the assignor could not himself have sued in that

court.

[No. 1883.]

Submitted Dec. 1. 1890. Decided Dec. 22, 1890.

States for the Northern District of Florida, to review a judgment for plaintiff in an action for damages for entering upon plaintiff's lands and cutting down and removing and converting trees and logs. Affirmed.

Statement by Mr. Justice Field:

quoted from the Code of Civil Procedure, if applicable to a criminal case, should not be adjudged as working a departure from the old and established rule, unless its language imperatively demands such construction. Does it? The clause in the Civil Code is IN ERROR to the Circuit Court of the United negative, and declares that the exception of the incompetency of wife or husband as a witness against the other does not apply to a criminal action or proceeding for a crime committed by one against the other. Is polygamy such a crime against the wife? That it is no wrong upon her person is conceded; and the common-law exception to the silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this Statute is not how much she feels or suffers, but whether the crime is one against her. Polygamy and adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against such relation than against the wife; and, as the Statute speaks of crimes against her, it is simply an affirmation of the old, familiar and just common-law 507] rule. We conclude, therefore, that under this Statute the wife was an incompetent witness as against her husband.

1480]

Other questions in the record need not be considered, as they will probably not arise on a new trial.

The judgment of the Supreme Court of the Territory of Utah is reversed, and the case remanded, with instructions to order a new trial.

DANIEL G. AMBLER ET AL., Piffa.
in Err.,

ISAAC EPPINGER.

(See S. C. Reporter's ed. 480-483.)
Jurisdiction of circuit court.

The United States circuit court has jurisdiction
an action for damages for wrongfully entering on
lands and carrying away the timber thereon,
brought by an assignee of the claim, although

NOTE.-As to jurisdiction of United States circuit
court depending on parties and residence, see note to
Emory v. Greenough, 1: 640.

This case comes before the court on a writ of error, under the Act of February 25, 1889 (25 Stat. chap. 236, p. 693), to review the decision of the circuit court, upon the question of its jurisdiction. That Act provides that, in all cases where a final judg ment or decree shall be rendered in a circuit court of the United States, involving the question of its jurisdiction, the party against whom the judgment or decree is rendered shall be entitled to an appeal to the Supreme Court of the United States, or to a writ of error from it, to review such judgment or decree, without reference to its amount, except that, where that does not exceed the sum of five thousand dollars, the review shall be limited to the question of jurisdic tion.

The plaintiff is a citizen of New York, and the action is brought by him in his own right, and as assignee of John K. Russell, against the defendants, who are citizens of Florida, to recover as damages six thousand dollars, the alleged value of three thousand trees and pine logs cut down by the defend. ants upon the lands of the plaintiff and the said Russell in the years 1885, 1886 and 1887, and carried away and converted to their use. The declaration, after setting forth the entry by the defendants upon the lands of the plaintiff and Russell, the cutting down of the trees and their removal and conversion, alleges that afterwards, in November, 1887, Russell, for a valuable consideration, sold and assigned to the plaintiff all his right, title and interest in the pine trees and logs thus cut down, removed and converted, and in the claim and demand against the defend. ants, and that they refused to pay the plaintiff the value of the trees and timber, though payment was often demanded. The declaration contains four counts, but they all proceed for the same trespass and conversion, the facts being stated with some additional particulars in the different counts, not affect ing the question presented.

To the declaration the defendants demurred
on several grounds, all of which are embraced
in this: that it appeared by the declaration
that the grievances complained of were on
lands at the time jointly owned by the
plaintiff and John K. Russell, and that the
right of action was, therefore, not the subject
of assignment.

The demurrer was overruled; the defend.
As to jurisdiction of United States courts over com-ants thereupon pleaded, and issue was joined.

mon-law of enses, see note to United States v. Cool-
idge, 4: 124.

