitting to be followed “as near as may be," and in this respect section 914 has been generally considered mandatory by the Federal courts (Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 300, 23 L. ed. 898; Shumaker v. Security Life & Annuity Co. 86 C. C. A. 302, 159 Fed. 112; Brown v. Cumberland Teleph. & Teleg. Co. 181 Fed. 246; Southern P. Co. v. Denton, 146 U. S. 209, 36 L. ed. 945, 13 Sup. Ct. Rep. 44; Knight v. Illinois C. R. Co. 103 C. C. A. 514, 180 Fed. 368); and under this rule may be placed the scope and sufficiency of the pleadings (Knight v. Illinois C. R. Co. 103 C. C. A. 514, 180 Fed. 372; Bryson v. Gallo, 103 C. C. A. 424, 180 Fed. 71-74 and cases cited); and the time of pleading (Ricard v. New Providence, 5 Fed. 433; Werthein v. Continental R. & Trust Co. 20 Blatchf. 508, 11 Fed. 689, see Osborne v. Detroit, 28 Fed. 386).

It will be noticed that section 914 excludes from its operation Suits in Equity or Admiralty. The blended system of pleading in many of the States cannot be followed, wherein legal and equitable causes of action are permitted to be set up in the suit. The distinction between law and equity in the Federal courts is one of substance, and not of form, and this must be kept in mind in framing the pleadings on the law side. McKemy v. Supreme Lodge, A. O. U. W. 104 C. C. A. 117, 180 Fed. 961; Lindsay v. First Nat. Bank, 156 U. S. 485, 39 L. ed. 505, 15 Sup. Ct. Rep. 472; Courtney v. Pradt, 87 C. C. A. 463, 160 Fed. 562;

81 C. C. A. 237, 152 Fed. 41; Mead v. Chesbrough Bldg. Co. 81 C. C. A. 184, 151 Fed. 1002; Chapman v. Yellow Poplar Lumber Co. 74 C. C. A. 331, 143 Fed. 201.

Misjoinder of Causes of Action.

The practice is controlled by the rules and laws of the State, so far as misjoinder in actions at law is concerned. Merchants' Ins. Co. v. Buckner, 49 C. C. A. 80, 110 Fed. 347. See Holt v. Bergevin, 60 Fed. 1.

CHAPTER IV.

PARTIES TO A SUIT AT LAW.

Plaintiff.

The rule is that actions must be brought in the name of the party whose legal right has been invaded, but where the State prescribes who shall be made parties plaintiff or defendant in any cause cognizable at law, the Federal courts will conform to the State Code or rule, unless, as we shall see, the jurisdiction of the court would be ousted by making parties to the suit persons who are only proper, or necessary, and not indispensable parties. Erstein v. Rothschild, 22 Fed. 64; Allnut v. Lancaster, 76 Fed. 131; Perry v. Mechanics' Mut. Ins. Co. 11 Fed. 479; Morning Journal Asso. v. Smith, 4 C. C. A. 8, 1 U. S. App. 270, 56 Fed. 141; Phelps v. Oaks, 117 U. S. 241, 29 L. ed. 890, 6 Sup. Ct. Rep. 714; New York Continental Jewell Filtration Co. v. Sullivan, 111 Fed. 181.

In determining in whom the legal interest is vested, to entitle one to sue, it may be either the general or special owner. Inman v. Seaboard Air Line R. Co. 159 Fed. 973. But, as said in Hale v. Tyler, 104 Fed. 761, U. S. Rev. Stat. § 914, U. S. Comp. Stat. 1901, p. 684, applies with full force in making parties, so that State laws on the subject are controlling,citing Pritchard v. Norton, 106 U. S. 124-130, 27 L. ed. 104106, 1 Sup. Ct. Rep. 102; and Albany & R. Iron & Steel Co. v. Lundberg, 121 U. S. 451, 30 L. ed. 982, 7 Sup. Ct. Rep. 958.

Parties as Affecting Jurisdiction.

In considering parties as affecting the jurisdiction of the Federal courts, only the absence of indispensable parties is considered. O'Neil v. Wolcott Min. Co. 27 L.R.A. (N.S.) 200, 98 C. C. A. 309, 174 Fed. 536, and cases cited (see Simkins, Federal Equity Suit, 2d ed. pp. 231–235).

Assignees as Parties.

Suit by assignees, when permitted or forbidden by State laws, will be allowed by the Federal courts. Greensboro v. Southern Paving & Constr. Co. 94 C. C. A. 292, 168 Fed. 880; Nederland L. Ins. Co. v. Hall, 27 C. C. A. 390, 55 U. S. App. 598, 84 Fed. 278; Joseph Dixon Crucible Co. v. Paul, 93 C. C. A. 204, 167 Fed. 784; Delaware County v. Diebold Safe & Lock Co. 133 U. S. 488, 33 L. ed. 680, 10 Sup. Ct. Rep. 399, and cases cited; Pritchard v. Norton, 106 U. S. 124, 130, 27 L. ed. 104, 106, 1 Sup. Ct. Rep. 102; Franklin v. Conrad-Stanford Co. 70 C. C. A. 171, 137 Fed. 737. For jurisdiction by assignment, see Simkins, Federal Equity Suit, 2d ed. chapters 38 and 39.

Assignment of causes of action for tort is governed by State laws as to right to sue. Hartford F. Ins. Co. v. Erie R. Co. 172 Fed. 899. The foregoing cases show that it is a question of procedure dependent on State laws (Edmunds v. Illinois C. R. Co. 80 Fed. 78; Glenn v. Marbury, 145 U. S. 499, 36 L. ed. 790, 12 Sup. Ct. Rep. 914); but assignees of choses in action cannot sue in the Federal courts unless the assignor could. Simkins, Federal Equity Suit, 2d ed. chapters 38 and 39. The assignee of a part of a chose in action cannot maintain a suit at law upon it in the Federal courts. Rogers v. Penobscot Min. Co. 83 C. C. A. 380, 154 Fed. 606.

Congress has set limitations to suits by assignees by forbidding Federal courts to take jurisdiction "to recover the contents of any promissory notes, or other choses in action, in favor of any assignee unless a suit might have been brought or prosecuted in the Federal courts by the assignor, except in cases of foreign bills of exchange." The above restriction was embodied in the act of 1789; it was subsequently amended in the jurisdictional act of 1888, and as amended is now embodied in the New Judicial Code, which went into effect January 1, 1912, sec. 24, and now reads as follows:

"No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder, if such instrument be made payable to bear