The complaint is sufficient. If the averments as to plaintiff's assigneeship are omitted as surplusage, the complaint, as a pleading, is good. Treating those averments as material, the complaint is equally good. (See Forms, 2 Chitty Pl. 33, 838, 839, 840; 1 Abbott's Forms, edition of 1871, p. 131, form 174; Hastings v. Fowler, 2 Carter, Ind. 217.) Whether the plaintiff sued individually or as assignee, the evidence given by him proved his case in either aspect. He proved the legal title in himself by proving property in his assignors, and an assignment from them, and by this evidence he also satisfied all the allegations of the complaint in respect to his representative character. (See Willes R. 104, note a; 1 Chitty Pl. 68, 69, note 3; Valentine v. Jackson, 9 Wend. 302; Evans v. Moore, 2 Cowp. 569; Bankrupt Act, Sec. 14.)
It may admit of question whether, when a right of property is created by the laws of the United States, Congress has the power to prohibit the holder of such title from claiming underit any relief which a State Court, in the exercise of its ordinary powers, would be able to give him, if he had acquired title from any other legal source. But it is unnecessary to pursue this inquiry, as Congress has not conferred upon the Federal Courts exclusive jurisdiction of such suits as the present. (Story on the Constitution, Secs. 1,752, 1,753, 1,754.)
The jurisdiction of a State Court of law over an action of trover, is a part of the primitive common law jurisdiction of such Court, and is not ousted by reason of a grant of a similar jurisdiction to the Federal Courts in cases where the plaintiff's title is derived through an Act of Congress. In cases where there is no exclusive grant of jurisdiction to the Federal Courts, if the State tribunals are so organized as to afford redress, it may be obtained therein. (Peale v. Felton, 1 Coms. 545; see also 1 Kent, * 390, * 397, and note; Ward v. Jenkins, 10 Metc. 584; Hastings v. Fowler, 2 Carter, Ind. 216; Pindell v. Vimont, 14 B. Monroe, 400.)
The very first case cited by the appellant, (Voorhies v. Frisbie, 8 National Bankruptcy Reg. p. 155,) admits that, in a case such as the present, the StateCourts have jurisdiction. Payson v. Dietz, (8 N. B. Reg. 195,) expressly concedes such jurisdiction in the State Courts. Sherman v. Bingham, (5 N. B. Reg. 38,) admits the jurisdiction of the State Courts. It appears, from the opinion in the case on appeal, that the larger part of the suits arising in Massachusetts on bankruptcy titles, are brought in the State Courts, (7 N. B. Reg. p. 497,) and the jurisdiction of the State Courts is conceded by the appellate tribunal. In Gilbert v. Priest, (8 N. B. Reg. 161, 63 Barb. 339,) the direct question was presented, whether the State Court had jurisdiction of a suit by the assignee in bankruptcy to set aside a conveyance executed in favor of the provisions of the bankrupt law. After an attentive examination of the question, the Court decided in favor of the jurisdiction. Peiper v. Harmer, (5 N. B. Reg. 252,) maintains that State Courts have jurisdiction of an action by the assignee on a cause which accrued to the bankrupt. (In re Central Bank, 6 N. B. R. 207.) Injunction applied for to restrain assignee from bringing suit in State Court, to recover from a creditor the amount of a preferred debt paid in violation of thebankrupt law, on the ground that such Court had no jurisdiction. Denied, on the ground that the Court " never supposed the effect of the Bankrupt Act to be to oust the jurisdiction of the State Courts."
It has been decided in several cases that suits by the assignee cannot be brought in any other Federal Court than that having jurisdiction in the District where the proceedings in bankruptcy were commenced. (Payson v. Dietz, 8 N. B. R. 193; Sherman v. Bingham, 5 N. B. R. 34; Jobbin v. Montague, 6 N. B. R. 509; Paine v. Caldwell, 6 N. B. R. 562; in re Richardson, 2 N. B. R. 74; Markson v. Heaney, 4 N. B. R. 165.) It is true that decisions may be found, asserting that, in such case, any United States District Court has jurisdiction; but the weight of authority is decidedly the other way. No doubt a State Court would have jurisdiction of an action of trover brought by a foreign assignee in bankruptcy, (Bird v. Caritat, 2 J. R. 344; Milne v. Moreton, 6 Binney, 374; Goodwin v. Jones, 3 Mass. 517,) although the foreign Bankruptcy Court might have exclusive jurisdiction of all proceedings in respect to the fiat in bankruptcy, the discovery and distributionof the bankrupt's assets, and the operation of the law on the bankrupt personally. So of an action brought by an assignee, deriving title through the insolvent law of a sister State, which provides that a certain Court in that State should have exclusive jurisdiction in all matters of insolvency. It would be a strange anomaly to concede such jurisdiction in the case of foreign assignees, and deny it in the case of an assignee appointed under the Act of Congress.
JUDGES: Crockett, J. Mr. Chief Justice Wallace did not express an opinion.
OPINION
CROCKETT, Judge
The foregoing opinion was delivered at the April term, 1873, and a rehearing having been granted, the following opinion was delivered at the July term, 1874.
By the Court, Crockett, J.:
The argument on the rehearing has not convinced us that our former opinion ought to be modified. But the point is now made for the first time on the appeal, that a State Court had no jurisdiction of the action, and that the plaintiff's remedy was by some appropriate proceeding in the United States District Court. The authorities are not uniform on the question whether an assignee in bankruptcy can maintain an action in a State Court to recover property disposed of by the bankrupt, in fraud of the Bankrupt Law. But we think the weight of authority, and supported by the better reasoning, maintains the jurisdiction of the State Courts, in that class of cases when the nature of the action is such that the proper relief can be administered in that forum. In this case, the action is trover in the usual form, and the judgment is for damages. The Court was competent to afford the necessary relief in an action of that nature, and properly entertained jurisdiction of the cause. We deem it unnecessary to review the authorities on this point, but the question was expressly decided and the authorities collated, in the recent case of Gilbert v. Priest, 63 Barb. 339 (Nat. Bankruptcy Reg. 161). The reasoning in that case, in support of the jurisdiction of the State Courts, appears to us not only to be conclusive, but to be in consonance with the weight of authority.
Judgment and order affirmed. Remittitur forthwith.