Argument for Appellants.

(6) But it may be said the ulterior object to obtain payment of the bond-determines it to be "founded on contract." It was not so considered in Deshler's case. It is true if the contract of the bond and mortgage had not been made, this suit could not exist. But it is equally true, if Small had not got these papers into his possession by an illegal and tortious act, this suit could not exist. It is most natural and appropriate for the plaintiffs to set aside the tort before they attempt to proceed on the contract.

(c) Also that the structure of the bill shows contract to be its foundation. Prima facie there is no contract remaining. Small says there is not, that it has been discharged by a given act, and is as if it had never been, and the papers are his.

Who is to determine this? It stands until it is annulled by the court. The bill asks that it be annulled the lien of the mortgage declared existing — and the papers delivered into the custody of the owners. Why not? If the act was illegal, the rest follows ex necessitate.

(d) Also that the bill prays foreclosure, and this shows the true inwardness of the case. The practice of equity is thus stated by this court: "Having obtained rightful jurisdiction of the parties and the subject matter of the action for one purpose, the court will make its jurisdiction effectual for complete relief." Ober v. Gallagher, 93 U. S. 199, 206; Tayloe v. Marine Ins. Co., 9 How. 390; Ward v. Todd, 103 U. S. 327; Quattlebaum v. Black, 24 So. Car. 55.

The rulings of Deshler v. Dodge and Bushnell v. Kennedy are not denied, nor are those of Ober v. Gallagher; but it is said the rule of the last case does not apply because, “although the court has obtained rightful jurisdiction of the parties and subject matter of the action for one purpose, it cannot proceed to adjudicate another subject matter embraced in the suit, of which it is expressly forbidden to take cognizance." But Chief Justice Marshall says in Osborn v. Bank of the United States, 9 Wheat. 738, 822, if jurisdiction is once obtained, "then all other questions must be decided as incidental to this, which gives that jurisdiction - These other questions cannot arrest the proceedings."'

Argument for Appellants.

The analogy between this proceeding and bills for discovery, where general relief is given, although the right of discovery alone gives jurisdiction, is instructive. And further, the subject matters of the suit are, although distinct in one aspect, intimately connected. The tort is the root of the suit, and gives it its fundamental and jurisdictional character; and it is necessary that it shall be first declared before a right of action accrues on the mortgage or bond.

In fact and in law, the foreclosure or further proceedings can and will be simply "in addition to, and continuance of " - ancillary to the original suit- and such proceedings are maintainable "without reference to the citizenship or residence of the parties." Krippendorf v. Hyde, 110 U. S. 276; Jones v. Andrews, 10 Wall. 327; Pacific Railroad v. Missouri Railroad, 111 U. S. 505; Dewey v. Gas Coal Co., 123 U. S. 329.

II. If the parties on the record-plaintiffs and defendants respectively are citizens of different States and thus far the jurisdiction is unobjectionable, is it ousted by the fact that one defendant, who has a like but several interest with the plaintiffs is a citizen of the same State, with the defendant against whom the plaintiffs make their contention ?

The plaintiffs have a constitutional right to sue in the Federal courts. In all the cases where this right is denied, either a citizen of the same State with defendant has joined in the suit as plaintiff; or has made a formal — not a substantial release to the plaintiffs-by such means to juggle into the jurisdiction; or otherwise sought to trick themselves into the jurisdiction. Removal Cases, 100 U. S. 457; Barney v. Baltimore, 6 Wall. 283; Williams v. Nottawa, 104 U. S. 209; Peninsular Iron Co. v. Stone, 121 U. S. 631; Sewing Machine Companies' Case, 18 Wall. 553.

If the principle contended for is admitted, the rights of citizens dependent on the Constitution are eliminated: and in its place the volition of one or more persons is substituted as the basis of jurisdictional right.

Mr. James Simons and Mr. Samuel Lord for appellees.

Opinion of the Court.

MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

It appears by the proofs in the record that John F. Blacklock, the assignor of the bond, was, at the time of the assignment, a citizen of South Carolina, and continued to be such until this suit was commenced, and that the defendant Small was, when this suit was commenced, a citizen of South Carolina. Under these circumstances, the provision of the 1st section of the act of Congress of March 3, 1875, c. 137, (18 Stat. 470,) applies to this case. That provision is as follows: "Nor shall any Circuit or District Court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant, and bills of exchange."

The present suit is a suit against Small, founded on contract, namely, his bond and mortgage in favor of the plaintiffs, who claim only under the assignment made by their father, John F. Blacklock, to the defendant Robertson. John F. Blacklock could not have prosecuted this suit in the Circuit Court of the United States for the District of South Carolina, to recover on the bond and mortgage against Small, if he had made no assignment of the bond to Robertson, for the reason that he and Small were not citizens of different States when the suit was commenced, but were both of them at that time citizens of South Carolina.

