Mr. Justice SWAYNE
delivered the opini of of the court.
Two questions have been argued and are presented for our consideration. They are:
Whether the residence of the parties as disclosed in the record was such as gave the court below jurisdiction of the case? and
Whether William Yerger and Warren P. Anderson had such a lien, by equitable assignment, upou the fund in controversy as warranted the decree appealed from.
The solution of these questions requites a brief statement of the case as it appears in the record
Richard Christmas held three notes of Lyons payable to himself, all dated November 30th, 1859, each for the sum of $16,666.50, and payable respectively, one, two, and three years from date. Richard Christmas assigned aud delivered them to his son, H. H. Christmas. H. H. Christmas made a compromise with Lyons whereby these notes were delivered up to the maker, and he executed to H. H. Christmas, in their stead, two notes, each for $8339.90, one payable December 1st, 1866, the other February 1st, 1868. Both were secured by a mortgage upon real estate. H. H. Christmas hypothecated one of the notes to Payne, Huntiugton & Co., of New Orleans, to secure a debt which he owed them.
Suits upon the notes were instituted in the court where this bill was filed. The suit upon one of the notes was in the name of H. TI. Christmas for his own use. The other was in his name for the use of Payne, Huntington & Co. A bill was also filed in the same court to foreclose the mortgage. It set out the rights of H. H. Christmas and of Payne, Huntington & Co. touching the notes. On the 1st of May, 1868, H. H. Christmas entered into an agreement with Mary Christmas, whereby in consideration of her assuming the payment of the debt, due to Payne, Huntington & Co., he transferred to her the note hypothecated to them. Payment to them was made out of her means, and they delivered up the note. The foreclosure bill was amended by the substitution of her name for that of Payne, Huntington & Co., and an application, which is still pending, was made for the like substitution in the suit at law upon the note transferred to her. A judgment was recovered upon the other note.
In this condition of things the complainants filed their bill. It alleges the following state of facts: Russell, now deceased, for himself and the use of the complainants other than his executors, recovered a judgment against Richard Christmas, which was taken to the Supreme Court of the United States by a writ of error. William Yerger and Warren P. Anderson became his sureties in the error bond. The judgment was affirmed by this court, and the sureties thus became liable on their bond. The sureties executed the bond upon a promise of indemnity by their principal. He subsequently gave them a lien for this purpose upon one of the original notes of Lyons. It is claimed that this lien attaches to the notes taken in substitution for them. Richard Christmas is hopelessly.insolvent, and has gone into bankruptcy. The complainants seek to be subrogated to the rights of the sureties and to enforce the alleged lieu for the satisfaction of the judgment. The bill alleges that the complainants are all residents of the State of Kentucky; that the defendants, Richard, H. H., and Mary Christmas are all residents of the same State, and that the defendants, Yerger
and the legal representatives of Anderson and Lyons, are residents of the State of Mississippi.
No party to the original suits has had any connection with the filing of this bill. Lyons, the defendant in these suits, asks no protection against them. He did not answer the bill, but allowed a decree
pro confesso
to go against bim. The case which the bill makes is wholly outside of the litigation in the suits at law. It is alien to everything involved in those proceedings. It alleges a lien upon the liability of Lyons, prior and paramount to the right of H. H. Christmas as plaintiff for his own benefit in one of the suits at law, and to that of Mary Christmas as
cestui que use
in the other. The controversy is wholly between them and the complainants. The bill is essentially an original one. In no sense can it be held to be auxiliary or ancillary to the action at law. Can such a bill be maintained?
The Constitution, article 3, limits the judicial power of the United States to “controversies between citizens of different States.” There are exceptions which do not affect this, case, and need not, therefore, be more particularly adverted to. The act of 1789
declares that “no civil suit shall be brought ... against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant or in which he shall be found at the time of serving the writ.” The act of 1839
authorizes the voluntary appearance of parties in regard to whom there is ho inherent and insuperable jurisdictional objection, in suits elsewhere than in the district in which they reside, or in which they may be found.