As to jurisdiction of state and United States courts,
as to territory and offense, see note to United States

v. Bevans, 4: 404

They then moved the court to dismiss the
action upon the alleged ground that it was
shown by the declaration that it had no
jurisdiction thereof. This motion was de-

(481)

(482]

Mr. James Lowndes, for plaintiffs in

error:

The circuit court has not jurisdiction of a suit or a claim like this, by an assignee, unless his assignor could have brought suit upon it. Act of March 3, 1887; Van Bokkelen v. Cook, 5 Sawy. 587; Rich v. Keyser, 54 Pa. 86; Bushnell v. Kennedy, 76 U. S. 9 Wall. 387 (19: 736); Bank of United States v. Planters Bank, 22 U. S. 9 Wheat. 904 (6: 244); Corbin v. Black Hawk County, 105 U. S. 659 (26: 1136); Shoecraft v. Bloxham, 124 U. S. 730 (31: 574); Simons v. Ypsilanti Paper Co. 33 Fed. Rep. 19.

nied, and the plaintiff obtained a verdict | prosecuted in the circuit court a suit
for eleven hundred dollars. A motion to the claim. That Act, after declaring
arrest the judgment on a similar ground was first section that certain suits shall
made and overruled. Judgment upon the brought in the circuit or district
verdict was thereupon entered, to review adds: "Nor shall any circuit or d
which the case is brought to this court. court have cognizance of any suit,
upon foreign bills of exchange, to
the contents of any promissory note or
chose in action, in favor of any assign
of any subsequent holder, if such instru
be payable to bearer and be not made b
corporation, unless such suit might have
prosecuted in such court to recover the
contents if no assignment or transfer
been made." 24 Stat. chap. 373, p. 55
This Act, as appears on its face, doe
embrace, within its exceptions to the j
diction of those courts, suits by an ass
upon claims like the demand in controv
The exceptions, aside from suits on for
bills of exchange, are limited to suit
promissory notes and other choses in ac
where the demand sought to be enforce
represented by an instrument in writ
payable to bearer, and not made by a co
ration, the words following the designa
of choses in action indicating the ma
in which they are to be shown. They
be such as arise upon contracts of the o
inal parties, and not founded, like the
in controversy, upon a trespass to prope

The burthen is upon the plaintiff in a suit in
a circuit court of showing the necessary juris-
dictional facts. They must appear affirmative
ly on the record. This is so as regards the citi-
zenship of an assignor.

Metcalf v. Watertown, 128 U. S. 586 (32: 543);
Brock v. Northwestern Fuel Co. 130 U. S. 341
(32: 905); Morris v. Gilmer, 129 U. S. 315 (32:
690).

Mr. H. Bisbee, for defendant in error:
In actions of trover and trespass one tenant
in common may maintain a suit.

Freeman, Co-tenancy (2d ed.) § 353; Zabris-
kie v. Smith, 13 N. Y. 337; Shamburg v. Moore-
head, 4 Brewst. 92; Boobier v. Boobier, 39 Me.
409; Howard v. Snelling, 28 Ga. 473; Duff v.
Bindley, 16 Fed. Rep. 178.

A tenant in common, who is a citizen of an-
other State, may sue in the circuit court for his
portion, although his co-tenants who are citizens
of the State where the lands are cannot main-
tain such a suit.

Browne v. Browne, 1 Wash. C. C. 429.
The words "other chose in action," in sec.
629, Rev. Stat., embrace the rights a contract
or instrument confer which are capable of
enforcement by suit.

Shoecroft v. Bloxham, 124 U. S. 730-735 (31:
574, 576); Corbin 7. Black Hawk County, 105
U. S. 659, 666, 667 (26: 1136, 1139); Deshler v.
Dodge, 57 U. S. 16 How. 622-631 (14: 1084,
1088).

A suit by an assignee of a claim for damages for a tort to property, or to recover personal property or its value, is not within the Statute.

Barney v. Globe Bank, 5 Blatchf. 107, 114, 115; Van Bokkelen v. Cook, 5 Sawy. 587-591; McNichol v. Phelps, 16 Fed. Rep. 8; Deshler v. Dodge, 57 U. S. 16 How. 622 (14:1084); Bushnell v. Kennedy, 76 U. S. 9 Wall. 387, 391 (19: 736, 738).

