Change of residence before suit.-Mere residence is prima facie evidence of a change of domicile (Shelton v. Tiffin, 6 How. 163; Butler v. Farnsworth, 4 Wash. C. C. 101); but an intention to remove permanently to another State is never presumed. (Reed v. Bertrand, 4 Wash. C. C. 514.) It must be proved by acts and not from declarations. (Butler v. Farnsworth, 4 Wash. C. C. 101; Shelton v. Tiffin, 6 How. 163.) The exercise of the right of suffrage after change is proof, but citizenship may be proved by acts, although all rights of a citizen are not shown to have been claimed or exercised. (Shelton v. Tiffin, 6 How. 163.) If the removal is real a citizen may remove to be able to sue in the circuit court (Catlett v. Pac. Ins. Co., 1 Paine, 594; Briggs v. French, 2 Sum. 251; Cooper v. Galbraith, 3 Wash. C. C. 546; C stor v. Mitchell, 4 Wash. C. C. 191); but the removal must be bona fide animo manendi, and not merely ostensible, temporary, or colorable (Jones v. League, 18 How. 76; Case v. Clark, 5 Mason, 70; Rice v. Houston, 13 Wall. 66; Gardner v. Sharp, 4 Wash. C. C. 609; Butler v. Farnsworth, 4 Wash. C. C. 101; Read v. Bertrand, 4 Wash. C. C. 514; Shelton v. Tiffin, 6 How. 163); so of an administrator. (Rice v. Houston, 13 Wall. 66.)

Change after suit.-Jurisdiction depends on the state of things at the bringing of the action, and subsequent events cannot oust it. (Mollan v. Torrance, 9 Wheat, 537; Dunn v. Clarke, 8 Peters, 1.) So it cannot be divested by a change of residence of either party (Morgan v. Morgan, 2 Wheat, 290; Connolly v. Taylor, 2 Peters, 556); and so where the action survives on the death of a party, and his administrator continues the suit (Clarke v. Matthewson, 12 Peters, 164; Whyte v. Gibbs, 20 How. 541; Trigg v. Conway, Hemp. 711; Hatfield v. Bushnell, 1 Blatchf. 393); or in proceedings to enforce a judgment (Hatch v. Dorr, 4 McLean, 112); or judgment may be revived by scire facias. (Penn v. Klyne, Peters C. C. 446.)

§ 88. Suits by assignees.—Nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to re

cover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder, if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made. (Act of March 3, 1875, 18 U. S. Stats. 470, as amended by Act of March 3, 1887, 24 U. S. Stats. 552, and re-enacted to correct enrollment Aug. 13, 1888, 25 U. S. Stats. 433.)

Suits by assignee of choses in action.-Since the act of 1875 the assignee of a chose in action may sue in the Federal court. (Van Bokkelin v. Cook, 5 Sawy. 587.) Where a party claims through an assignment, he must affirmatively show that the action might have been sustained by the assignor. (Turner v. Bank, 4 Dall. 8; Mollan v. Torrance, 9 Wheat. 537; Bank of U. S. v. Moss, How. 31; Bradley v. Rhines, 8 Wall. 393.) Choses in action include all debts and all claims for damages for breach of contract (Bushnell v. Kennedy, 9 Wall. 387); all contracts, promises, and covenants for the delivery of the chattels or moneys (Sheldon v. Sill, 8 How. 441); open accounts or unliquidated accounts, as well as promissory notes (Sere v. Pitot, 6 Cranch, 332; Wilkinson v. Wilkinson, 2 Curt. 582), and all torts, when connected with contracts (Bushnell v. Kennedy, 9 Wall. 387); but not torts arising from a breach of some duty to which the law attaches damages (Barney v. Globe Bank, 5 Blatchf. 107); nor does the term apply to an action by an assignee to recover the possession of the chose in action or damages for its wrongful detention (Deshler v. Dodge, 16 How. 622); as an action of replevin to recover a bank bill (Deshler v. Dodge, 16 How. 622); nor does the term "assignee" in the proviso in this section include executors and administrators (Chappedelaine v. Dechenaux, 4 Cranch, 306; Childress v. Emory, 8 Wheat. 642; Meyer v. Foulkrod, 4 Wash. C. C. 349); but an assignment by operation of law, as to an assignee in insol

