Guy Irvine, For the Use of the Lumberman Bank At Warren v. Nathaniel Lowry
| Decision Date | 01 January 1840 |
| Citation | 10 L.Ed. 462,14 Pet. 293,39 U.S. 293 |
| Parties | GUY C. IRVINE, FOR THE USE OF THE LUMBERMAN'S BANK AT WARREN, v. NATHANIEL A. LOWRY |
| Court | U.S. Supreme Court |
ON a certificate of division from the Circuit Court of the United States for the Western District of Pennsylvania.
On the 6th of May, 1839, a writ of foreign attachment was issued out of the Court of Common Pleas of Warren county, Pennsylvania, in the name of Guy C. Irvine, for the use of the Lumberman's Bank at Warren, against Nathaniel A. Lowry, requiring bail in eighty thousand dollars. The action was founded on a promissory note, in the following terms:
'$53,000.
Warren, Pa., Sept. 6, '37.
'There months after date I promise to pay to the order of Guy C. Irvine, Esq. fifty-three thousand dollars, in office notes of the Lumberman's Bank at Warren, and payable at their banking house in Warren.
N. A. LOWRY.'
Endorsed on side, 'GUY C. IRVINE.'
The sheriff of Warren county attached certain real estate in the county; and also returned that he had attached the goods and chattels of Nathaniel A. Lowry, in the hands of certain persons named in the return. Among the garnishees was Guy C. Irvine.
On the 24th of October, 1839, Nathaniel A. Lowry, the defendant, presented a petition to the Court of Common Pleas of Warren county, stating that he was at the commencement of the action, and at the time of filing the petition, a resident and citizen of the state of New York; and that Guy C. Irvine, the plaintiff in the suit, is, and was at the commencement of the suit, a citizen of the state of Pennsylvania; and asking the Court to accept the security offered for entering his appearance in the Circuit Court of the United States, and in all things complying with the acts of Congress in such cases made and provided; he prayed the Court to proceed no further in the cause, and to allow the removal of the cause to the Circuit Court of the United States for the Western District of Pennsylvania.
The Court of Common Pleas granted leave for the removal of the cause to the Circuit Court; and the defendant gave a bond with security, for the entry of the cause in the Circuit Court.
On the same day on which the petition of Nathaniel A. Lowry was presented to the Court of Common Pleas of Warren county, the affidavits of Robert Falconer, President of the Lumberman's Bank at Warren, and of Walter W. Hodges, were filed.
The affidavit of Mr. Falconer stated, that at the date of the note on which the action was founded, he was President of the bank, and the note was received from the defendant at the time it bears date, as a security for his previous indebtedness to the institution; and that Guy C. Irvine had not then, or at any time since, any interest in the said note, except as guarantor for the payment of the same, and the solvency and sufficiency of the drawer of the note.
The affidavit of Mr. Hodges stated, that William Hall, Vine Elderken, Brown and Buckland, Starkweather and Brown, and sundry other persons, were stockholders in the Lumberman's Bank at Warren; and at the time of the institution of the suit were citizens of the state of New York, residing in that state.
The case being in the Circuit Court of the United States for the Western District of Pennsylvania, at the November sessions of the Court, Mr. Biddle, for the plaintiff, moved to remand the cause to the Court of Common Pleas of Warren county, for want of jurisdiction.
On the hearing of this motion before the Circuit Court, Mr. M'Candless, the counsel for the Lumberman's Bank at Warren, produced to the Court an act of the Assembly of Pennsylvania, passed the 28th of February, 1834, for chartering the bank; also an act of Assembly of Pennsylvania, of 21st March, 1813, entitled, An act to recharter certain Banks: and it was admitted that the bank commenced the business of banking at Warren, in Pennsylvania, having been organized under the act of 1824. The counsel for the bank also produced the note on which the suit had been brought.
The counsel for the bank stated, and the defendant's counsel admitted, that this suit was founded on the note.
The judges of the Circuit Court certified this division of opinion to the Supreme Court of the United States.
The case was argued by Mr. M'Candless, for the plaintiff; and by Mr. Marvin, for the defendant.