Mr. Justice Field delivered the opinion of the court:

The record is silent as to the citizenship of Russell, who assigned his interest to the plaintiff, and the defendants below, the plaintiffs in error here, contend that the circuit court was therefore excluded by the Act of March 3, 1887, from jurisdiction of the action, it not appearing that he could have 766

The construction given by this court Deshler v. Dodge, 57 U. S. 16 How. 622 1084], to the clause in the eleventh sect of the Judiciary Act, which denied to circuit or district court "cognizance of suit to recover the contents of any promiss note or other chose in action, in favor of assignee, unless a suit might have been pr ecuted in such court to recover the s contents if no assignment had been ma except in cases of foreign bills of exchang is in harmony with the construction we g to the Act of 1887. It was there held t the exception by that section of the jurisd tion of those courts of suits by an assign did not extend to a suit on a chose of acti to recover possession of a specific chattel damages for its wrongful caption or dete tion, although the assignee could not hims sue in that court. And in the subseque case of Bushnell v. Kennedy, 76 U. S. 9 Wa 387 [19: 736], it was said that the exceptio to the jurisdiction applied only to rights action founded on contracts which contain within themselves some promise or duty be performed, and not to mere naked righ of action founded on some wrongful act some neglect of duty to which the law a taches damages.

The judgment below being under fi thousand dollars, no other question than th of jurisdiction can be reviewed by this cour The validity of the transfer of Russell's in terest in the timber removed and converte to the defendants' use, and the effect of suc transfer upon the amount of the plaintiff recovery, are matters touching the merits the action, and are not open to consideratio here.

Judgment affirmed.

187 U. S

ST. PAUL, MINNEAPOLIS AND MANI- [to the land, by reason of plaintiff's prior
TOBA RAILWAY COMPANY, Appt..

Minnesota, dismissing a suit in equity brought
by the St. Paul, Minneapolis and Manitoba
Railway Company, a Minnesota corporation,
against Ransom Phelps, to quiet the title to land
in Richland County, North Dakota. Reversed.
The facts are stated in the opinion.
Mr. S. U. Pinney for appellant.
Messrs. James McNaught, A. H. Gar- to a point of junction with the last-men-
land and H. J. May for appellee.

This was a suit in equity brought by the St. Paul, Minneapolis and Manitoba Railway Company, a Minnesota corporation, against Ransom Phelps, to quiet the title to about 80 acres of land in Richland County, North Dakota, particularly described as the east half of the southeast quarter of section 13, township 132, range 48, alleged to be-pointed by the governor of said Territory or long to the plaintiff, and which was claimed by the defendant.

[530]

which pre-emption rights have attached as | limits of the present State of Minnesota, aforesaid, together with the sections and within what is now the State of North Da [581] parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by the Territory or future State of Minnesota for the use and purpose aforesaid: Provided, That the land to be so located shall in no case be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches."

Section 3 provides: "That the said lands hereby granted to the said Territory or future State shall be subject to the future disposal of the Legislature thereof for the purposes herein expressed and no other."

Section 4 defines the manner in which the lands granted shall be disposed of by the Territory or future State.

kota, although at the date of the grant it lay
within the limits of Minnesota Territory.
This contention is based upon the following
theory: At the time the grant of 1857 was
made Minnesota was a Territory, whose
western boundary was the Missouri River.
Five days prior thereto, to wit, February 26,
1857, Congress passed an Enabling Act for
the proposed State (11 Stat. 166), which des
ignated the western boundary thereof as
follows: "Beginning at the point in the
centre of the main channel of the Red River
of the North, where the boundary line be-
tween the United States and the British
possessions crosses the same; thence up the
main channel of said river to that of the
Bois des Sioux River; thence [up] the main
channel of said river to Lake Travers; thence
up the centre of said lake to the southern
extremity thereof; thence in a direct line to
the head of Big Stone Lake; thence through
its centre to its outlet; thence by a due south
To carry out the provisions of the Grant-line to the north line of the State of Iowa."
ing Act, the Territorial Legislature passed Under this Enabling Act the State of Minne-
an Act creating the Minnesota and Pacific sota was organized and admitted into the
Railroad Company, and bestowed upon it the Union May 11, 1858. 11 Stat. 285. It is
lands which had been granted to the Terri- said that it has been the settled policy of the
tory; and by the same Act the terminus of government to confine land grants made in
the main line of the road was fixed at Breck- aid of railroads wholly within a State or
inridge, at the mouth of the Sioux Wood Territory to lands lying within the same
River, as the point "between the foot of Big State or Territory, and that, therefore, inas-
Stone Lake and the mouth of the Sioux much as the land in this case is outside of
Wood River," referred to in the Act of Con- the State of Minnesota, although within the
gress.
limits of the Territory as it existed at the
date of the grant, it cannot be included in
the grant to this branch of the road lying
wholly within the State.

