MAYER, District Judge.
At the threshold of this case is the question of jurisdiction. It is necessary to state only such facts as are germane to this question.
On June 14, 1916, plaintiff, as substituted trustee of S. H. P. Pell & Co., a partnership (hereinafter called Pell & Co.), commencel an action in the New York Supreme Court, New York county, to recover $133,328.34 with interest, as assignee of three claims: (1) A balance due on account between defendants and Pell & Co. (first and second causes of action); (2) a balance due on account between defendants and W. R. Craig & Co., which was assigned to Pell & Co. (third cause of action); and (3) a balance due on account between defendants and E. & C. Randolph which was assigned to Pell & Co. (fourth cause of action).
On November 25, 1914, Pell & Co. and the several members thereof were adjudicated involuntary bankrupts in proceedings duly had in the Southern district of New York. On January 25, 1915, their offer of composition in bankruptcy was duly confirmed and carried out.
The court appointed receivers, but a trustee in bankruptcy was not appointed; the bankruptcy proceeding having been terminated by the order confirming the composition offer and its performance.
The offer provided, among other things, that the receivers and the bankrupts should convey the entire bankrupt estate (both partnership and individual) to John W. Jay, who had been selected by the creditors to act as trustee in their behalf in carrying out the details of the composition, and this was approved and confirmed by the order of the District Court on January 25, 1915, directing the transfer of the entire bankrupt estate to Jay.
• The offer of composition provided for the contingency of Jay’s resignation and for filling the resultant vacancy by selection by seven creditors called an “executive committee.” Under this procedure, plaintiff ultimately was selected as substituted trustee, and Pell & Co. and the receivers transferred all their assets to Jay, and, the terms of the composition having been fully performed, the bankrupts were released as [701]*701provided in their offer and by section 14, subd. c, of the Bankruptcy Raw (Act July 1, 1898, c. 541, 30 Stat. 550 [Comp, St. 1916, § 9598]).
Among the assets' which came into plaintiffs hands were the three claims referred to supra.
Plaintiff obtained a warrant of attachment for $91,566.14 (first and second causes of action) in the New York Supreme Court, and the New York sheriff levied on property of defendants within the New York jurisdiction. The warrant did not apply to the third and fourth causes of action, and as these causes of action were stricken out by order o f the court, and no error is assigned, no- further reference need be made to them. The first cause o£ action was also stricken out, but the second cause of action on which plaintiff went to trial included all tlie allegations of the first cause of action.
Thereafter removal proceedings were had in the state court on the ground of diversity of citizenship, and, the cause having been removed to the District Court of the United States for the Southern District of New York, plaintiff, on October 2, 1916, as its first step, appeared specially, objected to the jurisdiction of the District Court, and moved to remand the case to the New York Supreme Court because of lack of jurisdicton, for reasons which will be discussed infra. This motion was denied by order dated October 5, 1916.
Defendants at all times were inhabitants of Charleston, in the Eastern district of South Carolina. The partnership of S. H. P. Pell & Co., (assignors of the first and second causes of action) was composed of three citizens of the state of New York, two of whom were residents of the Southern, district of New York and one of the Eastern district of New York. The present plaintiff is a New York corporation, having its principal place of business in the Southern district of New York.
At the trial, immediately after plaintiff’s opening, defendants, addressing themselves to the merits, moved to dismiss, whereupon plaintiff moved to amend the complaint in certain respects and leave so to amend was granted and the trial then proceeded, with the result, as heretofore stated, that a verdict was directed in favor of defendants.
The contentions of defendants in support of the judgment are that: (1) Plaintiff, by moving to amend at the trial, waived the question of venue and submitted to the jurisdiction; (2) plaintiff was not the as-signee of a chose in action; and (3) in any event, removal was a matter of absolute right.
[1] 1. We are unanimous in the view that, after plaintiff had specially appeared and moved to remand, it had protected and preserved its rights in that regard. The cases, inter alia, where waivers have occurred, are those where an amendment of a pleading has been made by the party seeking remand prior to his motion to remand.
It would be plainly unjust to deny to a litigant who, against his will, is compelled to submit to the jurisdiction, the same rights and privileges as to amendments to pleadings, as those which are accorded to any other litigant who may seek or submit to the jurisdiction.
