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meaning of R. S. In re Baiz (1890)

minister, within the § 687, post, § 1210. 135 U. S. 403, 10 Sup. Ct. 854, 34 L. Ed. 222, denying writ of prohibition Hollander v. Baiz (D. C. 1890) 41 Fed. 732.

Under the Judicial Act of 1789, the circuit courts had concurrent jurisdiction with the Supreme Court in cases affecting foreign consuls. U. S. v. Ravara (C. C. 1793) Fed. Cas. No. 16,122, 1 L. Ed. 388.

Act Sept. 24, 1789, § 9, giving the district courts jurisdiction in civil cases against consuls and vice consuls, was not in conflict with Const. art. 3, giving the supreme court original jurisdiction in all cases affecting ambassadors, othGiter public ministers, and consuls. tings v. Crawford (C. C. 1838) Fed. Cas. No. 5,465.

Prior to the act of 1875 this section and R. S. § 711, post, § 1233, and the judiciary act of 1789, giving, up to the passage of the act of 1875, exclusive jurisdiction to federal courts of "all suits against consuls or vice consuls," embraced all suits to which the consul or vice consul was a necessary defendant, and the same construction must still prevail. Held, therefore, that a motion to dissolve an attachment against a consul's necessary co-defendant, for want of jurisdiction, should be denied. Froment v. Duclos (D. C. 1887) 30 Fed. 385.

Act Feb. 18, 1875, amending R. S. § 711, post, § 1233, by repealing the previous express exclusion of the state courts as to jurisdiction over suits against consuls, did not diminish the jurisdiction of the federal courts over the same actions. Id.

The constitutional provision giving to the supreme court "original jurisdiction" in all cases affecting ambassadors, other public ministers, and consuls (article 3, § 2) does not make that jurisdiction exclusive. Pooley v. Luco (D. C. 1896) 76 Fed. 146.

Joinder of consul as party as jurisdictional ground.-The fact that a consul of a foreign nation is a party to a suit does not give the federal court of the United States jurisdiction thereof. Pooley v. Luco (C. C. 1896) 72 Fed. 561.

A federal court has no jurisdiction merely because one party is a United States consul at a foreign port. Mil

ward v. McSaul (D. C. 1846) Fed. Cas. No. 9,624.

Codefendants.-Where jurisdiction depends upon the fact that one of the defendants is a foreign consul, and he is held not liable, judgment cannot be rendered against the others. Bixby v. Janssen (C. C. 1869) Fed. Cas. No. 1,452.

The consul of a foreign nation can be sued alone in the federal district court on a contract executed by him jointly with Valerino another person. Thompson (D. C. 1856) Fed. Cas. No. 16,813a.

V.

Estoppel to claim or waiver of privilege. Where the pleadings in an action against a foreign consul do not show that he is such, a judgment by default against him is valid; his failure to appear and plead to the jurisdiction of the court being a waiver of the want of jurisdiction. Hall v. Young (1825) 20 Mass. (3 Pick.) 80, 15 Am. Dec. 180.

Where, after suit brought in a state court, defendant accepted the office of consul of a foreign power, and allowed the action to proceed to trial upon the merits, without objecting that he was privileged to be sued in the federal courts alone, he was estopped to set up his privilege in proceedings in error. Koppel v. Heinrichs (N. Y. 1847) 1 Barb. 449.

Where a foreign consul is sued in a state court, he waives his privilege to be sued in the federal courts alone, by pleading to the merits; and, after verdict against him, he cannot avail himself of his privilege by affidavit on special motion. Flynn v. Stoughton (N. Y. 1848) 5 Barb. 115.

Where one who is a foreign consul pleads to the merits in the court below, and assigns his consulship as error in fact, neither the fact that he did not claim his privilege in the trial court, nor the fact that he contracted the debt jointly with one not having such privilege, is a waiver of the privilege to be exempt from suit in the state courts. Thompson v. Valarino (N. Y. 1850) 3 Code Rep. 143.

A foreign consul does not waive his privilege to be sued in the United States courts by appearing in the state court Valarino v. and pleading to the merits. Thompson (1853) 7 N. Y. (3 Seld.) 576. Criminal art. 3, § 2, cl. 1.

(19) Of suits and proceedings in bankruptcy.

prosecutions.-See Const.