The Act of 1865 enlarged the original grant from six to ten sections per mile on each side of the road, and the indemnity limits from fifteen to twenty miles.

This was the conclusion reached by the circuit court, in view of the ruling of the Land Department and the refusal of the Secretary of the Interior, in the adjustment of the grant to this branch of the road, to certify to the State any lands lying beyond its western boundary line, which ruling the court expressed itself unwilling to reverse or to jeopardize the rights and large interests (including a prosperous village) that were said to have grown up on the faith of it. Against this conclusion there are strong, and, in our view, unanswerable, objections.

On the 5th of December, 1857, the company filed with the commissioner of the General Land Office a map showing the definite location of the main line of the road as far west as Breckinridge; but as the public surveys at that time extended only to the west line of range 38-about half the length of the road-it was not accepted as the map of definite location by the land office any further west than the surveys extended. After the surveys had been completed as far west as Breckinridge, the company filed another map of definite location for the remaining part of the road, which was, in reality, a map of the original location made to conform to the public surveys. The exact date of the filing of this latter map and its acceptance by the It was admitted that, according to the Land Department does not appear in the rec- plain letter of the Statute, the grant would ord, but it was prior to May 25, 1869. include lands west of the Bois des Sioux The railroad was completed to Breckin-River, in Dakota, and that the land in con[532] ridge within the time limited by the Act of troversy is within that grant. It is also March 3, 1865, supra. It is conceded that conceded that Congress has the power to grant the tract in controversy is part of an odd to a State lands in another State or Territory, section lying within six miles of the line of the road, and that the appellant has succeeded to all the rights and privileges respecting the grant that were originally conferred upon the Territory of Minnesota and by its Legislature conferred upon the Minnesota and Pacific Railroad Company.

The main contention of the appellee is that this land, although within six miles of the line of the road as definitely located and as actually constructed, and otherwise conforming to the description of the lands granted by the Act of 1857, was not granted br that Act, because it lies outside of the

to aid in the construction of a railroad
wholly within its own limits. But it is
argued that the positive and express provis-
ion of the law must give way, and be con-
trolled by the presumption founded upon an
alleged policy of the government, that Con-
gress, having in view the probable organiza-
tion of Minnesota Territory into a State,
intended to restrict the grant in question to
lands within the limits of such future State.
We see much in the Act itself and in the
circumstances which attended its enactment
that repels such presumption. In the first
place, what is called the uniform and settled

[533]

5841

policy of the government to confine land | put upon the Act under consideration. In
grants, in the manner described, as far as it
exists, was established by the express pro-
visions of statutory enactments, and not by
any construction of the Interior and Law
Departments of the government, wherein they
have assumed to find an opposition between
the actual text of the law and the public
policy of the government, making the former
yield to the latter as expressive of the intent
of Congress.