[2] 2. Jay and this plaintiff were voluntary assignees of the choses in action and not trustees in the sense that title devolved upon them [702]*702by operation of law. The offer of composition comprehended a method of distribution through Jay or his successors, and for that purpose Jay was selected as the medium to whom the bankrupts’ property should be intrusted and by whom it should be distributed.
He was thus a mere assignee of these choses in action selected by agreement between the bankrupts and the creditors. The approval of the. offer of composition by the court and its sanction of the assignment put the, property of the bankrupt estate outside'the court’s power and terminated the jurisdiction of the court over both , the property and the transferee or assignee thereof. In re Hollins, 229 Fed. 349, 143 C. C. A. 469; Id., 238 Fed. 787, 151 C. C. A. 637; In re Frisch-knecht, 223 Fed. 417, 139 C. C. A. 11.
We are unanimous in holding that Jay, and therefore plaintiff, each became a voluntary assignee of the controverted choses in action.
[3-5] 3. Whether the cause should have been remanded depends on whether the Southern district of New York is the “proper district” as provided in section 28 of the Judicial Code.
Considering first the citizenship and residence of the members of the firm of Pell & Co., the assignors, plaintiff could have brought its action against defendants in the United States District Court for the Eastern District of South Carolina, but at no time could it have brought its action in the United States District Court for the Southern District of New York because all the members of Pell & Co. were not residents of the Southern district of New York. Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635; Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 U. Ed. 401.
In Ex parte Wisner, 203 U. S. 449, at page 451, 27 Sup. Ct. 150, 51 L. Ed.
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MAYER, District Judge.
At the threshold of this case is the question of jurisdiction. It is necessary to state only such facts as are germane to this question.
On June 14, 1916, plaintiff, as substituted trustee of S. H. P. Pell & Co., a partnership (hereinafter called Pell & Co.), commencel an action in the New York Supreme Court, New York county, to recover $133,328.34 with interest, as assignee of three claims: (1) A balance due on account between defendants and Pell & Co. (first and second causes of action); (2) a balance due on account between defendants and W. R. Craig & Co., which was assigned to Pell & Co. (third cause of action); and (3) a balance due on account between defendants and E. & C. Randolph which was assigned to Pell & Co. (fourth cause of action).
On November 25, 1914, Pell & Co. and the several members thereof were adjudicated involuntary bankrupts in proceedings duly had in the Southern district of New York. On January 25, 1915, their offer of composition in bankruptcy was duly confirmed and carried out.
The court appointed receivers, but a trustee in bankruptcy was not appointed; the bankruptcy proceeding having been terminated by the order confirming the composition offer and its performance.
The offer provided, among other things, that the receivers and the bankrupts should convey the entire bankrupt estate (both partnership and individual) to John W. Jay, who had been selected by the creditors to act as trustee in their behalf in carrying out the details of the composition, and this was approved and confirmed by the order of the District Court on January 25, 1915, directing the transfer of the entire bankrupt estate to Jay.
• The offer of composition provided for the contingency of Jay’s resignation and for filling the resultant vacancy by selection by seven creditors called an “executive committee.” Under this procedure, plaintiff ultimately was selected as substituted trustee, and Pell & Co. and the receivers transferred all their assets to Jay, and, the terms of the composition having been fully performed, the bankrupts were released as [701]*701provided in their offer and by section 14, subd. c, of the Bankruptcy Raw (Act July 1, 1898, c. 541, 30 Stat. 550 [Comp, St. 1916, § 9598]).
Among the assets' which came into plaintiffs hands were the three claims referred to supra.
Plaintiff obtained a warrant of attachment for $91,566.14 (first and second causes of action) in the New York Supreme Court, and the New York sheriff levied on property of defendants within the New York jurisdiction. The warrant did not apply to the third and fourth causes of action, and as these causes of action were stricken out by order o f the court, and no error is assigned, no- further reference need be made to them. The first cause o£ action was also stricken out, but the second cause of action on which plaintiff went to trial included all tlie allegations of the first cause of action.
Thereafter removal proceedings were had in the state court on the ground of diversity of citizenship, and, the cause having been removed to the District Court of the United States for the Southern District of New York, plaintiff, on October 2, 1916, as its first step, appeared specially, objected to the jurisdiction of the District Court, and moved to remand the case to the New York Supreme Court because of lack of jurisdicton, for reasons which will be discussed infra. This motion was denied by order dated October 5, 1916.
