Opinion of the court. the Circuit and District Courts were the same as were allowed at that time in the courts of the State, including such matters as the travel and attendance of the parties, fees for copies of the case, and abstracts for the hearing, compensation for the services of referees, auditors, masters, and assessors, and many other matters not embraced in the fee bills, since passed by Congress.* Most of the provisions of that act were incorporated into the second section of the act of the 8th of May, 1792, but the particular regulation, adopting the State fee bill as the rate of fees in the Circuit and District Courts, was not reproduced in that section, as that fee bill had already been adopted by the Federal courts.† Since that time, costs in the Circuit and District Courts, held in the old States, have been taxed under that regulation as adopted by that act, except so far as the rates of fees have been changed by subsequent legislation.‡ Congress, by the act of the 1st of March, 1793, regulated more specifically the taxation of costs in admiralty proceedings in the District Courts.§ Fees of the attorney and counsellor were prescribed by the 1st section of the act. They were a stated fee of three dollars for drawing and exhibiting the libel, claim, or answer in each cause; three dollars for drawing interrogatories, and three dollars for all other services in any one cause. Nine dollars only could be taxed for the services of an attorney or counsellor, but the 4th section of the act provided, that there be allowed and taxed, in the Federal courts, in favor of the parties obtaining judgments therein, such compensation for their travel and attendance, and for attorney and counsellor's fees, except in the District Courts, in causes of admiralty and maritime jurisdiction, as are allowed in the Supreme or 536. Crosby v. Folger, 1 Sumner, 514; Brown v. Stearns, 13 Massachusetts, † Ibid. 276; Hathaway v. Roach, 2 Woodbury & Minott, 68; Hovey v. Stevens, 3 Id. 17. Whipple v. Cotton, 3 Story, 84. 1 Stat. at Large, 332. Opinion of the court. Superior Courts of the respective States. Passed to continue in force only for one year, and, from thence, until the end of the next session of Congress thereafter, it was suffered to expire, but it was renewed by the act of the 31st of March, 1796, and was continued in force two years longer, and to the end of the next session of Congress.* Detailed provision was made by the subsequent act of the 28th of February, 1799, for compensation to marshals, clerks, district attorneys, jurors, witnesses, and criers, but the special provision allowing counsel fees was dropped.† Even while it remained in force, it did not authorize such an allowance in a case like the present, as cases of admiralty and maritime jurisdiction in the District Courts were expressly excepted from the operation of the provision. Ordinary costs in admiralty suits were doubtless taxed under that act, as if it was in force long after it had expired, but it never furnished any authority to charge counsel fees in the District Courts; but if it did, and if it had not expired, it. would be repealed by the present law. Fees and costs, allowed to the officers therein named, are now regulated by the act of the 26th of February, 1853, which provides, in its, 1st section, that in lieu of the compensation now allowed by law to attorneys, solicitors, proctors, district attorneys, clerks, marshals, witnesses, jurors, commissioners, and printers, the following and no other compensation shall be allowed. Attorneys, solicitors, and proctors may charge their clients reasonably for their services, in addition to the taxable costs, but nothing can be taxed as cost against the opposite party, as an incident to the judgment, for their services, except the costs and fees therein described and enumerated. They may tax a docket fee of twenty dollars on a final hearing in admiralty, if the libellant recovers fifty dollars, but if he recovers less than fifty dollars, the docket fee of the proctor shall be but ten dollars.§ * 1 Stat. at Large, 453. † Ib. 624. 10 Stat. at Large, 161. The Sloop Canton, 21 Law Reporter, 473; The Liverpool Packet, 2 Sprague 37; The Conestoga, 2 Wallace, Jr., 116. Statement of the case. Reference is made to two cases where counsel fees were allowed, but it is a sufficient answer to those cases to say, that they were decided before the act of Congress, under consideration, was passed. They do not, therefore, furnish the rule of decision in the case before the court. DECREE REVERSED. BRADLEY . RHINES' ADMINISTRATORS. 1. In a suit brought by the assignee of a chose in action in the Federal court on the contract so assigned, it is necessary that plaintiff shall show affirmatively that such action could have been sustained if brought by the original obligee. 