Bardley v. Rhines' Administrators
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 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 eatate 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 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.
^1 Johnston v. Smith, 3 Pennsylvania, 496; Bank of Pennsylvania v. Wise, 3 Watts, 394.
^2 Sere v. Pitot, 6 Cranch, 336; Mayer v. Foulkrod, 4 Washington's Circuit Court, 349.
^3 3 Wallace, 420, and the cases therein cited.