Defendants at all times were inhabitants of Charleston, in the Eastern district of South Carolina. The partnership of S. H. P. Pell & Co., (assignors of the first and second causes of action) was composed of three citizens of the state of New York, two of whom were residents of the Southern, district of New York and one of the Eastern district of New York. The present plaintiff is a New York corporation, having its principal place of business in the Southern district of New York.
At the trial, immediately after plaintiff’s opening, defendants, addressing themselves to the merits, moved to dismiss, whereupon plaintiff moved to amend the complaint in certain respects and leave so to amend was granted and the trial then proceeded, with the result, as heretofore stated, that a verdict was directed in favor of defendants.
The contentions of defendants in support of the judgment are that: (1) Plaintiff, by moving to amend at the trial, waived the question of venue and submitted to the jurisdiction; (2) plaintiff was not the as-signee of a chose in action; and (3) in any event, removal was a matter of absolute right.
[1] 1. We are unanimous in the view that, after plaintiff had specially appeared and moved to remand, it had protected and preserved its rights in that regard. The cases, inter alia, where waivers have occurred, are those where an amendment of a pleading has been made by the party seeking remand prior to his motion to remand.
It would be plainly unjust to deny to a litigant who, against his will, is compelled to submit to the jurisdiction, the same rights and privileges as to amendments to pleadings, as those which are accorded to any other litigant who may seek or submit to the jurisdiction.
[2] 2. Jay and this plaintiff were voluntary assignees of the choses in action and not trustees in the sense that title devolved upon them [702]*702by operation of law. The offer of composition comprehended a method of distribution through Jay or his successors, and for that purpose Jay was selected as the medium to whom the bankrupts’ property should be intrusted and by whom it should be distributed.
He was thus a mere assignee of these choses in action selected by agreement between the bankrupts and the creditors. The approval of the. offer of composition by the court and its sanction of the assignment put the, property of the bankrupt estate outside'the court’s power and terminated the jurisdiction of the court over both , the property and the transferee or assignee thereof. In re Hollins, 229 Fed. 349, 143 C. C. A. 469; Id., 238 Fed. 787, 151 C. C. A. 637; In re Frisch-knecht, 223 Fed. 417, 139 C. C. A. 11.
We are unanimous in holding that Jay, and therefore plaintiff, each became a voluntary assignee of the controverted choses in action.
[3-5] 3. Whether the cause should have been remanded depends on whether the Southern district of New York is the “proper district” as provided in section 28 of the Judicial Code.
Considering first the citizenship and residence of the members of the firm of Pell & Co., the assignors, plaintiff could have brought its action against defendants in the United States District Court for the Eastern District of South Carolina, but at no time could it have brought its action in the United States District Court for the Southern District of New York because all the members of Pell & Co. were not residents of the Southern district of New York. Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635; Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 U. Ed. 401.
In Ex parte Wisner, 203 U. S. 449, at page 451, 27 Sup. Ct. 150, 51 L. Ed. 264, it was held:
“In order to make a suit removable under section 2 of the act of 1SS7-1SSS, it must be one which the plaintiff could have brought originally in the United States Circuit Court, to which it would be removed by original process.”
It has long been settled that a defendant may insist upon Or waive his objection to venue (Interior Construction Co. v. Gibney, supra), but it is also settled by Ex parte Moore, 209 U. S. 490, 506, 28 Sup. Ct. 706, 52 L. Ed. 904, 14 Ann. Cas. 1164, that in a case where jurisdiction depends upon diversity of citizenship (Judicial Code, § 51) the plaintiff, in case of removal, also has the right to insist upon or waive his objection to the jurisdiction because the district is not the “proper district,” i. e., either the residence of plaintiff or of defendant.
As therefore Pell & Co', could not have brought the action originally in the District Court for the Southern District of New York, and as, on removal, plaintiff objected and moved to remand, there was no waiver by plaintiff, and the court had not jurisdiction.
This conclusion, we agree, must be arrived at under the authority of Ex parte Wisner, supra, and Ex parte Moore, supra, unless the latter case has been overruled, and it is urged in that connection that Matter of Tobin, 214 U. S. 506, 29 Sup. Ct. 702, 53 L. Ed. 1061, and Matter of Nicola, 218 U. S. 668, 31 Sup. Ct. 228, 54 L. Ed. 1203, have overruled Ex parte Moore.
