"That was a statutory proceeding to try in a summary way the title to personal property seized on execution. It was nothing more than a method prescribed by the law to enable the court to direct and control its own process, and, as decided by this court, was merely auxiliary to, and a graft upon, the original action."

The definition of a suit quoted from the opinion in West v. Aurora City was good enough for the purposes of that case, but a better one was given by Chief Justice Marshall in Weston v. City Council of Charleston, 2 Pet. 464, 7 L. Ed. 486, where he said:

"The term is certainly a very comprehensive one, and is said to apply to any proceeding in a court of justice by which an individual pursues that remedy in the court of justice which the law affords him. The modes of proceeding may be various, but, if the right is litigated between the parties in a court of justice, the proceeding by which the decision is sought is a suit."

This definition is approved in Holmes v. Jennison, 14 Pet. 540, 10 L. Ed. 579; Case of Sewing-Mach. Cos., 18 Wall. 553, 585, 21 L. Ed. 914; Kohl v. U. S., 91 U. S. 367, 375, 23 L. Ed. 449; New Orleans, M. & T. R. Co. v. Mississippi, 102 U. S. 135, 26 L. Ed. 96; Upshur Co. v. Rich, 135 U. S. 467, 474, 10 Sup. Ct. 651, 34 L. Ed. 196, and cases there cited; Wilson v. Seligman, 144 U. S. 41, 12 Sup. Ct. 541, 36 L. Ed. 338; Mooney v. Manufacturing Co., 34 U. S. App. 581, 18 C. C. A. 421, 72 Fed. 32. See, also, Iron Co. v. Bates (C. C.) 56 Fed. 737; In re The Jarnecke Ditch (C. C.) 69 Fed. 161, and other cases cited in 2 Notes, U. S. Rep. 557. In McCullough v. Large (C. C.) 20 Fed. 309, it was held that a rule upon a United States internal revenue collector, granted by a state court upon the petition of the sheriff, to show cause why an attachment should not issue against him for contempt of the process of the court, in refusing to permit the sheriff to enter a bonded warehouse and seize in execution whiskies held therein for internal revenue tax, was a civil suit removable into the United States circuit court under section 643 of the Revised Statutes.

While the proceeding now in question evidently was intended to be auxiliary to the decree of the state court, and was so in form, yet in fact, ratione materiæ, it was not of that character. It was brought against a corporation or its officers, who were not parties to that decree, nor bound thereby by reason of privity to the defendants or any of them; and the order of injunction entered can be regarded only as an attempt to bind a new party which was not affected by the original order. Whether, under the state practice, it was regular and permissible, after final decree against the original defendants, to bring in a new party by motion, as was done in this instance, and obtain against it a preliminary injunction, as if it had been named a defendant in the bill, as already suggested, need not be considered, and the party so brought in was not bound to inquire. The company might have waived service, and on being brought into the case as it was, and finding the court asserting jurisdiction over it, it had the same right to ask a removal as it would have had if it had been named originally in the bill, and brought in by process duly served before the decree against the other parties. As against it, there had been no decree, and the motion for an injunction was a new proceeding.

The right of removal is rested by counsel upon section 643 of the Revised Statutes, which provides as follows:

"When any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office, or of any such law, or on account of any right, title or authority claimed by such officer or other person under any such law

the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the circuit court," etc.

The record shows a contract made by the secretary of the treasury with the Congress Construction Company for the building of the proposed addition to the post office in pursuance of the acts of July 1, 1898, and March 3, 1899 (30 Stat. 597, 1074), by which appropriations were made for the construction thereof. The provision in section 643 for the removal of causes has been liberally construed, as, for manifest reasons, it should be. In Warner v. Fowler, 4 Blatchf. 311, 29 Fed. Cas. 255, where the action was against a postmaster for refusal to deliver a letter to the plaintiff, the action was held to be removable; and the decision was cited with approval in U. S. v. James, 13 Blatchf. 207, 26 Fed. Cas. 577. These cases, it is true, were decided at circuit; but they seem to be justified by the decision of the supreme court in U. S. v. Bromley, 12 How. 88, 13 L. Ed. 905, where, in an action of debt, founded on the tenth section of the post office law of March 3, 1845 (5 Stat. 736), that act was held to be a revenue law of the United States. The case of U. S. v. Norton, 91 U. S. 569, 23 L. Ed. 454, is cited to the contrary, but that was a criminal case, in which the question was whether in a prosecution under the act of May 17, 1864 (13 Stat. 76), for the establishment of the postal money-order system, the limitation of two years prescribed by the act of April 30, 1790 (1 Stat. 119, § 32), should be applied, or the limitation of five years prescribed by the act of March 26, 1804 (2 Stat. 290, § 3), concerning "crimes arising under the revenue laws of the United States"; and, in accord with the rule of strict construction in favor of liberty, it was held that the money order law was not a revenue law, within the meaning of the act of March 26, 1804. But in the opinion the cases of U. S. v. Bromley and U. S. v. Fowler, supra, were referred to, and declared "clearly distinguishable, with respect to the grounds upon which the judgment proceeded." Our conclusion is that the jurisdiction of the court below was complete, and that its order dissolving the injunction should be affirmed.