In the light of these provisions it is clear that this bill cannot be maintained-as an original one; and we think it equally clear that it cannot be maintained as an auxiliary or supplementary bill, because it is not one of that character. The case falls clearly within the rules laid down by this court, upon the subject of.parties, in
Shields
v.
Barrow.
The several adjudications of this court upon the point under consideration have been referred to by the counsel on both sides.
Those cases call for a few remarks. In the five earliest cases the defendants in the suits at law were complainants in the suits in equity. In one of
them, Dunn
v. Clark, a judgment had been recovered against Dunn and others in the Circuit Court for the District of Ohio. The plaintiff, who was a citizen of Virginia, had died. The defendants filed their bill in the same court, praying for an injunction and a conveyance of the premises. All the complainants and all the defendants in the chancery suit were citizens of Ohio. This court said:
"
The injunction bill is not considered an original bill between the same parties aa at law, but if other parties are made in the bill and different interests involved, it must be considered to that extent at least an original bill, and the jurisdiction of the Circuit Court must depend Upon the citizenship of the parties.” It was further said, that as there appeared to be matters-of equity in the case which could be investigated by a State court it would be reasonable and just to stay all proceedings on the judgment until the complainants 'Should have time to seek relief from a State tribunal. The decree of the Circuit Court was modified accordingly.
In
Freeman
v. Howe, it appears that White had sued in the Circuit Court of the United States for Massachusetts and attached certain property of the defendant. The property was taken from the possession of the marshal by a -writ of replevin issued from a State court.
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Mr. Justice SWAYNE
delivered the opini of of the court.
Two questions have been argued and are presented for our consideration. They are:
Whether the residence of the parties as disclosed in the record was such as gave the court below jurisdiction of the case? and
Whether William Yerger and Warren P. Anderson had such a lien, by equitable assignment, upou the fund in controversy as warranted the decree appealed from.
The solution of these questions requites a brief statement of the case as it appears in the record
Richard Christmas held three notes of Lyons payable to himself, all dated November 30th, 1859, each for the sum of $16,666.50, and payable respectively, one, two, and three years from date. Richard Christmas assigned aud delivered them to his son, H. H. Christmas. H. H. Christmas made a compromise with Lyons whereby these notes were delivered up to the maker, and he executed to H. H. Christmas, in their stead, two notes, each for $8339.90, one payable December 1st, 1866, the other February 1st, 1868. Both were secured by a mortgage upon real estate. H. H. Christmas hypothecated one of the notes to Payne, Huntiugton & Co., of New Orleans, to secure a debt which he owed them.
Suits upon the notes were instituted in the court where this bill was filed. The suit upon one of the notes was in the name of H. TI. Christmas for his own use. The other was in his name for the use of Payne, Huntington & Co. A bill was also filed in the same court to foreclose the mortgage. It set out the rights of H. H. Christmas and of Payne, Huntington & Co. touching the notes. On the 1st of May, 1868, H. H. Christmas entered into an agreement with Mary Christmas, whereby in consideration of her assuming the payment of the debt, due to Payne, Huntington & Co., he transferred to her the note hypothecated to them. Payment to them was made out of her means, and they delivered up the note. The foreclosure bill was amended by the substitution of her name for that of Payne, Huntington & Co., and an application, which is still pending, was made for the like substitution in the suit at law upon the note transferred to her. A judgment was recovered upon the other note.