In answer to this objection, it is contended by the appellants, that this suit is not to be regarded as a suit founded on the contract of Small, to recover thereon, but is to be regarded as a suit for the delivery of the bond and mortgage by Small to the plaintiffs, founded on their wrongful detention, and that the rest of the relief prayed by the bill is ancillary and incidental; and the cases of Deshler v. Dodge, 16 How. 622, and Bushnell v. Kennedy, 9 Wall. 387, are cited as authorities; but they do not apply.

The case of Deshler v. Dodge was an action of replevin, brought by a citizen of New York against a citizen of Ohio,

Opinion of the Court.

in the Circuit Court of the United States for the District of Ohio, to recover possession of a package of bank bills. The title of the plaintiff to the contents of the package was derived by the assignment from corporations of Ohio. This court held that the action could be maintained, although the assignors could not have brought the suit, and that the suit was not one to recover the contents of a chose in action within the meaning of § 11 of the Judiciary Act of September 24, 1789.

In Bushnell v. Kennedy it was said, though not determined, because not necessary to that case, that the provision of the 11th section of the Judiciary Act of 1789 did not apply to a naked right of action founded on a wrongful act or a neglect of duty, to which the law attached damages.

In the present case, the bill is clearly one for a decree against Small for the amount of the bond, and for a foreclosure of the mortgage and a sale of the mortgaged premises.

There is another difficulty in the case, on the question of jurisdiction. The bond was a unit; the mortgage was a unit: and the assignment of the bond by Blacklock to Robertson in trust for the children of Blacklock was a unit. The bond cannot be enforced against Small, nor can the mortgaged premises be sold, in favor of the two plaintiffs alone. The relief asked in the suit must necessarily be for the benefit of the defendant Helen Robertson Blacklock, as well as for the benefit of the plaintiffs, especially as, by her answer, she ranges herself on the side of the plaintiffs as against Small, joins in the prayer of the bill, and asks that the payment of the bond and the satisfaction of the mortgage be declared void, and that the bond and mortgage be declared valid in the hands of Robertson, as trustee, for the benefit of herself and the plaintiffs, and that Small be decreed to pay to herself and the plaintiffs the amount of money secured by the bond and mortgage, with interest. The suit is, therefore, shown to be one substantially by and for the benefit of Helen Robertson Blacklock, and the proofs show that, at the time of the commencement of the suit, she was, and has since then always continued to be, a citizen of South Carolina, of which State Small was and

Syllabus.

is a citizen. Ayres v. Wiswall, 112 U. S. 187; Thayer v. Life Association, 112 U. S. 717; New Jersey Central Railroad Co. v. Mills, 113 U. S. 249; Louisville & Nashville Railroad v. Ide, 114 U. S. 52.

The Circuit Court ought, therefore, to have dismissed the bill for want of jurisdiction, and not upon the merits. For this error, its decree is reversed, with costs in this court against the appellants, because the reversal takes place on account of their fault, in invoking the jurisdiction of the Circuit Court when they had no right to resort to it, Mansfield, Coldwater & Lake Michigan Railroad v. Swan, 111 U. S. 379, 388, 389, and The case is remanded to the Circuit Court, with a direction to dismiss the bill for want of jurisdiction, without costs of that court.

SMITH v. BOURBON COUNTY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.

No. 193. Submitted February 17, 1888. Decided April 23, 1888.

The complainant's bill alleged that he was a judgment creditor of a railroad company; that the Board of Commissioners of Bourbon County had subscribed to the stock of the railroad company, and had voted upon it at meetings of the corporation, and had thereby become bound to the company to issue to it bonds of the county equal to the par value of the stock; that the bonds had not been issued; and that the obligation was still outstanding. The remedies sought for were, (1) that the company should be ordered to assign to the complainant its claim against the county; and (2) a decree against the county ordering it to issue the bonds, and to deliver them to the complainant, to be credited upon his judgment at their face value. Held,

(1) That the right to proceed against the county and its officers to compel the issue of the bonds was a purely legal right, to be prosecuted at law, in mandamus, whether the proceeding was in the name of the railroad company or of its privy by assignment;

(2) That the equitable nature of the complainant's rights against the company furnished no ground for the support of such a bill in equity against the county; and

(3) That the bill should be dismissed as to the county without prejudice to the complainant's right to proceed at law to obtain the issue of the bonds, after acquiring the rights of the railroad.