SEAMAN, District Judge (concurring). The application to enjoin the work of enlarging the temporary post-office building rests on no substantial ground, and the order thereupon of the court below is clearly sustainable if a case was presented for its removal from the superior court of Cook county. Unquestionably the jurisdiction of the United States court to that end must be conferred by stat ute, but "the right and duty of the national government to have its constitution and laws interpreted and applied by its own judicial tribunals," and to thus protect its officers and agents lawfully en

gaged in the execution of its enactments, is well established. Mayor v. Cooper, 6 Wall. 247, 253, 18 L. Ed. 851; Tennessee v. Davis, 100 U. S. 257, 265, 25 L. Ed. 648. Such removal from a state court is not in the nature of appellate jurisdiction, but a mode of acquiring original jurisdiction of a cause within federal cognizance. Railway Co. v. Whitton's Adm'r, 13 Wall. 270, 287, 20 L. Ed. 571. The operations against which the injunctional order of the state court was directed were conducted under the authority of the secretary of the treasury, in purported execution of the acts of congress providing for an addition to the post-office building. It is true that no invasion of private rights of occupancy was thereby authorized, and that none could be authorized except through legal condemnation, but such rights were clearly determinable in the federal courts, if the statute so provided; and I concur in the opinion that section 643 of the Revised Statutes is applicable to the case at bar, and that removal was proper. The tests are (1) that the secretary of the treasury, by whom the work was ordered, was an officer administering the revenue laws of the United States, acting "under color of his office," and not that the act in question related to "the raising of revenues" (vide U. S. v. James, 13 Blatchf. 207, Fed. Cas. No. 15,464; and (2) that new proceedings were pending in a state court against such action, wherein hearing was open to such officer and his agents. Both tests are satisfied, within the authorities cited in the opinion.

It is therefore ordered that the decree below be affirmed.

MEMORANDUM DECISIONS.

(99 Fed. 1003.)

CIMIOTTI UNHAIRING CO. v. AMERICAN UNHAIRING MACH. CO. SAME v. MISCHKE. (Circuit Court of Appeals, Second Circuit. January 25, 1900.) Appeals from the Circuit Court of the United States for the Southern District of New York. Motions to remand both causes to the circuit court in order to enable that court to entertain motion for rehearing. See 98 Fed. 297. Henry Schreiber, for the motion. Louis C. Raegener, opposed. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. Such an order as that prayed for cannot be made on the application of the parties or either of them. The court below alone can make the request. Roemer v. Simon, 91 U. S. 149, 23 L. Ed. 267.

(99 Fed. 1003.)

DEXTER v. KELLAS. (Circuit Court of Appeals, Second Circuit. January 30, 1900.) No. 98. In Error to the Circuit Court of the United States for the Northern District of New York. Sumner B. Styles, for plaintiff in error. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Order affirmed in open court.

(99 Fed. 1003.)

FONG CHONG PAN v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. February 5, 1900.) No. 585. Appeal from the District Court of the United States for the Northern District of California. E. J. Banning, Asst. U. S. Atty. Dismissed pursuant to subdivision 1 of the sixteenth rule.

(99 Fed. 1003.)

GERMAN SAVINGS & LOAN SOC. et al. v. NORTHWEST GENERAL ELECTRIC CO. (Circuit Court of Appeals, Ninth Circuit. January 8, 1900.) No. 446. Appeal from the Circuit Court of the United States for the District of Oregon. Milton W. Smith, for appellants. Ralph E. Moody, for appellee. Dismissed pursuant to stipulation of counsel.

(99 Fed. 1003.)

THE HOWARD CARROLL. (Circuit Court of Appeals, Second Circuit. March 14, 1900.) No. 89. Appeal from the District Court of the United States for the Southern District of New York. Robt. D. Benedict, for appellant. Wilhelmus Mynderse, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM.