2. The burden of proof in such case is on the plaintiff, when the instrument and its assignment are offered under the plea of the general issue. ERROR to the Circuit Court for the Western District of Pennsylvania; the case being this: Section eleven of the Judiciary Act of 1789, which defines the jurisdiction of the Circuit Courts as regards citizenship, after declaring that no person shall be sued in any other district than that of which he is an inhabitant, or in which he shall be found at the service of the writ, adds: "Nor shall any District or Circuit Court have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange." With this provision in force Bradley sued the administrators of one Rhines in the court below, describing himself in the declaration as a citizen of Kentucky, and alleging the defendants, whom he described as administrators, to be citizens of Pennsylvania. He declared, in a special count on a contract of lease, and in two common counts for money had and received by defendants' intestate to plaintiff's use, and for money laid out and expended at his request. The Argument for the plaintiff in error. lease, which was set out in the declaration, was made by Breeden & Co., described as of Elk County, Pennsylvania, as lessors, and Andrew Hines and Hiram Carmen, lessees, and it was alleged that Breeden & Co. had assigned the lease to the plaintiff. A trial was had before a jury on the plea of the general issue, in which the plaintiff offered in evidence the lease, its execution and assignment being admitted by defendants. The court refused to admit the lease in evidence, and the plaintiff took a bill of exceptions to the ruling. As the lease was the foundation, so to speak, of the plaintiff's action, the plaintiff, after its rejection by the court, offered no further evidence, and verdict and judgment went for the defendant. The ruling of the court just mentioned was the error assigned. Mr. Lucas, for the plaintiff in error : 1. Neither in point of fact nor law was this lease a chose in action. A lease and the term created by it, so far as the tenants are concerned, constitute a chattel real, and so far as the landlord is concerned, they are but a part of his original estate in the premises leased. Had a sum of money been due from the tenants to Breeden & Co. as rent, and had Breeden & Co. continued to be the owners of the lands leased, and simply assigned to the plaintiff the lease as the evidence of the debt due by the tenants for such rent in arrears, it would, under those circumstances, have been a case of an assignment of a chose in action merely. But here Breeden & Co. were, at the time of the making of the lease, the owners of the land in fee. During the continuance of the lease, and before the expiration of the term, Breeden & Co. sold and conveyed the whole of the leased premises to Bradley, the present plaintiff, in fee. This conveyance carried with it the lease, with all its benefits, without any formal assignment of the lease.* Wherever the right passes by operation of law, the case * Johnston v. Smith, 3 Pennsylvania, 496; Bank of Pennsylvania v. Wise, 3 Watts, 394. Opinion of the court. does not fall within the exception contained in the 11th section of the Judiciary Act.* 2. It does not appear that Breeden & Co. were citizens of Pennsylvania when the suit was brought. The presumption is the other way; and the jurisdiction, thus presumably existing, can be defeated only by positive proof that the presumption is a false one in fact. 3. The objection to jurisdiction upon the ground of citizenship, in actions at law, can only be made by a plea in abatement, as is decided by this court in De Sobry v. Nicholson. It came, therefore, too late. Mr. Wills, contra (citing on his first point various statutes of Pennsylvania), contended that the ruling was correct, because 1. That Hiram Carmen, the partner and survivor of the defendant's intestate, could alone be sued by the law of the State named. 2. That the plaintiff suing as assignee of Breeden & Co., who are citizens of Pennsylvania, the Circuit Court for that district could have no jurisdiction of the action under the 11th section of the Judiciary Act of 1789. Mr. Justice MILLER delivered the opinion of the court. The first proposition made by the counsel for the defendant in error, and by which the ruling of the court is maintained, depends for its soundness on the construction to be given to certain statutes of Pennsylvania, and will not be examined by us if the ruling of the court is well founded as to the second proposition. There can be no doubt that the lease sued on here is a chose in action, and the assignors are described in the instrument as residing in the same State with defendants. Two propositions are relied on as taking this case out of the prohibition of the statute: * Sere v. Pitot, 6 Cranch, 336; Mayer v. Foulkrod, 4 Washington's Circuit Court, 349. 3 Wallace, 420, and the cases therein cited. |