Nineteenth. Of all matters and proceedings in bankruptcy.

R. S. § 563, par. 18. Act July 1, 1898, c 541, §§ 2, 23, 30 Stat. 545, 552. Act March 3, 1911, c. 231, § 24, par. 19, 36 Stat. 1093.

Notes of

See, also, post, §§ 9586, 9607, and notes thereunder.

Nature and extent of jurisdiction.District courts have original jurisdiction in their respective districts of all

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matters and proceedings in bankruptcy, and may hear and adjudicate the same according to the provisions of the Bankruptcy Act. Coit v. Robinson (1873) 19 Wall. 274, 278, 22 L. Ed. 152; Price v. Price (D. C. 1880) 48

Fed. 823; In re Tully (D. C. 1907) 156 Fed. 634, 635.

In a case arising under the bankrupt law of 1867, it was held that the circuit court had power to dismiss an appeal because it had not been entered in time. In re Woollen (1881) 104 U. S. 300, 26 L. Ed. 768.

The federal courts have jurisdiction in all cases in which suit is brought by or against the assignees, and he cannot be compelled to go into the state courts to assert his right as such. McLean v. Lafayette Bank (C. C. 1843) Fed. Cas. No. 8,885.

The federal court will exercise jurisdiction over distinct interests and parties, on allegations of fraud, in order to adjust liens and make distribution of assets. McLean v. Lafayette Bank (C. C. 1846) Fed. Cas. No. 8,888.

A bill will lie in the federal court to enjoin enforcement of a fraudulent judgment obtained by an assignee in bankruptcy against an alleged debtor of the bankrupt, though all parties are citizens of the same state. Noyes v. Willard (C. C. 1871) Fed. Cas. No. 10,374.

The federal court has jurisdiction of a common-law or equity suit by an assignee in bankruptcy appointed in another district, in a case of diverse citizenship, where the amount in dispute is sufficient. Payson v. Dietz (C. C. 1873) Fed. Cas. No. 10,861.

The federal court will entertain a bill by an assignee against several mortgagors and other lienholders to ascertain the amounts due, and sell all the property free from incumbrances. Sutherland v. Lake Superior Ship Canal, Railroad & Iron Co. (C. C. 1874) Fed. Cas. No. 13,643.

Where the bankrupts collect from their undertenants rent accruing before the bankruptcy, and secured by a lien upon crops, the district court has jurisdiction of a petition filed by the landlord to recover such fund. Wylie v. Smith (C. C. 1875) Fed. Cas. No. 18,110.

The jurisdiction acquired by a federal court sitting in equity, by virtue of the character of the complainant as assignee in bankruptcy, is not lost merely because the complainant has parted with all his title pendente lite; and the court also has jurisdiction of a cross bill filed by a new defendant, irrespective of his residence. Barnard v. Hartford, P. & F. R. Co. (C. C. 1878) Fed. Cas. No. 1,003.

The jurisdiction of bankruptcy courts includes everything necessary to settle, administer, and distribute the bankrupt's estate, but it does not include the protection of property set over to the bankrupt as exempt from adverse liens. Jeffries v. Bartlett (C. C. 1884) 20 Fed. 496, 498.

The fact that the state is a creditor does not affect the jurisdiction of the bankruptcy court. In re Greenville &

C. R. Co. (D. C. 1872) Fed. Cas. No. 5,787.

Under Act 1867, the federal district courts had jurisdiction both in law and equity. In re Fendley (D. C. 1874) Fed. Cas. No. 4,728.

The district court has full power, as a court of equity, to settle all controversies between the bankrupt and his creditors. Fowler v. Dillon (D. C. 1875) Fed. Cas. No. 5,000.

The district court has jurisdiction of a controversy as to the ownership of a fund in the hands or under the control of the assignee, without regard to the residence of the parties in interest. In re Sabin (D. C. 1878) Fed. Cas. No. 12,195.

Where the jurisdiction depends upon the fact that one of the plaintiffs is assignee of a bankrupt whose estate is interested in the controversy, jurisdiction ceases if the interest of the estate ceases, and the cause will be dismissed as to the assignee. Moore v. O'Fallon (D. C. 1882) 10 Fed. 593.

A district court of the United States has jurisdiction of an action brought by a trustee in bankruptcy in the name of the United States on the bond of a former trustee to recover the value of property for which he has failed to account. U. S. v. Union Surety & Guaranty Co. (D. C. 1902) 118 Fed. 482, 486.

