GKIFFITH, Circuit Judge
(after stating the case ut supra). The first two grounds on which the motion goes, rest on the assumption that the defendant is not within the jurisdiction of the court. If we discharge him on common bail for this, it must be on the precise question of jurisdiction; we must say that it appears to us he was a citizen of Pennsylvania on the 29th January, 1801, or, that this is a case within the 11th section of the act of congress passed the 24th September, 17S9, which enacts, “that no district or circuit court shall have cognizance of any suit to recover the contents of any promissory note, or other chose in action, in favour 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.”
Prima facie, the plaintiffs' right to ‘ bail must be admitted; no pretence of actual satisfaction is set up, and they hold the securi[818]*818ties which are evidence of a subsisting debt. An application for a discharge on the head of jurisdiction, presents no equity, no merits; to the purpose of this motion it admits the demand; but says, this court ought not to try it, or enforce payment. If we discharge the defendant on a common appearance, we do in effect decide the main question between the parties as to the remedy in this court, against the plaintiffs. Possibly, a plaintiff might be held to bail in a case so plainly without the jurisdiction of the court, that we would decide on it in this collateral way, and free him from arrest upon the presumption that his plea in abatement, which would follow, must infallibly prevail. I say such a case might happen; as for instance, if it should be sworn that the plaintiff and defendant were native citizens, and had always lived together in the city of Philadelphia: on such proof uncontradicted, the court might direct an exoneretur on the ground of a vexatious and oppressive arrest; they would not permit a plaintiff, on such a pretence, to imprison the defendant until a formal trial of the plea. But. where the plaintiff has color for his suit in this court; where he controverts the very fact on which the defendant founds his claim to exemption; where in his process, and on the motion, he insists that the defendant is not a citizen of the same state; in such circumstances, it would be too much for the court to decide upon its jurisdiction in this summary way. It would be injurious to both parties, for us to pretend to try a question of this hind, depending partly on fact, and partly on law, on such an application. We must forestall the question. If we mistake by deciding against the plaintiff, he may afterwards, indeed, get a verdict on the plea in abatement; but then he has lost his security, if the defendant’s person should not be within the reach of our process. On the other hand, to decide against the defendant, would be to subject him to a premature decision; and generally, this practice would be introductive of a double trial: first, on the motion for common bail, and then, on the plea. The point to be considered, then, on this head, is, whether the proof of co-citizenship is so clearly established, as to justify us in deciding in favor of it on motion.
Mr. Greenleaf s counsel have argued, and very forcibly, that his inhabitancy in Pennsylvania from the fall of 1790, and settled residence there, payment of taxes, &e. will constitute him a citizen of that state, and so a' co-citizen with the plaintiffs. Their position is, that as neither the constitution of the United States, nor that of Pennsylvania, nor the laws of either, have defined the terms on which a citizen of one state may become the citizen of another, the only criterion is settled inhabitancy. Whenever a citizen of one state goes into another, and makes that other his home, or where he establishes his domicil, he is there, for the time being, a citizen of that state to which he goes, within the meaning of the constitution of the United States (article 3, § 2), which gives jurisdiction to this court between citizens of different states. This is certainly a constitutional question, and undecided; and though at present, I do not see what other principle can be adopted, yet I am unwilling to act upon it, until brought before us in a more solemn way, by plea to the jurisdiction.
It might be said, the plaintiffs by prosecuting him as a citizen of Maryland, admit the principle that inhabitancy gives a title to_ citizenship; and it is indeed true that he was' resident in Maryland, only part of the months of August and December, 179S, and In January and August, 1799, about his bankruptcy. No admission, however, of the plaintiffs, on a question of law, can have any weight. If he is a citizen of Massachusetts only, we must say so; and should it be so determined, I do not see but that the plaintiffs' action may be sustained: their describing the defendant as a citizen of Maryland, may be rejected, it being sufficient to maintain the action, tiiat he is a citizen of a state other than that where the plaintiffs are citizens.
So much on the general question, as argued by the defendant’s counsel. But beside this, the plaintiffs meet the defendant on his own principles, and contend that he was actually a citizen of Maryland, in August, 1799, as appears by his discharge under the bankrupt law there, which could not be without proving himself to the chancellor a citizen of that state: that he must be taken, upon his own showing, to have become a citizen there in 1799, is very clear: whether he is yet so, or whether he belongs to Massachusetts, or by his former and subsequent residence in Pennsylvania, was a citizen of that state at his arrest, we cannot now determine. It is á question, to say no more of it, attended with some doubts both of law and fact, and therefore not fit to be decided on this motion.