We have carefully examined the record in this cause, and have reached the conclusion that the decree of the district court be affirmed, with interest and costs.

(99 Fed. 1004.)

ILLINOIS CENT. R. CO. v. BOUSLOG. (Circuit Court of Appeals, Fifth Circuit. March 5, 1900.) No. 853. In Error to the Circuit Court of the United States for the Eastern District of Louisiana. Girault Farrer, for plaintiff in error. Chas. S. Rice, A. E. Billings, and R. B. Montgomery, for defendant in error. Before PARDEE and SHELBY, Circuit Judges. PER CURIAM.

The judgment of the circuit court in this case is affirmed.

(99 Fed. 1004.)

LAWRENCE v. GRAND RAPIDS SAV. BANK. (Circuit Court of Appeals, Sixth Circuit. November 15, 1899.) No. 702. In Error to the Circuit Court of the United States for the Western District of Michigan. N. A. Fletcher, for plaintiff in error. Willard A. Keeney, for defendant in error. No opinion. Affirmed.

(99 Fed. 1004.)

LEDOUX v. FORRESTER et al. (Circuit Court of Appeals, Ninth Circuit. January 8, 1900.) No. 568. Appeal from the Circuit Court of the United States for the Eastern Division of the District of Washington. W. B. Heyburn, Littleton Price, E. M. Heyburn, and L. A. Doherty, for appellant. Albert Allen, for appellees. Dismissed pursuant to stipulation of counsel. See (C. C.) 94 Fed. 600.

(99 Fed. 1005.)

THE MELROSE. JONES v. OGILVIE. (Circuit Court of Appeals, Sixth Circuit. November 16, 1899.) No. 730. Appeal from the District Court of the United States for the Eastern District of Michigan. F. S. Masten, for appellant. John H. Goff, for appellees. No opinion. Affirmed.

(99 Fed. 1005.)

MINOR v. JONES. (Circuit Court of Appeals, Sixth Circuit. November 15, 1899.) No. 713. Appeal from the Circuit Court of the United States for the Southern District of Ohio. J. R. Shindel, for appellant. H. P. Lloyd, for appellee. No opinion. Reversed.

(99 Fed. 1005.)

NEW ENGLAND R. CO. v. CONROY. (Circuit Court of Appeals, First Circuit.) Question of law certified to the supreme court of the United States. See 20 Sup. Ct. 85, Adv. S. U. S. 85, 44 L. Ed.

(99 Fed. 1005.)

SCHNELLER v. NEW ORLEANS & N. E. R. CO. (Circuit Court of Appeals, Fifth Circuit. March 5, 1900.) No. 792. In Error to the Circuit Court of the United States for the Eastern District of Louisiana. J. J. Prowell and Carroll & Carroll, for plaintiff in error. H. H. Hall, for defendant in error. Before PARDEE and SHELBY, Circuit Judges.

PER CURIAM. The judgment of the circuit court in this cause is affirmed.

(99 Fed. 1006.)

STANDRIDGE et al. v. SUPREME LODGE ORDER OF GOLDEN CHAIN. (Circuit Court of Appeals, Fifth Circuit. January 30, 1900.) No. 907. Appeal from the Circuit Court of the United States for the Northern District of Georgia. Docketed and dismissed pursuant to the sixteenth rule.

(99 Fed. 1006.)

TENNESSEE COAL, IRON & RAILROAD CO. v. PIERCE. PIERCE v. TENNESSEE COAL, IRON & RAILROAD CO. (Circuit Court of Appeals, Fifth Circuit. February 13, 1900.) No. 846. In Error to the Circuit Court of the United States for the Northern District of Alabama. W. A. Percy and W. I. Grubb, for Tennessee Coal, Iron & Railroad Co. W. A. Gunter, for Pierce. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This case has heretofore been before this court (52 U. S. App. 355, 26 C. C. A. 632, 81 Fed. 814), and before the supreme court of the United States (173 U. S. 1, 19 Sup. Ct. 335, 43 L. Ed. 591), and the main propositions of law involved, including the rule of damages, have been conclusively settled. On the last trial in the circuit court the trial judge made rulings on both sides, which are here made the basis of 51 assigned errors. Forty-five of them relate to instructions to the jury, given and refused. It is unnecessary to pass specifically upon these rulings, and we only observe in relation thereto that, if they were erroneous, there was practically a compensation of errors, for none of them seem to have misled the jury from the law and facts of the case. The general charge given by the trial judge appears to be full,