Where a court of admiralty in a suit in rem acquired jurisdiction of the libeled vessel and the parties before the institution of bankruptcy proceedings against the owner in another district, and has sold the vessel and holds the proceeds, it can exercise its jurisdiction only so far as to determine the rights of the parties in admiralty, and any rights claimed under the bankruptcy law must be submitted to and determined by the court of bankruptcy having jurisdiction. The William B. Kibbee (D. C. 1908) 164 Fed. 653.

Adverse claimants in bankruptcy proceedings may, in the proper case, sue or be sued, in the Court of the United States, when the bankrupt might have sued there on the same cause of action, viz., where there is a diversity of citizenship and the requisite amount is involved. In re MacDougall (D. C. 1909) 175 Fed. 400.

A federal question within the jurisdiction of the United States court is raised where, in ejectment, it appears that the land was set apart to plaintiff as an exemption in bankruptcy proceedings, and that notwithstanding the land was sold by the United States marshal after the adjudication, under an execution levied before; the purchaser being defendant's grantor. Cannon (1885) 75 Ga. 300.

Lord v.

Diversity of citizenship.-The federal court has no jurisdiction of a bill by the assignee of a bankrupt firm against a member thereof and his assignee, where both are citizens of the same state, to

require such assignee to pay complainant a surplus after individual creditors are satisfied. Act 1867, § 2. Stevens v. Appleton (C. C. 1874) Fed. Cas. No. 13,394.

Suits by an assignee in bankruptcy are excepted from the general rule that the federal courts have no jurisdiction of controversies between citizens of the same states, and this exception includes a suit by such assignee against a person not a party to the proceedings in bankruptcy. Atkinson v. Purdy (D. C. 1844) Fed. Cas. No. 616.

Derivation of title from decree in bankruptcy.-The fact that a complainant in a suit to quiet title founds his claim on a title derived from a decree in bankruptcy will not give the federal court jurisdiction to entertain the suit when an action of ejectment for the land in controversy is pending in the state court, and no relief could be granted without enjoining such action. McAlpine v. Tourtelotte (C. C. 1885) 24 Fed. 69.

Controversies between assignee and third persons.-The district courts have original jurisdiction of all cases and controversies between third persons and an assignee in bankruptcy as such. Bachman v. Packard (C. C. 1872) Fed. Cas. No. 709; Hallack v. Tritch (C. C. 1878) Fed. Cas. No. 5,956.

Controversies between bankrupt and assignee. The district court has exclusive jurisdiction of all controversies between the assignee and the bankrupt, depending on his relation as such. Carr v. Gale (C. C. 1847) Fed. Cas. No. 2,434.

Collection of assets and recovery of preferences.-The district court of the United States, in a district other than that in which the bankruptcy proceedings are pending, has no jurisdiction of a suit by an assignee to recover assets of the bankrupt or moneys paid in violation of the bankruptcy acts. Shearman v. Bingham (D. C. 1871) Fed. Cas. No. 12,733; Jobbins v. Montague (D. C. 1872) Fed. Cas. No. 7,330; Lamb v. Damron (D. C. 1873) Fed. Cas. No. 8,014. CONTRA, Sherman v. Bingham (C. C. 1872) Fed. Cas. No. 12,762; Moore v. Jones (D. C. 1848) Fed. Cas. No. 9,768; Goodall v. Tuttle (D. C. 1872) Fed. Cas. No. 5,533.

Under R. S. § 630, the federal court had jurisdiction of a bill by an assignee to recover money or property of the bankrupt preferentially or fraudulently conveyed. Giveen v. Smith (C. C. 1871) Fed. Cas. No. 5,467; Flanders v. Abbey (C. C. 1874) Fed. Cas. No. 4,851; Little v. Alexander, Id. 8,393; Main v. Glen (D. C. 1875) Fed. Cas. No. 8,973.

Suits may be brought by an assignee in bankruptcy in the federal courts to collect assets due the estate, without reference to amount or value in contro

versy. Dutcher v. Wright (1876) 94 U. S. 553, 558, 24 L. Ed. 130; Payson v. Coffin (C. C. 1877) Fed. Cas. No. 10,858.

