Jurisdiction—Parties.

ERROR from the Circuit Court of North Carolina. This was an action upon a promissory note, made in Philadelphia, by Stanley, the intestate, in favor of Biddle & Co., and indorsed by Biddle & Co. to the Bank of North America.

The declaration (which contained only a count upon the note itself) stated, that the president and directors of the bank were citizens of the state of Pennsylvania; and that Turner, the administrator, and Stanley, the intstate, were citizens of the state of North Carolina; but of Biddle & Co., the payees and indorsers of the note, there was no other designation upon the record, than "that they used trade and merchandise in partnership together, at Philadelphia or North Carolina."

The error assigned and insisted upon, to wit, an insufficient description of Biddle & Co., was founded on that part of the 11th section of the judicial act (1 U.S.Stat. 79) which declares, that no district or circuit court "shall have cognisance 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."

Ingersoll, for the plaintiff in error, argued, that unless it was averred upon the record, that the original parties to the note, as well as the parties to the suit, were of different states, or one a citizen, and the other an alien, it could not judicially appear, that the circuit court had jurisdiction of the cause. Though the federal courts are not to be regarded as inferior courts, they are courts of a limited jurisdiction. The jurisdiction of the state courts is general; but the jurisdiction of the federal courts is special, and in the nature of an exception from the general jurisdiction of the state courts. That the parties are citizens of different states, is one ground for the exception; and so far as respects the immediate parties to the suit, the ground for the exception sufficiently appears upon the record. But if an action is brought by the indorsee of a promissory note, he cannot have the benefit of the exception, unless he shows that his indorser, as well as himself, was entitled to resort to a federal tribunal. Congress knew, that the English courts have amplified their jurisdiction, through the medium of legal fictions; and it was readily foreseen, that by the means of a colorable assignment to an alien, or to the citizen of another state, every controversy arising upon negotiable paper might be drawn into the federal courts. Hence, the original character of the debt is declared to be the exclusive test of jurisdiction, in an action to recover it. Unless the original character of the note furnished a subject of federal jurisdiction, it is emphatically declared, that "no district or circuit court shall have cognisance of the suit;" and a court of special jurisdiction cannot take cognisance of the suit, unless the case judicially appears by the record to be within its jurisdiction. Lord Coningsby's Case, 9 Mod. 95. So, wherever a party takes advantage of a clause in a statute, to which a proviso is attached, he must not only bring his case within the general clause, but show that it is not affected by the proviso. 5 Bac. Abr. 666; Plowd. 410; Ld. Raym.

Nor is the present too late a period to take advantage of the defect. Silence, inadvertence of consent cannot give jurisdiction, where the law denies it. In Bingham v. Cabot, 3 Dall. 382, the ground of jurisdiction was more strongly laid; and yet a similar defect was successfully assigned for error.

Rawle, for the defendant in error.—It is not intended to controvert the general proposition, that where a suit is brought before an inferior court the circumstances that gave it jurisdiction must be set forth on the record; and if they are omitted, it may be taken advantage of upon a writ or error. But the circuit court is not, in technical language or intendment, an inferior court; and this consideration alone destroys the application of most of the English authorities. It is, then, to be remarked, that the judicial power is the grant of the constitution; and congress can no more limit, than enlarge the constitutional grant. In the second section of the third article, the constitution contemplates the parties to the controversy is "between citizens of different states," the judicial power of the United States expressly extends to it.(a) By the opposite construction however, congress has imposed a limitation upon the judicial power, not warranted by the constitution, when, without regard to the immediate parties to the controversy, the law excepts from the cognisance of the federal courts, suits upon promissory notes, which, by assignment, have placed the immediate parties in the relation of citizens of different states. If the circuit court is not an inferior, neither is it, in the sense asserted, a limited jurisdiction, but it is a court of general jurisdiction, having some cases expressly excepted from its cognisance. It may be compared to the king's bench in England, from whose general jurisdiction is excepted the cognisance of cases, belonging to the counties Palatine. Carth. 11, 12, 354; 1 Saund. 73; 2 Mod. 71-3. As to such courts, it is sufficient, if it appears to the appellate authority, that, from the subject-matter, the court below might have jurisdiction; and at all events, it would be too late, on a writ of error, to take the exception—an objection not suggested in Bingham v. Cabot. Then, here, the parties are stated to be citizens of different states; the place was not exempt from federal jurisdiction; and the nature of the controversy did not, of itself, deprive the circuit court of its general cognisance of suits between citizens of different states.

The Chief Justice delivered the opinion of the Court, in the following terms: