Pierce Butler

“ In 1833, Lord Lyndhurst, then Chief Baron, in Smyth v. Smith, 2 Cr. & M. 231, in the Court of Exchequer, held that the second assignee in order to obtain priority must show that he exercised proper caution in taking the assignment, and that he had applied to the trustees to know if any previous assignment had been made, and that, unless he so applied to each of the trustees, he would not have exercised due caution or done all that he ought to have done. ”

“ These cases hold that where the object of the suit is to recover possession of personal property the one in possession is a necessary and indispensable, and not a formal, party. Here no cause of action exists against the International Trust Company, because it has not been determined which of the other parties is entitled to payment. ”

“ It is impossible to eliminate all risk from such a transaction. If the second assignee elects to rely on the representations of the vendor as to his title, and is deceived, he cannot shift his loss to the first assignee, unless some act or omission of the latter was proximate to the deception. ”

“ St. § 991] ) ; and when in any suit brought in a state court, there is a controversy, which is wholly between citizens of different states, and which can be fully determined as between them, a defendant interested in such controversy may remove the suit to the proper District Court of the United States. (Judicial Code, § 28 [Comp. St. § 1010] ) . District Courts have jurisdiction if all the parties on the one side are of citizenship diverse to those on the other side. [1] Jurisdiction cannot be defeated by joining formal or unnecessary parties. ”

“ E. g.: (1) If, acting in good faith, he obtains payment of the claim assigned; Judson v. Corcoran, 17 How. 612; Bridge v. Conn. Company, 152 Mass. 343; Bentley v. Root, 5 Paige, 632, 640; or (2) if he reduces his claim to a judgment in his own name; Judson v. Corcoran, 17 How. 612; Mercantile Company v. Corcoran, 1 Gray, 75; or (3) if he effects a novation with the obligor, whereby the obligation in favor of the assignor is superseded by a new one running to himself, N. Y. Company v. ”