United States district courts have no jurisdiction over independent suits brought by a trustee in bankruptcy to assert a title to money or property as assets of the bankrupt, against strangers to the bankruptcy proceedings, unless by consent of the proposed defendant; such jurisdiction being denied to them by section 23 of the bankruptcy act of 1898. Bardes v. First Nat. Bank (1900) 20 Sup. Ct. 1000, 1003, 178 U. S. 524, 44 L. Ed. 1175.

In summary proceedings in bankruptcy by a trustee against third persons to recover property claimed adversely, the bankruptcy court has jurisdiction to determine whether the claim asserted is merely colorable, but may not, against claimants' objection, pass on the truthfulness of the witnesses and the weight of the testimony as affecting the merits of the claim. In re Yorkville Coal Co. (1914) 211 Fed. 619, 128 C. C. A. 570.

The court had jurisdiction under R. S. § 630, of an action against a resident of the district, brought by an assignee appointed in another state to recover a preference or to collect assets. Brooke v. McCraken (C. C. 1874) Fed. Cas. No. 1,932; Hunt v. Jackson (C. C. 1866) Fed. Cas. No. 6,893; Gindrat v. Dane (C. C. 1874) Fed. Cas. No. 5,455; Post v. Rouse (C. C. 1874) Fed. Cas. No. 11,300. CONTRA, Lathrop v. Drake (C. C. 1873) Fed. Cas. No. 8,109.

The district court has jurisdiction of an action by an assignee to recover a balance due from a principal to the bankrupt as factor at the time of the presentation of his petition in bankruptcy. Kelly v. Smith (C. C. 1848) Fed. Cas. No. 7,675.

The assignee may sue in the circuit court on a note of which the bankrupt is payee (Act 1841). Pritchard v. Chandler (C. C. 1855) Fed. Cas. No. 11,436.

The federal court has not jurisdiction of suits brought by the assignee of the bankrupt, simply to collect the assets. Woods v. Forsyth (C. C. 1888) Fed. Cas. No. 17,992; Same v. Jackson Iron Mfg. Co. (C. C. 1874) Fed. Cas. No. 17.993.

The federal court has jurisdiction of a bill filed by an assignee in bankruptcy in the nature of a creditors' bill to reach assets in the hands of third parties, where the amount in dispute exceeds the statutory amount, and the controversy is between citizens of the state where it was brought and the citizens of another state. Spaulding v. MeGovern (C. C. 1874) Fed. Cas. No. 13,217.

The federal court has no jurisdiction of a bill in equity filed by creditors before the appointment of an assignee to

restrain a chattel mortgagee in possession from disposing of the goods of an alleged bankrupt. Johnson v. Price (C. C. 1876) Fed. Cas. No. 7,407.

Under Act 1867, § 2, a circuit court had jurisdiction of a cross bill, filed by an assignee in bankruptcy in a district other than that in which the decree in bankruptcy was made, to redeem mortgaged property in which the complainant has the legal title to the equity of redemption. Barnard v. Hartford, P. & F. R. Co. (C. C. 1878) Fed. Cas. No. 1,003.

A suit by an assignee to set aside a fraudulent conveyance, after the discharge of property concealed prior thereto, is not a suit to annul the discharge, and may therefore be brought in the circuit court. Nicholas v. Murray (C. C. 1878) Fed. Cas. No. 10,223.

Avoidance of assignments.-The federal court has jurisdiction of an action to set aside a general assignment by the bankrupt, and distribute the property among the lien and general creditors. McLean v. Meline (C. C. 1843) Fed. Cas. No. 8,890.

A receiver, appointed in supplementary proceedings prior to the filing of a petition in bankruptcy against the debtor, may sue the assignee in bankruptcy and a prior voluntary assignee in the district court to set aside an assignment to the latter as void in fact

and under the statute. Olney v. Tanner (D. C. 1879) Fed. Cas. No. 10,506.

Annulment of discharge.-The district court in which a bankrupt obtained his discharge has jurisdiction to entertain an original bill by a creditor who has proved his debt against a bankrupt, in order to vacate and discharge a certificate in bankruptcy obtained in such court on the imputations of fraud. Commercial Bank v. Buckner (1857) 20 How. 108, 15 L. Ed. 862.

The district court has inherent power to entertain a petition of creditors to vacate a certificate of discharge of a bankrupt. Allen v. Thompson (D. C. 1882) 10 Fed. 116.

