395. Trusts.

396. Who are assignees.

397. Intermediate assignees.

398. What constitutes assignment.

399. Cause of action arising after assignment.

400. Subrogation.

401. Validity of assignment.

402. Nonassignable causes of action.

403. Reassignment.

404. Time when jurisdictional grounds must exist.

405. Joinder of causes of action.

406. Joinder of assignees.

407. Pleadings and record.

408. Objections to jurisdiction.

Necessity of evidence to establish jurisdictional allegations.

Presumption as to jurisdiction.

Objections to jurisdiction.

Manner of raising objection.
Time of objection.

Waiver of objections.

I. CIVIL SUITS AT COMMON LAW OR EQUITY

See, also, Const. art. 3, § 2, cl. 1, and notes thereunder.

1. Nature and extent of jurisdiction.The courts of the United States have jurisdiction at common law and in chancery; and wherever such jurisdiction may be appropriately exercised, there being no objection to the citizenship of the parties, the courts of the United States have jurisdiction. This is not derived from the power of the state, but from the laws of the United States. Fitch v. Creighton (1860) 65 U. S. (24 How.) 159, 16 L. Ed. 596; Hecker v. Fowler (1864) 2 Wall. 123, 128, 17 L. Ed. 759; Omaha Hotel Co. v. Wade (1877) 97 U. S. 13, 19, 24 L. Ed. 917.

The federal courts have no commonlaw jurisdiction or powers, as they derive all their powers from the Constitution and acts of Congress; but in the construction of all laws they must be guided by the rules of common law in the exercise of their special jurisdiction. Rice v. Minnesota & N. W. R. Co. (1861) 66 U. S. (1 Black) 358, 17 L. Ed. 147.

This provision confers on the district courts jurisdiction of suits in a civil nature at common law, or in equity between citizens of a state and citizens or subjects of a foreign state and treats of parties. Smith v. Farbenfabriken of Elberfeld Co. (1913) 203 Fed. 476, 121 C. C. A. 598.

The provision of section 1 of the federal judiciary act (Act March 3, 1875, c. 137, 18 Stat. 470, as amended by Act March 3, 1887, c. 373, § 1, 24 Stat. 552, and Act Aug. 13, 1888, e. 866, § 1, 25 Stat. 433) that the Circuit Courts should have original cognizance "of all suits of a civil nature" involving the requisite amount "in which there shall be a controversy between citizens of different states" conferred on those courts essential jurisdiction of all such suits, whether transitory or local in their nature, leaving only the question of venue to be determined. Kentucky Coal Lands Co. v. Mineral Development Co. (C. C. 1911) 191 Fed. 899.

2. "Suits of civil nature in law or equity," in general.-The clause "suits of civil nature at common law or in equity" does not restrict the jurisdiction to old and settled forms, but includes all suits in which legal rights are to be ascertained and determined. U. S. V. Block 121 (C. C. 1872) Fed. Cas. No. 14,610.

The phrase "common law" in the judiciary act of 1887-88 was used in con

tradistinction to equity, admiralty, and maritime jurisdiction and included all cases involving "legal" rights, though such rights were given by statute. Brisenden v. Chamberlain (C. C. 1892) 53 Fed. 307.

A proceeding in a court of common law or equity which culminates in a judgment that conclusively determines a right or obligation of the parties, so that the same matter cannot be further litigated except by writ of error or appeal, is a "suit," within the meaning of the federal judiciary acts. In re Stutsman County (C. C. 1898) 88 Fed. 337, criticizing In re City of Chicago (C. C. 1894) 64 Fed. 897.

The phrase "suits at common law" is used as distinguished from a criminal action, or from an action to enforce a regulation arising under the police power of a state, or an action to recover a penalty, and in contradistinction to equity, and admiralty and maritime jurisdiction. Kirby v. Chicago & N. W. R. Co. (C. C. 1900) 106 Fed. 551.