The defendant's case has been put on the 11th sec. of the act of congress of the 24th September, 1789, and it is argued, that at the original drawing of the bill, and before the assignment, no action could have been maintained in the federal court, by Greenleaf against the drawer or acceptor, he and they being citizens of Pennsylvania; and therefore it is inferred that the endorsees cannot maintain an action against the endorser, though of a different state at the time of the commencement of their suit. But it is evident that this involves the same general question, whether Greenleaf was a citizen of Pennsylvania at all. If he was not. then the argument from the act of congress wants the fact to bear it out. Again, it is evident, that at the drawing of the bill in May, 179G, the defendant was not a citizen of Pennsylvania; his residence in Philadelphia did not [819]*819commence until the fall of that year. But again, at what- time is the relative citizenship of the parties to the bill to decide the jurisdiction? Certainly when the bill becomes payable; when the drawer, or accept- or, or endorser may be sued. Now the defendant could not sue the acceptor or drawer in this case, until May, 1799. And where, upon his own showing, was he a citizen at that time? Most probably in Maryland. On this ground, then, the question is not so clear as to justify a decision against our cognizance of the cause, upon motion.
In addition to these reasons I would observe, that an exception to the jurisdiction, in its nature, is not entitled to particular fa-vour; and unless very clear indeed, there seems to be a propriety in putting the party to his plea, if he would oust the court of its cognizance of the cause.
But another general ground is taken.
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GKIFFITH, Circuit Judge
(after stating the case ut supra). The first two grounds on which the motion goes, rest on the assumption that the defendant is not within the jurisdiction of the court. If we discharge him on common bail for this, it must be on the precise question of jurisdiction; we must say that it appears to us he was a citizen of Pennsylvania on the 29th January, 1801, or, that this is a case within the 11th section of the act of congress passed the 24th September, 17S9, which enacts, “that no district or circuit court shall have cognizance of any suit to recover the contents of any promissory note, or other chose in action, in favour 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.”
Prima facie, the plaintiffs' right to ‘ bail must be admitted; no pretence of actual satisfaction is set up, and they hold the securi[818]*818ties which are evidence of a subsisting debt. An application for a discharge on the head of jurisdiction, presents no equity, no merits; to the purpose of this motion it admits the demand; but says, this court ought not to try it, or enforce payment. If we discharge the defendant on a common appearance, we do in effect decide the main question between the parties as to the remedy in this court, against the plaintiffs. Possibly, a plaintiff might be held to bail in a case so plainly without the jurisdiction of the court, that we would decide on it in this collateral way, and free him from arrest upon the presumption that his plea in abatement, which would follow, must infallibly prevail. I say such a case might happen; as for instance, if it should be sworn that the plaintiff and defendant were native citizens, and had always lived together in the city of Philadelphia: on such proof uncontradicted, the court might direct an exoneretur on the ground of a vexatious and oppressive arrest; they would not permit a plaintiff, on such a pretence, to imprison the defendant until a formal trial of the plea. But. where the plaintiff has color for his suit in this court; where he controverts the very fact on which the defendant founds his claim to exemption; where in his process, and on the motion, he insists that the defendant is not a citizen of the same state; in such circumstances, it would be too much for the court to decide upon its jurisdiction in this summary way. It would be injurious to both parties, for us to pretend to try a question of this hind, depending partly on fact, and partly on law, on such an application. We must forestall the question. If we mistake by deciding against the plaintiff, he may afterwards, indeed, get a verdict on the plea in abatement; but then he has lost his security, if the defendant’s person should not be within the reach of our process. On the other hand, to decide against the defendant, would be to subject him to a premature decision; and generally, this practice would be introductive of a double trial: first, on the motion for common bail, and then, on the plea. The point to be considered, then, on this head, is, whether the proof of co-citizenship is so clearly established, as to justify us in deciding in favor of it on motion.
Mr. Greenleaf s counsel have argued, and very forcibly, that his inhabitancy in Pennsylvania from the fall of 1790, and settled residence there, payment of taxes, &e. will constitute him a citizen of that state, and so a' co-citizen with the plaintiffs. Their position is, that as neither the constitution of the United States, nor that of Pennsylvania, nor the laws of either, have defined the terms on which a citizen of one state may become the citizen of another, the only criterion is settled inhabitancy. Whenever a citizen of one state goes into another, and makes that other his home, or where he establishes his domicil, he is there, for the time being, a citizen of that state to which he goes, within the meaning of the constitution of the United States (article 3, § 2), which gives jurisdiction to this court between citizens of different states. This is certainly a constitutional question, and undecided; and though at present, I do not see what other principle can be adopted, yet I am unwilling to act upon it, until brought before us in a more solemn way, by plea to the jurisdiction.
It might be said, the plaintiffs by prosecuting him as a citizen of Maryland, admit the principle that inhabitancy gives a title to_ citizenship; and it is indeed true that he was' resident in Maryland, only part of the months of August and December, 179S, and In January and August, 1799, about his bankruptcy. No admission, however, of the plaintiffs, on a question of law, can have any weight. If he is a citizen of Massachusetts only, we must say so; and should it be so determined, I do not see but that the plaintiffs' action may be sustained: their describing the defendant as a citizen of Maryland, may be rejected, it being sufficient to maintain the action, tiiat he is a citizen of a state other than that where the plaintiffs are citizens.