66

almost the same language in which those Statutes grant lands to States, this Act provides "that there be and is hereby granted to the Territory of Minnesota, for the purpose of aiding in the construction of railroads," and then proceeds, in words no less express and precise than the words of the Statutes above cited, to define the lines of the different roads and branches, to designate the points of their termini, and to declare the In most if not all of the grants of land terms, extent, location and limitations of the made to the various States in aid of rail- grants, all within the limits of the Terriroads within their respective limits, some tory. Not a word in any section or provis words of limitation were used to denote that ion of the Act indicates an intention of the grant was restricted to lands within each Congress to confine the grant within the particular State, when such restriction was limits of the contemplated State. The words intended. Thus, in the Act of 1857 now of the grant are: Every alternate section under consideration, the terminus of the of land designated by odd numbers for six second line of road provided for was at "the [ten] sections in width on each side of each southern boundary of the Territory," and the of said roads and branches." Each of what terminus of the branch of that road was at roads and branches? Such as are by the exthe "north line of the State of Iowa." The press terms of the Act confined within the Act of June 29, 1854 (10 Stat. 302), which proposed boundaries of the future State? The was repealed August 4, 1854 (Id. 575), question is answered by the Act itself. It granted lands to the Territory of Minnesota provides for four separate roads and two to aid in the construction of certain railroads, branches, particularly designating the points one of which was to run from the southern from which each is to start, and the limits line of the Territory via certain mentioned within which the terminus of each may be points to the eastern line of the Territory, fixed. It expressly designates the terminus The Act of June 3, 1856 (11 Stat. 20), granted of the third of these roads (the Winona and lands to Wisconsin in aid of a railroad from St. Peters) at "a point on the Big Sioux Fond du Lac northerly to the state line; and River, south of the forty-fifth parallel of an Act of the same date (Id. 21) made a north latitude," some 30 or 40 miles beyond grant of lands to Michigan in aid of a road the boundary of the State; and that of the to run from Little Bay de Noquet via certain one under consideration, which might have points to "the Wisconsin state line." The been, if so directed by the Territorial LegisAct of March 3, 1863 (12 Stat. 772), granted lature, also fixed beyond the western bound. lands to Kansas in aid of a railroad to run ary, and yet be within the terms of the Act. from Leavenworth via certain other points to These provisions are all embodied in the the "southern line of the State;" and also same section, and all of them alike constiin aid of a railroad to run from Atchison via tuted legislation in reference to the proposed Topeka to the "western line of the State." State, and if one was limited by the preThe Act of May 5, 1864 (13 Stat. 64), granted sumption of the rule of construction conto the State of Minnesota to aid in the con- tended for, so were all the others. For they struction of a railroad from St. Paul to Lake all prescribed, with respect to the extent of Superior "every alternate section of public the grant, the same terms, putting each land, etc., within Minnesota." The Act of grant on the same footing in proportion to July 4, 1866 (14 Stat. 87), granted lands to the length of the road, i. e., "every alternate Minnesota to aid in the construction of a road section of land designated by odd numbers from Houston to the "western boundary of for six [ten] sections in width on each side the State," and for another road from Hast- of each of said roads and branches. Again, ings to a point on the "western boundary of it is to be observed that, after the State of the State." The Act of July 26, 1866 (14 Minnesota was organized and admitted into Stat. 289), granted lands to the State of the Union, with its boundaries fixed by the Kansas to aid in the construction of a south- Enabling Act, Congress passed an Act, May ern branch of the Union Pacific railroad, 12, 1864, as to one of these roads, and March which was designated to run from Fort Riley 3, 1865, as to all the others, renewing the via certain named points to the "southern grant of 1857, and enlarging it from six line of the State of Kansas." See also the to ten miles on each side of said roads and Florida-Alabama grant hereafter referred to; branches, and nothing is said in either of Act of May 15, 1856 (11 Stat. 9), granting them to indicate any restriction to the state lands to the State of Iowa to aid in the con- limits of the lands originally granted, or [535] struction of certain railroads in that State; those added to the grant. We think that the language of those Acts is too plain and unequivocal to need or even to admit the aid of an extrinsic rule of construction to get at the intent and meaning of Congress. The assumption of the appellee, that the uniform policy of the government, as it is called, arose from the construction put by the administrative department upon railroad grants, and that it arose with respect to the

Act of May 12, 1864 (13 Stat. 72), granting
lands to the State of Iowa to aid in the con-
struction of a railroad in that State; and Act
of July 2, 1862 (12 Stat. 503), donating pub-
lic lands to the several States and Territories
which may provide colleges for the benefit
of agriculture and the mechanic arts.

These Statutes are all in harmony with
the construction which we think should be

[536]