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SERE AND LARALDE v. PITOT AND OTHERS.

February 1, 1810

SERE AND LARALDE
v.
PITOT AND OTHERS.



ERROR to the district court of the United States for the district of Orleans, in a suit in equity, in which Ser e & Laralde were complainants, against Pitot and others, defendants.

The complainants stated, that they were aliens, and syndics of the creditors of the joint concern of Dumas & Janeau, Pierre Lavergne and Joseph Faurie; that Faurie died insolvent; that Dumas & Janeau were also insolvent, and made a surrender of all their effects to their creditors, and that Lavergne acknowledged himself to be unable to pay the debts of the joint concern; that the joint concern, as well as the individual members, being insolvent, 'application was made by their creditors to the superior court of the territory of Orleans, and such proceedings were thereupon had that, according to the laws of the said territory, the complainants were, at a meeting of the creditors of the said partnership, duly nominated syndics for the said creditors, and, by the laws of the said territory, all the estate, rights and credits of the said partnership were vested in the complainants.' They also stated that the defendants were citizens of the United States.

The defendants pleaded to the jurisdiction, and the court below allowed the plea.

E. Livingston, for the plaintiffs in error, contended,

1. That the eleventh section of the judiciary act of 1789 did not apply to those assignees to whom the choses in action of an insolvent were transferred by operation of law, as in the case of executors and administrators. 4 Cranch, 306. Chappedelaine v. Decheneau; and,

2. That under the third article of the constitution of the United States, and the judiciary act of 1789, it was sufficient to aver one of the parties to be a citizen of the United States, generally, if the other party were an alien. It is to be presumed that he was a citizen of some one of the states.

Harper, contra.

The judiciary act is express in prohibiting a suit in the federal court by an assignee, if the suit could not have been maintained between the original parties. The expression is general, 'or other chose in action,' whith comprehends the present case.

By the constitution, if one party be an alien the other must be a citizen of one of the states; it is not sufficient that he be a citizen of one of the territories of the United States.

The case of Chappedelaine was that of an administrator; this is of a mere assignee.

Livingston, in reply.

The act of congress speaks of recovering the contents of a chose in action, evidently referring only to cases of individual assignments of particular choses in action, not to a general assignment of all his effects by an insolvent.

March 17.

MARSHALL, Ch. J. delivered the opinion of the court as follows, viz.

This suit was brought in the court of the United States for the Orleans territory, by the plaintiffs, who are aliens, and syndics or assignees of a trading company composed of citizens of that territory, who have become insolvent. The defendants are citizens of the territory, and have pleaded to the jurisdiction of the court. Their plea was ...


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