In this condition of things the complainants filed their bill. It alleges the following state of facts: Russell, now deceased, for himself and the use of the complainants other than his executors, recovered a judgment against Richard Christmas, which was taken to the Supreme Court of the United States by a writ of error. William Yerger and Warren P. Anderson became his sureties in the error bond. The judgment was affirmed by this court, and the sureties thus became liable on their bond. The sureties executed the bond upon a promise of indemnity by their principal. He subsequently gave them a lien for this purpose upon one of the original notes of Lyons. It is claimed that this lien attaches to the notes taken in substitution for them. Richard Christmas is hopelessly.insolvent, and has gone into bankruptcy. The complainants seek to be subrogated to the rights of the sureties and to enforce the alleged lieu for the satisfaction of the judgment. The bill alleges that the complainants are all residents of the State of Kentucky; that the defendants, Richard, H. H., and Mary Christmas are all residents of the same State, and that the defendants, Yerger
and the legal representatives of Anderson and Lyons, are residents of the State of Mississippi.
No party to the original suits has had any connection with the filing of this bill. Lyons, the defendant in these suits, asks no protection against them. He did not answer the bill, but allowed a decree
pro confesso
to go against bim. The case which the bill makes is wholly outside of the litigation in the suits at law. It is alien to everything involved in those proceedings. It alleges a lien upon the liability of Lyons, prior and paramount to the right of H. H. Christmas as plaintiff for his own benefit in one of the suits at law, and to that of Mary Christmas as
cestui que use
in the other. The controversy is wholly between them and the complainants. The bill is essentially an original one. In no sense can it be held to be auxiliary or ancillary to the action at law. Can such a bill be maintained?
The Constitution, article 3, limits the judicial power of the United States to “controversies between citizens of different States.” There are exceptions which do not affect this, case, and need not, therefore, be more particularly adverted to. The act of 1789
declares that “no civil suit shall be brought ... against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant or in which he shall be found at the time of serving the writ.” The act of 1839
authorizes the voluntary appearance of parties in regard to whom there is ho inherent and insuperable jurisdictional objection, in suits elsewhere than in the district in which they reside, or in which they may be found.
In the light of these provisions it is clear that this bill cannot be maintained-as an original one; and we think it equally clear that it cannot be maintained as an auxiliary or supplementary bill, because it is not one of that character. The case falls clearly within the rules laid down by this court, upon the subject of.parties, in
Shields
v.
Barrow.
The several adjudications of this court upon the point under consideration have been referred to by the counsel on both sides.
Those cases call for a few remarks. In the five earliest cases the defendants in the suits at law were complainants in the suits in equity. In one of
them, Dunn
v. Clark, a judgment had been recovered against Dunn and others in the Circuit Court for the District of Ohio. The plaintiff, who was a citizen of Virginia, had died. The defendants filed their bill in the same court, praying for an injunction and a conveyance of the premises. All the complainants and all the defendants in the chancery suit were citizens of Ohio. This court said:
"
The injunction bill is not considered an original bill between the same parties aa at law, but if other parties are made in the bill and different interests involved, it must be considered to that extent at least an original bill, and the jurisdiction of the Circuit Court must depend Upon the citizenship of the parties.” It was further said, that as there appeared to be matters-of equity in the case which could be investigated by a State court it would be reasonable and just to stay all proceedings on the judgment until the complainants 'Should have time to seek relief from a State tribunal. The decree of the Circuit Court was modified accordingly.
In
Freeman
v. Howe, it appears that White had sued in the Circuit Court of the United States for Massachusetts and attached certain property of the defendant. The property was taken from the possession of the marshal by a -writ of replevin issued from a State court. The marshal appeared in that court and.set up as a defence that he held the property when it was taken -from him, by viytue of ptocess issued froip .the Circuit Court. This defence was overruled and the judgment against him was affirmed by the Supreme Court of the State. That judgment was reversed by this
court upon the ground that the Circuit Court, having first acquired possession of the
res,
could not be deprived of that possession until the litigation there was brought to a close. This was the, only point involved in the case and the only one decided. The learned judge who delivered the opinion remarked that the marshal’s possession might have been protected by a proceeding in equity. In that connection he made certain remarks which were entirely proper as regards the facts of the case before him, but it is a misapprehension to suppose they are of universal application or that they can affect a case of the character of the one under consideration.
The last of this series of cases is
Jones
v.
