74 F. 16 | 6th Cir. | 1896
(after stating the facts as ahoye). It is first objected that this court has no jurisdiction of the appeal here
"Nor shall any circuit or district court llave 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 he 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.”
This clause has been construed by several circuit courts of the United Rates, and its effeei: has been held to be to prevent jurisdiction of the circuit and district courts in all suits by an assignee of a chose in action, except where the chose in action is a foreign bill of exchange, or where it is founded on an obligation made by a corporation that is payable to bearer, and is negotiable by mere delivery. Wilson v. Knox Co., 43 Fed. 482; Newgass v. City of New Orleans, 33 Fed. 196; Jackson & Sharp Co. v. Pearson, 60 Fed. 113. A contract to pay money for stock is a chose in action, within the meaning of this section. The term “chose in action'’ is one of comprehensive import. It includes tiie infinite variety of contracts, covenants, and promises which confer on one party the light to recover a personal chattel or sum of money from
But the jurisdiction under the bill is sought to be upheld on another ground. It is said that Smith, the receiver, was a necessary party to the bill, because he held the legal title to the subscription, afid that the action must be brought in his name, for the benefit of the equitable owner, and is therefore one arising under the laws of the United States within the decision of Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905. There is an averment in the bill that in the original contract of assignment it was agreed that the company should enforce the payment of the stock for the benefit of their contractors or their assignees, and that, as all assets of the company had passed into the hands of the receiver, it was the duty of the receiver to carry out this contract, and bring the suit for the benefit of the complainant. It is true that by the order of the court the receiver was vested with the power and right and title, so far as it was necessary, to take possession of the railroad, to operate it, and to assert the company’s title to any property in the hands of others. But the company had nothing except the naked legal title to the subscription. It had parted with all its beneficial interest. The naked legal title did not pass to the receiver, because it was not essential to the proper discharge of, his duties as receiver. Beach, Rec. § 195. Nor was there any ground for applying to the receiver to bring the suit on the subscription which the company had failed to bring. The receiver was not obliged to pay the claims against the company, or to perform its contracts. If the company had not complied with its contract to enforce the subscription, there "might possibly be a cause of action for damages, and a claim against its estate to be filed with the receiver, but it did not lie within the power of the court of equity to compel a compliance with the agreement