Page:Federal Reporter, 1st Series, Volume 5.djvu/267

 BTANLEY V. BUP'bS 01' ALBANY COUNTY. 255 �and is brougbt by the plaintiff as the assignee of Chauncey P. Williams, who, as appears by the complaint, was a resident of the city of Albany, in this state. The action involves the right of the defendant to retain certain sums of môney col- lected as taxes which the plaintiff alleges were illegally exi- acted. By the act of congress Of March 3, 1875, it is provided that ho circuit court shall bave cognizance of any suitfounded on contract in fayor of an assignee unless a suit might bave been prosecuted in Buch court to recover thereon if noassign- meht h'ad been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange. This act modifies section 11 of the act of September 24, 1789, known as the judiciary act, but not in a manner to affect the present question. The plaintiff's assignor could not bave prosecuted the suit because he was a< citizen of the same state with the defendant. �This disposition of the case cajinot be obviated by the fact that the defendant bas not interposed a plea to the jurisdic- tion, or objected to the jurisdiction upon the trial or argu- ment. The objection would be fatal whenever and ■wherever raised. In Jackson v. ashton, 8 Pet. 148, the supreme court reversed the decree of the court below, and dismissed the appeal when it did not appear in the Mil of complaint that the parties were citizens of different states, although the counsel for the appellee was anxious that the court should hear and determine the case, and waived the objection. �The court is not permitted to take cognizance of the cou- troversy which bas been brought before it. �The complaint is dismissed accordingly. ����