3. Actions under state penal statutes. -A state statute punishing railroad corporations by fine of from $500 to $5,000 for negligence causing death, to be recovered by indictment for the benefit of the widow and children and next of kin of decedent, while in form penal, was not strictly so, and the civil remedy in the alternative must be regarded as remedial in an international sense, authorizing action to be brought thereunder in the federal courts or the courts of another state. Boston & M. R. R. v. Hurd (1901) 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193, writ of certiorari denied Hurd v. Boston & M. R. Co. (1902) 22 S. Ct. 939, 184 U. S. 700, 46 L. Ed. 765.

A state statute requiring railroads to construct crossings on easy grades and keep such crossing in good order, and providing a forfeiture for violation thereof, held not so far penal that a civil liability enforceable in another state could not rest on a violation thereof. Strait v. Yazoo & M. V. R. Co. (1913) 209 Fed. 157, 126 C. C. A. 105, 49 L. R. A. (N. S.) 1068.

A state statute providing that, whenever any person shall die from any injury resulting from or occasioned by negligence, unskillfulness, or criminal intent, the defendant shall forfeit and pay the sum of $5,000, which may be sued for and recovered, irrespective of the actual damages caused by such death, is a penal statute, and, under the rule that such statutes can be enforced only within the sovereignty of their creation, a federal court in another state will not entertain an action thereunder. Marshall v. Wabash R. Co. (C. C. 1891) 46 Fed. 269.

An action based on a state statute to recover from a railroad company for a death caused by negligence is a penal action under a state statute, of which a federal court is without jurisdiction.

Lyman v. Boston & A. R. Co. (C. C. 1895) 70 Fed. 409; Perkins v. Same (C. C. 1898) 90 Fed. 321.

A state employers' liability act which authorizes an action to recover damages for the death of an employé, to be "assessed with reference to the degree of culpability of the employer or of the person for whose negligence the employer is liable," is not a penal statute in such sense that an action based thereon may not be maintained in a federal court. Malloy v. American Hide & Leather Co. (C. C. 1906) 148 Fed. 482.

Federal courts have jurisdiction to entertain actions for the recovery of penalties given by state statutes to individuals to compensate them for injuries sustained, but not of actions to recover penalties for the use of the state even if the nominal plaintiff is an individual, nor though a part of the penalty goes to the informer, where when collected it goes into the state treasury. Younts v. Southwestern Telegraph & Telephone Co. (C. C. 1911) 192 Fed. 200.

4, 5. Actions for damages.-An action between citizens of different states for damages for injury to land is of a civil nature and is a common-law action. Peyton v. Desmond (1904) 129 Fed. 1, 63 C. C. A. 651.

6. Appropriation of water.-The statutes of Idaho provide that one desiring to appropriate water from a stream must apply to the state engineer and obtain a permit; that, in case a stated part of the works has not been completed within a certain time, an after appropriator from the same stream may petition the state engineer for a revocation of the permit, and that officer, after investigation, shall either cancel the permit and notify the holder or refuse to do so and notify the petitioner; that in either case the party feeling himself aggrieved may appeal to the district court of the county in which the point of diversion is situated, making the other party defendant, and filing a petition and a copy of the petition to and decision of the state engineer. There is no further provision as to pleading or procedure. Held that, after such an appeal has been taken, the proceeding in the district court is a "suit of a civil nature at common law or in equity." WahaLewiston Land & Water Co. v. Lewiston-Sweetwater Irr. Co. (C. C. 1907) 158 Fed. 137.

7. Condemnation proceedings.- A proceeding for the condemnation of real estate is a civil suit. U. S. v. Inlots (C. C. 1873) Fed. Cas. No. 15,441; Same v. Block 121 (C. C. 1872) Id. 14,610; Kohl v. Hannaford (1875) 5 Ohio Dec. 306, 4 Am. Law Rec. 372.

A proceeding by the United States to take land for public use by condemnation is a suit at common law. Kohl v.