Page:Federal Reporter, 1st Series, Volume 8.djvu/737

 •THIKD NAT. BANK OP ST. L0DI8 V, HABBISOM. 72S �banking association established in the district for whicb the court is held, under any law providing for national banking associations." �Counsel for defendant insists that under this statuts it is not enongh that the suit is brought by a national bank. It must, in his view, also appear that it involves the construction of some provision of the constitution, or of a treaty, or of some law of the United States. Evet since the decision of the supreme court in the case of Osborne v. V. S. Bank, 9 Wheat. 738, it bas been taken as settled that it is competent for congress to confer upon a national bank created by it the right to sue in the federal courts by reason of their character as such. An examination of the opinion of Chief Justice Marshall in that case will show that he placed the right to sue upon the simple ground that the bank was chartered by congress. He insisted that the right of the bank to sue at all in any court depended upon a law of the United States; thiat this question of the right to sue, however clear it might be, and however well settled, was still a question that might be renewed in every case, and therefore one which forms an original ingredient in every cause. He said : " Whether it be in f act relied on in the defence, it is still a part of the cause, and may be relied on. The right of this plaintiff to sue cannot be dependent on the defence which the defendant may choose to set up. His right to sue is anterior to that defence, and must depend on the state of things where the action is brought. The questions which the case involves, then, must determine its character, whether those questions be made in the cause or not." This ruling, as I have had occasion heretofore to decide, applies with fuH force to the construction of the present national banking law. See Fass v. First Nat. Bank of Den- ver,l McCrary, 474.* In numerous cases in this court it bas been taken for granted that the ruling of the supreme court in Osborne v. U. S. Bank is conclusive upon this question. See Bank v. County of Douglas, 3 Dill. 298, and note. �In the case of Bethelv. Pahquioque Bank, 14 Wall. 395, Mr. Justice Clifford, in delivering the opinion of the supreme court, said : �" Jurisdiction in such suits (by or against national banks) is unquestion- ably vested in any circuit, district, or territoirial court of the United States held within the district in which stich association may be established." �The decisions of circuit judges in other circuits have been to the same effect, and are numerous, but it is not necessary here to cite cases. ■ ��� �