So much on the general question, as argued by the defendant’s counsel. But beside this, the plaintiffs meet the defendant on his own principles, and contend that he was actually a citizen of Maryland, in August, 1799, as appears by his discharge under the bankrupt law there, which could not be without proving himself to the chancellor a citizen of that state: that he must be taken, upon his own showing, to have become a citizen there in 1799, is very clear: whether he is yet so, or whether he belongs to Massachusetts, or by his former and subsequent residence in Pennsylvania, was a citizen of that state at his arrest, we cannot now determine. It is á question, to say no more of it, attended with some doubts both of law and fact, and therefore not fit to be decided on this motion.
The defendant's case has been put on the 11th sec. of the act of congress of the 24th September, 1789, and it is argued, that at the original drawing of the bill, and before the assignment, no action could have been maintained in the federal court, by Greenleaf against the drawer or acceptor, he and they being citizens of Pennsylvania; and therefore it is inferred that the endorsees cannot maintain an action against the endorser, though of a different state at the time of the commencement of their suit. But it is evident that this involves the same general question, whether Greenleaf was a citizen of Pennsylvania at all. If he was not. then the argument from the act of congress wants the fact to bear it out. Again, it is evident, that at the drawing of the bill in May, 179G, the defendant was not a citizen of Pennsylvania; his residence in Philadelphia did not [819]*819commence until the fall of that year. But again, at what- time is the relative citizenship of the parties to the bill to decide the jurisdiction? Certainly when the bill becomes payable; when the drawer, or accept- or, or endorser may be sued. Now the defendant could not sue the acceptor or drawer in this case, until May, 1799. And where, upon his own showing, was he a citizen at that time? Most probably in Maryland. On this ground, then, the question is not so clear as to justify a decision against our cognizance of the cause, upon motion.
In addition to these reasons I would observe, that an exception to the jurisdiction, in its nature, is not entitled to particular fa-vour; and unless very clear indeed, there seems to be a propriety in putting the party to his plea, if he would oust the court of its cognizance of the cause.
But another general ground is taken. It is urged that the discharge under the bankrupt law of Maryland, in August, 1799; or that under the insolvent law of Pennsylvania, in March, 179S, should either of them exempt his person from arrest for antecedent debts.
1.As to the Maryland bankruptcy, we are called upon, in this way, to say that the debt of a citizen of Pennsylvania, contracted at Philadelphia with the defendant, is extinguished by a special act of the Maryland legislature, discharging the defendant on a sudden and summary process from his debts, without personal notice to the creditor. I am aware of the state decisions in Pennsylvania on this point, and of their high authority, and of the strong reasons in their favour. I have for myself, however, formed no decisive opinion. None has been given, that I know of, in any of the federal •courts which can serve as a precedent. The plaintiffs insist to have the question determined on plea, and that it may not be hurried to a premature decision. I do not pretend at this time to deliver any opinion: I really have none, and it would be injustice ■done to both parties, were we thus to anticipate a very important and serious subject of consideration, on the right solution of which, much property and many people are deeply concerned. The defendant must therefore plead this matter.
2nd. As to the certificate under the Pennsylvania insolvent law, in March, 1798, I ■should have no hesitation to discharge the defendant upon common bail on this ground, had the debt in question been due at the time of the assignment of his effects, and liberation from imprisonment. The certificate is very special, and discharges the defendant from imprisonment “for his debts then due;’’ whereas the debt in question did not arise nor become due, until fifteen months after. The endorser was not liable, but in the events of due diligence by the plaintiffs, and non-payment by the acceptor •of the bill. In answer to this, it has been insisted, that under the act of February 14th, 1729-30, on which the discharge is grounded, contingent debts are included, and that they might be proved under the assignment This brings up a new and important question un.der that law: the bar allow it has received no decision: upon looking carefully through the act, I see enough in it to render it questionable, whether this is a debt affected by that certificate.
Upon the whole, I can see no clear and satisfactory ground on which to liberate the bail. There is the stronger reason for refusing the motion (was I any way doubtful) as his honor the chief judge, from circumstances, cannot act with us in this case; and Judge BASSET is absent, having had but a slight conversation with me on the subject after hearing the argument, but authorizing me to say, that under all the circumstances, he was not inclined to go so far in an opinion on any of the points, as to discharge the defendant from the arrest.
As this was represented to be a question of considerable importance to the defendant, I have considered it as attentively as the hurry of the court and other business would permit, and for the satisfaction of the parties, have thought it proper to assign my reasons for directing that the defendant take nothing by his motion.
TILGHMAN. Chief Judge,
being related to the defendant, declined sitting upon the argument.
[Tiie case was afterwards tried by the circuit court upon a plea in abatement by the defendant. Greenleaf. The plea set up the claim of the defendant to be considered a citizen of Pennsylvania. The court so instructed the jury, and a verdict was found accordingly. Case No. 7,-908.]