Pleading. Where a cause of action under the Bankruptcy Law over which a United States court has jurisdiction is stated, the jurisdiction is not ousted by failure to allege diverse citizenship, or that the amount involved is more than $3,000. Milkman v. Arthe (D. C. 1914) 213 Fed. 642.

Cited without definite application, Parks v. Booth (1880) 102 U. S. 96, 26 L. Ed. 54; Leroux v. Hudson (1883) 3 Sup. Ct. 309, 312, 109 U. S. 468, 27 L. Ed. 1000; In re Wood (1908) 28 Sup. Ct. 621, 210 U. S. 246, 52 L. Ed. 1046; Lehman v. La Forge (C. C. 1890) 42 Fed. 493, 494.

(20) Of suits against the United States.

Twentieth. Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, however, That nothing in this paragraph shall be construed as giving to either the district courts or the Court of Claims jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as "war claims," or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commission authorized to hear and determine the same, or to hear and determine claims for pensions; or as giving to the district. courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And provided further, That no suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women, first accrued during marriage, of (817)

1 U.S.COMP.'16-52

persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury.

Act March 3, 1887, c. 359, § 1, 24 Stat. 505. Act June 27, 1898, c. 503, § 1, 30 Stat. 494. Act July 1, 1898, c. 546, § 3, 30 Stat. 649. Act Feb. 26, 1900, c. 25, 31 Stat. 33. Act March 3, 1911, c. 231, § 24, par. 20, 36 Stat. 1093.

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1. Re-enactment of former statute, and saving of jurisdiction.-See, also, note post, as to "Claims for fees, salary, or compensation of officers."

By this subdivision the amendment by Act June 27, 1898, c. 503, to Act March 3, 1887, c. 359, was re-enacted, but to save the jurisdiction of cases then pending under the Act of 1887 it was enacted that no suit pending on June 27, 1898, shall abate or be affected by this provision, and this language is clear and means that while suits under the act of 1887 then pending shall not be executed, causes of action existing, but not pending, cannot be

Decisions

maintained in a District Court under the judicial code. Wells v. Russellville Anthracite Coal Min. Co. (D. C. 1913) 206 Fed. 528.

2. Suits against government in general.-See, also, notes at end of the Constitution.

Since the United States are not suable of common right, a party who institutes such suit must bring same within the authority of some act of Congress, or the court cannot exercise jurisdiction over it. U. S. v. Clarke (1834) 8 Pet. 436, 444, 8 L. Ed. 1001. The judiciary act does not authorize a suit against the United States in any of the federal courts. U. S. v. Tillou (1867) 73 U. S. (6 Wall.) 484, 18 L. Ed. 920; Id. (1867) 3 Ct. Cl. 454.

The United States cannot be sued without its consent. Cunningham v. Macon & B. R. Co. (1883) 3 Sup. Ct. 292, 296, 109 U. S. 446, 27 L. Ed. 992.

The government is not liable to be sued for the torts, misconduct, misfeasances, or laches of its officers or employés, unless its consent thereto is given in some act of Congress. Bigby v. U. S. (1903) 23 Sup. Ct. 468, 471, 188 U. S. 400, 47 L. Ed. 519.

Since a sovereign can be sued only by his own consent, he may prescribe the conditions on which he will be sued. Treat v. Farmers' Loan & Trust Co. (1911) 185 Fed. 760, 108 C. C. A. 98, affirming judgments Central Trust Co. of New York v. Treat (C. C. 1909) 171 Fed. 301, and Farmers' Loan & Trust Co. v. Same, Id. 302.

Right to sue the United States in their own courts is strictly limited by the statutes granting the consent (Tucker Act), which cannot be extended by the courts. Reid Wrecking Co. v. U. S. (D. C. 1913) 202 Fed. 314.

3. Suits against federal officers or agents. See, also, notes at end of the Constitution.

A suit to restrain the Secretary of the Interior from carrying out the provisions of Act June 27, 1902, c. 1157, 32 Stat. 400, controlling the disposition of the pine lands ceded by the Indians of the state of Minnesota, under Act Jan. 14, 1889, c. 24, 25 Stat. 642, to the United States, to be administered for their benefit, and to require him to execute the trust, and account, is, in ef

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