*  *  But  it  was  equally  well  settled  that  if  the  transfer
was  fictitious,  the  assignor  or  grantor  continuing  to
be  the  real  party  in  interest,  and  the  plaintiff  on
record  but  a  nominal  or  colorable  party,  his  name
being  used  only  for  purposes  of  jurisdiction,  the  suit
would  be  essentially  a  controversy  between  the  as-
signor or  grantor  and  the  defendant,  notwithstanding
the  formal  assignment  or  conveyance,  and  that  the
jurisdiction  of  the  court  would  be  determined  by  their
citizenship  rather  than  that  of  the  nominal  plaintiff.  ^ '

Under  the  Act  of  1789,  it  early  became  the  law  that  if
jurisdiction  was  shown  on  the  face  of  the  plaintiff  ^s  plead-
ing, the  defendant  could  attack  the  truth  of  the  juris-
dictional allegations  only  by  a  plea  in  abatement,  and
that  such  plea,  in  accordance  with  the  general  rule  gov-
erning pleas  of  that  character,  must  be  filed  before  the
filing  of  a  plea  to  the  merits.  The  Act  of  1875  largely
extended  the  jurisdiction  of  the  United  States  Courts
over  a  class  of  cases  in  which  it  was  exceedingly  easy  to
make  colorable  transfers  under  such  circumstances  that
it  would  be  difficult  for  the  defendant  to  know  the  facts
sufficiently  early  to  plead  them  in  abatement.  This  pro-
vision of  the  statute  as  to  collusive  assignment  was  there-
fore incorporated  in  the  Act.    It  was  carried  forward


ASSIGNMENTS  AND  TRANSFERS.  293

into  the  Act  of  1888,  although  the  purpose  and  effect  of
the  latter  statute  was  to  restrict  the  jurisdiction  of  the
United  States  Courts.    The  Supreme  Court  said  :—

*4t  does  not,  any  more  than  did  the  Act  of  1789,  pre-
vent the  courts  from  taking  jurisdiction  of  suits  by
an  assignee  when  the  assignment  is  not  fictitious,
and  actually  conveys  all  the  interest  of  the  assignor
in  the  thing  assigned,  so  that  the  suit  when  begun
involves  really  and  substantially  a  dispute  or  contro-
versy in  favor  of  the  assignee  for  himself  and  on  his
account  against  the  defendant ;  but  it  does  in  positive
language  provide  that,  if  the  assignment  is  collusive
and  for  the  purpose  of  enabling  the  assignee  to  sue
in  the  courts  of  the  United  States  for  the  benefit  of
the  assignor,  when  the  assignor  himself  could  not
bring  the  action,  the  court  shall  not  proceed  in  the
case.''»

335.  Application  of  tjie  Statutory  Provision  ^  Cpnqreli^
Cases.