Mr. M'Candless contended, that Guy C. Irvine is a mere nominal party in the suit, except as guarantor of the sufficiency of Lowry, the defendant. He is one of the garnishees in the attachment; and he is a competent witness in the cause, under the decisions of the Courts of Pennsylvania. The nominal plaintiff, who assigns an obligation, is a competent witness in an action against the obligor; 9 Serg. and Raw. Rep. 20. 2 Brown's Rep. 171. The Courts of Pennsylvania, even after suit brought, allow a party on the record to assign the action, depositing with the clerk enough to cover the costs of the suit. 3 Binney's Rep. 306.
The reason of this rule is, that in Pennsylvania there are no Courts of Chancery; and the assignee of a chose in action, is therefore compelled to bring his suit in the name of the assignor. So also a bankrupt, who has obtained his certificate, and released his claim to the surplus of his estate, may be a witness. 4 Dall. 137. 2 Dall. 172. Cited also, 7 Serg. and Raw. Rep. 116. 3 Rawle's Rep. 407. 1 Peters' C. C. R. 308.
This Court have decided the question now depending before it. In Brown vs. Strode, 5 Cranch, 903, it was held, that the Courts of the United States have jurisdiction in a case between citizens of the same, when the plaintiffs are only nominal, for the use of an alien.
Who is the real party in this cause? It is not Guy C. Irvine, but the Lumberman's Bank, at Warren. This Court have said they would look at the real parties in the cause. In Wormley vs. Wormley, 8 Wheat. 421, Mr. Justice Story says, 'This Court will not suffer its jurisdiction to be ousted by the mere joinder, or non-joinder of formal parties.' The converse of the proposition is equally true.
It has been incontestably shown, 1. That Guy C. Irvine is not a party, or if a party, is only nominal. 2. That the Lumberman's Bank is the real party. 3. That this Court will look at the real parties, for the purpose of entertaining or excluding jurisdiction.
This is the case of a corporation aggregate, part of whose stockholders live in the same state as the defendant.
This Court has decided that a corporation aggregate cannot be a citizen, and cannot litigate in the Courts of the United States; unless in consequence of the characters of the individuals who compose a body politic. Hope Insurance Company vs. Boardman, 5 Cranch, 57. Bank of the United States vs. Deveaux, 5 Cranch, 61. Breithaupt vs. The Bank of Georgia, 1 Peters, 238. Paine's G. C. R. 410. Corporation of New Orleans vs. Winter, 1 Wheat. 91. 1 Wash. C. C. R. 146. Bank of Augusta vs. Earle, 13 Peters, 519. 1 Kent's Com. 324-326. 3 Cranch, 267. Commercial and Rail Road Bank of Vicksburg vs. Slocomb et al., decided at this term.
Another question arises in this case.
This was a foreign attachment; a proceeding in rem. Do the provisions of the Judiciary Act extend to any actions but those in personam? 1 Story's Laws, n. 1. 57.
The act of Congress gives jurisdiction to the Courts of the United States, in cases where 'the defendant is an inhabitant, or when he shall be found in the district at the time of serving the process.' Lowry was not an inhabitant of the Western District of Pennsylvania; nor found there at the time of serving the writ. He was at the time the writ issued, and afterwards, residing in the state of New York.
What is the object of the foreign attachment? It is a proceeding against the lands or goods of a defendant, to compel his appearance. Can a party plaintiff compel the appearance of a defendant in the Circuit Court, by issuing a foreign attachment. It has been decided that this cannot be done. 2 Dall. 369. Sergeant on Attachments, 42.
If a Circuit Court of the United States cannot have jurisdiction originally, can it have by the removal of a cause from a state Court.
It was not intended by the twelfth section of the Judiciary Act of 1789, to extent the jurisdiction of the Courts of the United States over causes brought before them on removal, beyond the limits prescribed to them originally. Conklin's Treatise, 78. No suit can be removed to the national Court, which might not, by the Constitution, have been originally commenced in those Courts.
As to the construction of the note on which the action was brought, the counsel cited, 1 Peters, 489. 3 Chitty on Commercial and Maritime Law, 107.
Mr. Marvin, for the defendant.
The question raised in this case has never yet been decided. Four questions have been presented in the argument for the plaintiff; but one only is depending. Has the Circuit of the Western District of Pennsylvania jurisdiction of the cause?
Is the Lumberman's Bank, at Warren, the...
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