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EMSHEIMER v. NEW ORLEANS

May 19, 1902

EMSHEIMER
v.
NEW ORLEANS



CERTIFICATE FROM THE UNITED STATED CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT

Fuller, Harlan, Brewer, Brown, Shiras, Jr., White, Peckham, McKenna; Gray took no part in the decision.

Author: Fuller

[ 186 U.S. Page 42]

 MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

This is a certificate under section six of the Judiciary Act of March 3, 1891, 26 Stat. 826, c. 517, and it is settled as to such certification that each question propounded must be a definite point or proposition of law clearly stated, so that it can be definitely answered without regard to other issues of law in the case; that each question must be a question of law only and not of fact, or of mixed law and fact; and that the certificate cannot embrace the whole case, even where its decision turns on matter of law only and even though it be split up in the form of questions. Graver v. Faurot, 162 U.S. 435; McKeen v. Railroad Company, 149 U.S. 249.

Rule 37 provides: "Where, under section six of the said act, a Circuit Court of Appeals shall certify to this court a question or proposition of law, concerning which it desires the instruction of this court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises." In this case there is no such statement, but the entire record is certified, and the questions contemplate an examination of the whole case and in large part its decision on the merits.

We cannot regard this certificate as in compliance with the rule, and are constrained to decline to answer the second and

[ 186 U.S. Page 43]

     third questions, but we think we may properly answer the first question in view of the narrow limits by which it was apparently intended to be circumscribed.

The judicial power extends to controversies between citizens of different States; and between citizens of a State and citizens or subjects of foreign States; but the Judiciary Act of September 24, 1789, provided that the District and Circuit Courts of the United States should not "have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless the 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," 1 Stat. 78, c. 20, § 11; and the same provision of the act of March 3, 1887, as corrected by that of August 13, 1888, is in these words: "Nor shall any Circuit or District Court have cognizance of any suit, except upon foreign bills of exchange, to recover 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." 25 Stat. 433-4, c. 866, § 1.

To prevent abuse of the constitutional right to resort to the Federal courts, jurisdiction in respect of assignees or transferees was thereby denied except as to suits upon foreign bills of exchange; suits upon choses in action payable to bearer and made by a corporation; and suits that might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made. New Orleans v. Quinlan, 173 U.S. 191.

The bill shows that at the time this suit was brought the Circuit Court had jurisdiction as between plaintiff and defendant, and also that the payees of these warrants might themselves then have instituted it, if there had been no assignment or transfer. We lay out of view as inapplicable the limitation on amount prescribed as to parties plaintiff by another clause with a different purpose.

But it is objected that the restriction relates to ...


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