FED. PROC.-25.

vency proceedings, is within the proviso (Sere v. Pitot, 6 Cranch, 332); or of a receiver in such proceedings. (Bradford v. Jenks, 2 McLean, 130.) The phrase "promissory notes negotiable by the law-merchant" contemplates notes in the hands of a bona fide purchaser for value, subject to no equities in favor of the maker. (Gregg v. Weston, 7 Biss. 360.) All cases not specially within the exception in this section are within the general operation of the act (Briggs v. French, 2 Sum. 251); for if the assignor could maintain the action at the time the suit was commenced, the assignee may sue. (Chamberlain v. Eckert, 2 Biss. 126; but see Thaxter v. Hatch, 6 McLean, 68.) The assignee of an appearance bail may sue; although the marshal and defendants are citizens of the same State. (Bobyshall v. Oppenheimer, 4 Wash. C. C. 482.) The holder of a foreign bill of exchange may sue in the circuit court (Buckner v. Finley, 2 Peters, 586); or of a bank bill (Wood v. Dummer, 3 Mason, 308); or he may sue a stockholder, although the note is payable to bearer. (Bullard v. Bell, 1 Mason, 243.) The holder of a note may sue thereon in the Federal courts, although the nominal payee could not (Bank v. Wistar, 2 Peters, 318; Smith v. Clapp, 15 Peters, 125; Bonnaffee v. Williams, 3 How. 574; Halstead v. Lyon, 2 McLean, 226; Sackett v. Davis, 3 McLean, 101; Bullard v. Bell, 1 Mason, 243; Towne v. Smith, 1 Wood. & M. 115.) As to holder of an accommodation note, see Noell v. Mitchell, 4 Biss. 346; of a non-negotiable note, see Shuford v. Cain, 1 Abb. U. S. 302; or although the payee indorsed it (Varner v. West, 1 Woods, 493); and so where maker and payee were citizens of different States (White v. Leary, 3 Dill. 378; Kirkham v. Hamilton, 6 Peters, 20); but if both maker and payee are citizens of the same State, an indorsee cannot sue in the Federal courts (Keary v. Bank, 16 Peters, 99; Gibson v. Chew, 16 Peters, 315; Dromgoole v. Bank, 2 How. 241; Coffee v. Planters' Bank, 13 How. 183; Willes v. Newberry, 4 McLean, 226; Shuford v. Cain, 1 Abb. U. S. 302; Small v. King, 5 McLean, 147); nor can he sue a remote indorser if the intermediate indorser could not (Mollan v. Torrance, 9 Wheat. 537); but if the indorsee and the immediate indorser are citizens of different States, he may sue in the