Andrews.
Andrews, a citizen of New York, recovered a judgment in the Circuit Court of the United States for the Western District of Tenuessee against Reed and Bryson, by default. For the satisfaction of that judgment he sued out a writ of garnishment to seize in the hands of the judgment debtors the notes to them of Jones, a citizen of Georgia. Thereupon Jones filed a,bill in equity in the same court, wherein he alleged that Reed & Bryson had transferred the notes to Audrews in payment of their debt to him; that they owed Andrews nothing when he sued them; that the judgment was obtained by collusion, and that the writ of garnishment was a contrivance to enable Andrews to avoid the necessity of a direct suit against Jones, and to deprive Jones of a valid defence which he had against the notes. Andrews appeared in the case voluntarily. This court held that the bill was well brought as an original oue under the act of 1839, and also as one incidental and auxiliary to the garnishment proceeding. On both points the judgment was correctly given. According to the face of the bill Jones was to be as much affected by the garnishment proceeding, and a bill was as necessary for his protection and to the due administration of justice as if he had been a party to the record in the garnishment case.
The course indicated in
Dunn
v.
Clark
should have been
pursued in this case. The bill should have been filed in the proper State court and an application should have been made to the Circuit Court to hold the proceeds of the suits at law under its control until the right to them should have been settled by an adjudication of the State court between the conflicting claimants. There would be no more inconsistency or embarrassment in these different proceedings than there is where a mortgagor resorts in different courts to the several remedies which he is entitled to pursue at the same time. He may file a bill to foreclose in one court, sue at law to recover his debt in another, and bring an action of ejectment to recover possession of the mortgaged premises in a third. Each of such courts will see in the end that its process is not abused and that no wrong is done to the debtor.
The evidence relied upon to support the alleged lien, consists, so far as it is necessary to consider it, of letters from Richard Christmas to Yerger, written before Richard transferred to H. H. Christmas the notes originally given to Richard by Lyons. In a letter of the 25th of October, 1865, Richard said : “ I feel great uneasiness about your liability on the bond in suit of Russell against me. I have ever held the Lyons note as sacred for the payment of this debt, and have it now in New York, endeavoring to sell it, with the mortgage, to pay this debt; I expect, to hear from it daily. If not sold I will send it to you as soon as I return.” On the 14th of February, 1866, he wrote: “I could not'safely send you the Lyons note by mail as it is payable to me or bearer — hence if lost might put me to much trouble.” On the 21st of the same month he said: “ You may rest assured I will protect you with the Lyons note.” In the next letter, of the 12th of May following, he announced the transfer of the notes to H. H. Christmas, and said: “In this I hope I have not lost sight of my purpose to protect you.” These letters contain no words of transfer, and nothing w'hich by construction or otherwise can have any effect in that way. At most they are only evidence of a promise to pay the
judgment, if affirmed, out of the proceeds of one of the notes, and to send the note, if not sold, to Yerger.
An agreement to pay out of a particular fund, however clear in its terms, is not an equitable assignment; .a covenant in the most solemn form has no greater effect. The phraseology employed is not material provided the intent to transfer is manifested. Such an intent and its execution are indispensable. The assignor must not retain any control over the fund — any authority to collect, or any power of revocation. If he do, it is fatal to the claim of the assignee. The transfer must be of such a character that the fund-holder can safely pay, and is compellable to do so, though forbidden by the assignor. Where the transfer is of the character described, the fund-holder is bound from the time of notice.
A bill of exchange or check is not. an equitable assignment
pro tanto
of the funds of the drawer in the hands of the drawee.
But an order to pay out of a specified fund has always been held to be a valid assignment in equity and to fulfil all the requirements of the law.
These views are fatal to the claim asserted by the complainants in behalf of the sureties on the bond.
Upon both the grounds which have been considered, the decree of the Circuit Court must be reversed, and the bill dismissed. The cause will be remanded with directions to
Proceed accordingly.