Did the court below have jurisdiction of this case? If jurisdiction did not affirmatively appear upon the record, it was error to have rendered a decree, whether the question of jurisdiction was raised or not in the court below. In the exercise of its power, this court, of its own motion, must deny the jurisdiction of the courts of the United States, in all cases coming before it, upon writ of error or appeal, where such jurisdiction does not affirmatively appear in the record on which it is called to act. Railway Co. v. Swan, 111 U.S. 379, 382, 4 Sup. Ct. Rep. 510; Bridge Co. v. Otoe Co., 120 U.S. 225, 226, 7 Sup. Ct. Rep. 552; Cameron v. Hodges, 127 U.S. 322, 325, 8 Sup. Ct. Rep. 1154.
The judiciary act of 1789 provided that the district and circuit courts of the United States should not 'have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' 1 St. 78, c. 20, § 11. The act of March 3, 1875, provided that no circuit or district court should 'have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law-merchant and bills of exchange.' 18 St. 470, c. 137, § 1. The provision in the act of March 3, 1887, determining the jurisdiction of the circuit courts of the United States and for other purposes, as amended by that of August 13, 1888, in these words: 'Norshall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made.' 25 St. 433, 434, c. 866, § 1.
It thus appears that the act of 1887, in respect to suits to recover the contents of promissory notes or other choses in action, differs from the act of 1789 only in the particular that the act of 1887 excludes, under certain circumstances, from the cognizance of the circuit and district courts of the United States suits in favor 'of any subsequent holder, if such instrument be payable to bearer, and be not made by any corporation.' It is not necessary now to consider the meaning of the words just quoted; for the present suit is by an assignee of a promissory note payable, not to bearer, but to the order of the payee. And we have only to inquire as to the circumstances under which the court below could take cognizance of a suit of that character. That inquiry is not difficult of solution.
It was settled by many decisions, under the act of 1789, that a circuit court of the United States had no jurisdiction of a suit brought against the maker by the assignee of a promissory note payable to order, unless it appeared, affirmatively, that it could have been maintained in that court in the name of the original payee. Turner v. Bank, 4 Dall. 8, 11; Montalet v. Murray, 4 Cranch, 46; Gibson v. Chew, 16 Pet. 315, 316; Coffee v. Bank, 13 How. 183, 187; Morgan's Ex'r v. Gay, 19 Wall. 81, 82. There were these recognized exceptions to that general rule in its application to promissory notes: (1) That an indorsee could sue the indorser in the circuit court, if they were citizens of different states, whether a suit could have been brought or not by the payee against the maker; for the indorsee would not claim through an assignment, but by virtue of a new contract between himself and the indorser. Young v. Bryan, 6 Wheat. 146, 151; Mollan v. Torrance, 9 Wheat. 537, 538. (2) The holder of a negotiable instrument payable to bearer or to a named person or bearer could sue the maker in a court of the United States, without reference to the citizenship of the original payee or original holder, because his title did not come to him by assignment, but by delivery merely. Bank v. Wister, 2 Pet. 318, 326; Thompson v. Perrine, 106 U.S. 589, 592, 1 Sup. Ct. Rep. 564, 568, and authorities there cited. There can be no claim that the present case is within either of those exceptions.