[703]*703Some confusion has arisen in the interpretation of the Tobin and Nicola Cases. It has been thought by some (for instance, in Sagara v. Chicago, R. I. & P. Ry. Co. [C. C.] 189 Fed. 220) that the holding in the Tobin and Nicola Cases was based on the proposition that mandamus was not the proper remedy; but neither the opinion in the Tobin Case nor the chronological history of the cases of Matter of Tobin, Nicola, and Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324, 53 L. Ed. 252, 37 L. R. A. (N. S.) 392, justify this conclusion. Ex parte Harding, supra, was submitted and decided after the Tobin and Nicola Cases. In Ex parte Harding the court frankly disapproved Ex parte Wisner so far as that case held mandamus to be the proper remedy. Surely, if the Supreme Court had come to this conclusion when it decided the Tobin and Nicola Cases, it would have so stated.
An examination of the record in the Tobin Case confirms what the brief opinion of the court upon analysis makes clear. In that case, as well as in the Nicola Case, plaintiff was an alien. The only District Court where Tobin or Nicola could have brought suit originally was where the respective defendants were inhabitants. It will be noted that section 51 of the Judicial Code makes two classifications, as follows :
(1) “And, except as provided in the six succeeding sections, no civil suit shall he brought in any district court against any person by any original process or proceeding in any other district than that whereof ho is an inhabitant.”
(2) “But where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.”
As Tobin and Nicola were not citizens, the second classification did not apply to their cases.
There was therefore but one district where the respective defendants in Tobin and Nicola could be sued, i. e., the district whereof they were respectively inhabitants. The alien plaintiff could select no other, and, if the defendants chose to waive this privilege or right, neither the statute nor any judicial construction thereof conferred upon these alien plaintiffs any right to object. On the other hand, where the parties are citizens of different states and the action is founded only on that fact, the statute clearly authorizes the bringing’ of the suit in one of two places, i. e., the residence of the plaintiff or the defendant, and, as held in Ex parte Moore, supra, when the suit is brought elsewhere, either plaintiff or defendant has the right to object to removal on the ground that such removal takes the cause to a district other than the residence of the plaintiff or defendant.
The majority of the court therefore is of opinion that the Tobin and Nicola Cases did not in any manner affect nor relate to the point decided by Ex parte .Moore, supra, but were concerned with the consideration of an entirely different pari of section 51 of the Judicial Code from that necessarily considered in Ex parte Moore, supra. Finally, it may be added that, if the Supreme Court had intended to disapprove Ex parte Moore, it may be assumed that it would have so stated, particularly as in Ex parte Moore and Ex parte Harding the court did not hesitate to point out certain respects in which it discard[704]*704ed some views and expressions set forth-in Ex parte Wisner. Holding as we do that Ex parte Wisner (so far as applicable) and Ex parte Moore control the case at bar, we appreciate that situations may arise such as are illustrated by counsel and referred to in tire dissenting opinion. The answer is that statutes must be construed as enacted and as interpreted by controlling authority, and, if they are inadequate or create unexpected situations, the remedy, if one is desired, is (as may be tritely observed) by legislation; but meanwhile existing rights must be determined by the law as it stands.
Legislative attempts to limit jurisdiction sometimes do lead to incongruous results because it is not always possible to foresee the combination of litigant personnel which may or may not allow jurisdiction; but, while many federal statutes, because of their subject-matter, have increased the volume of litigation, the general tendency of congressional legislation has been to cut down rather than enlarge the jurisdiction of the United States courts as is illustrated by the increase of the jurisdictional amount from $2,000 or $3,000, by the elimination in the Judicial Code of the provision in section 739 of the Revised Statutes (Comp. St. 1916, § 1033) allowing suit to be brought in a district where a person “is found at the time of serving the writ,” by situations such as occurred in Smith v. Lyon, supra, and more recently by the provision as to nonremovability in the federal Employers’ Liabil-itv Act of April 5, 1910, c. 149, 35 Stat. 65 (Comp. St. 1916, §§ 8657-8665), Ulrich v. New York, N. H. & H. R. Co. (D. C.) 193 Fed. 768.
[8] Finally, in answer to the contention that this plaintiff, a resident of the Southern district of New York (and not its assignors), is “the plaintiff” within the meaning of section 51, we need refer only to the previous decision of this court in Consolidated Rubber Tire Co. v. Ferguson, 183 Fed. 756, 106 C. C. A. 330.
It follows that the judgment and the order of October 5, 1916, denying the motion to1 remand, must be reversed, and the District Court is instructed to grant the motion to remand.