circuit court (Young v. Bryan, 6 Wheat. 146; Evans v. Gee, 11 Peters, 80; Coffee v. Planters' Bank, 13 How. 183; Campbell v. Jordan, Hemp. 534; Dennison v. Larned, 6 McLean, 496; Codwise v. Gleason, 3 Day, 3), although the intermediate indorser could not. (Wilson v. Fisher, Bald. 133; Milledollar v. Bell, 2 Wall. Jr. 334.) If the first and second indorsers agree to share the loss, the former may sue on the agreement, although the latter and the payee are citizens of the same State. (Phillips v. Preston, 5 How. 278.) If a note does not, under the laws of the State, possess the qualities of a negotiable instrument, the assignee cannot sue. (Gregg v. Weston, 7 Biss. 360.) The assignee of a note and mortgage, if of the requisite citizenship, may file a bill to foreclose in the circuit court (Seckel v. Backhaus, 7 Biss. 354); but if they are assigned by delivery, he cannot maintain the action if the assignor and mortgagor are citizens of the same State (Mersman v. Werges, 3 Fed. Rep. 378; 1 McCrary, 528; reversed 112 U. S. 139); so of the assignee of a bond and mortgage. (Sheldon v. Sill, 8 How. 441; Hill v. Winne, 1 Biss. 275; contra, Dundas v. Bowler, 3 McLean, 204.) The assignee of a municipal bond, if negotiable, may sue in the circuit court (Porter v. Janesville, 3 Fed. Rep. 617; Halsey v. Township, 3 Fed. Rep. 364); or of a negotiable bond, although the obligor and the person to whom it was issued were citizens of the same State. (White v. Vermont & M. R. R. Co., 21 How. 575; Lexington v. Butler, 14 Wall. 282; Bradley v. Williams, 3 Hughes, 26.) A coupon payable to bearer is negotiable by the law merchant (Pettit v. Hope, 18 Blatchf. 180), and the holder may sue in the Federal courts (Thomson v. Lee Co., 3 Wall. 327; McCoy v. Washington, 3 Phila. 290; Pettit v. Hope, 2 Fed. Rep. 623); although the party from whom he received it could not maintain the action. (Cooper v. Thompson, 13 Blatchf. 434; see Clark v. Janesville, 1 Biss. 98.) An equitable assignee of a claim to an account cannot sue if his assignor could not. (Wilkinson v. Wilkinson, 2 Curt. 582.) A suit to compel a specific performance or to enforce its stipulations was not, under this section, maintainable by an assignee. (Corbin v. Black Hawk Co., 105 U. S. 659; Deshler v. Dodge, 16 How. 622; Bushnell v. Kennedy, 9 Wall. 387; Sere v. Pitot, 6

Cranch, 332.) The assignee of a judgment founded on contract cannot sue unless suit might have been brought had assignment not been made. (Walker v. Howes, 104 U. S. 245.) If a bill is filed to set aside a judgment, the assignee of the judgment creditor may file a cross-bill to enforce the judgment, although both parties are citizens of the same State. (Railroad Cos. v. Chamberlain, 6 Wall. 748.) The assignee of a judgment against a foreign debtor may file a bill in the circuit court to set aside a fraudulent conveyance made by the debtor (Dexter v. Smith, 2 Mason, 303); and so can the assignee of a judgment against an indorser of a bill of exchange. (Bean v. Smith, 2 Mason, 252.) If the assignee obtains judgment on a note, he may sue to enforce a lien on certain property of the judgment debtor. (Ober v. Gallagher, 93 U. S. 199.) An assignee may prosecute an action founded on a tort without regard to the citizenship of the assignor (Van Bokkelin v. Cook, 5 Sawy. 587); so of the assignee of a right of action for damages for failure to protect a note from protest. (Barney v. Globe Bank, 5 Blatchf. 107; Bernards Township v. Stebbins, 109 U. S. 341; Independent School District v. Hall, 113 U. S. 135; Farmington v. Pillsbury, 114 U. S. 138; New Providence v. Halsey, 117 U. S. 336; Cashman v. Amador etc. Canal Co., 118 U. S. 58; Shoecraft v. Bloxham, 124 U. S. 730; Blacklock v. Small, 127 U. S. 96; So. Montalet v. Murray, 4 Cranch, 46; Morgan v. Gay, 19 Wall. 81.)

Assignment to confer jurisdiction.—The circuit court has jurisdiction of a controversy between citizens of different States, although property was conveyed to one of the parties to enable the court to entertain the suit (McDonald v. Smalley, 1 Peters, 620; Smith v. Kernochen, 7 How. 198; Osborne v. Brooklyn City R. R. Co., 5 Blatchf. 366; Foote v. Hancock, 15 Blatchf. 343; Newby v. Oregon Cent. R. R. Co., 1 Sawy. 63; Briggs v. French, 2 Sum. 251; Hoyt v. Wright, 4 Fed. Rep. 168); but the transfer must be absolute (De Laveaga v. Williams, 5 Sawy. 573); and not merely colorable (Maxfield v. Levy, 2 Dall. 381; Jones v. League, 18 How. 76; Barney v. Baltimore, 6 Wall. 280; see Richardson v. Mattison, 5 Biss. 31), nor collusive (Marion v. Ellis, 9 Fed. Rep. 367; S. C. 10 Fed. Rep. 410: