5. That the security which the bondholders | Dows, and Calvin Burnes, neither of whom
had upon that line and the other seemed to ren- resides within the jurisdiction of the court, or
der the place of connection between the branch has been served with process.
and the main line unimportant, as regards the
security for their loan.

We are of opinion, therefore, that the complainants had no right to rely on the statement concerning the length of the line as materially affecting their security, and that Mr. Winston committed no fraud in the part he took in that matter. This view is reinforced by the admission of the bill, that the branch road was completed mainly out of the money arising from the bonds sold to plaintiff and others, and that several years after both it and the main line had been finished and in operation, both roads were sold under the two mortgages; that the [245] branch line was sold under foreclosure proceedings inaugurated by Van Weel, and was bought in for $10,000 by Mr. Berg, one of Van Weel's associates as bondholder, and that they now, as far as appears, own the road their money was used to build.

[246]

If, however, they were before the court, they are not charged with any breach of duty with which they were intrusted.

The application of the money arising from the mortgage bonds was not by the mortgagors intrusted to them, nor had they any control over it after the bonds were sold.

It is not alleged that they refused to foreclose the mortgage when it became forfeited by nonpayment of interest, or that they failed to perform any duty imposed upon them by the mortgage.

It is asserted, however, that Frederick H. Winston, as president of the company, was bound to see that the money raised on these bonds was used exclusively in the construction of the branch road, and that, in this regard, he was a trustee for the lenders of the money. We are unable to see any such trust in the matter.

The contracting parties, in regard to this loan,
Other transactions are mentioned as fraudu- were the bondholders and the Southwestern
lent, such as that Mr. Winston converted some Co. The one became debtor for the money
of the money arising from these bonds to his loaned, the other became creditor. Mr. Win-
private use, and not to the purpose of the Com-ston, as the president of the Company, repre-
pany. The answer to this is, that Mr. Winston sented the Company, the borrower. The lend-
came under no obligation to see to the applica- ers desired a security for the payment of their
tion of this money as the bondholders might
think it ought to be applied.. They had bought
their bonds, paid their money, and received
their security. The money so diverted was the
money of the Southwestern Co., and not their
money.

money, which they obtained in the mortgage,
and their trustees in that trust were Dows,
Burnes, and F. S. Winston. They, in that in-
strument, undertook to secure the building of
this road out of the money loaned, by requiring
its deposit with the Rock Island Co., and its
disbursement, for that purpose, under its super-
vision. But if the loan should produce more
than was necessary for that purpose, what was
to become of it? Was it to go back to the lend-
ers? There is no hint of that kind. It was im-
practicable to do so, because the bonds would,
many of them, have changed hands. As to the
new owner, it would have been a mere gratuity
to return it. And the original lender had no in-
terest in the matter. Instead of this, it is ex-
pressly declared that the Rock Island Co. could
relieve itself of further obligation in the matter
by payment to the president of the Company.

The wrong done by Winston in that matter,
if wrong there was, was done to that company
and not to the bondholders. They had provided
their own means of insuring the building of this
branch road, by disbursing the money through
the Rock Island Co., and it was successful.
The road was built. There was no privity be-
tween Mr. Winston and these bondholders as to
his use of money which they had loaned to the
Company, which was no longer their money.
The error which pervades the bill throughout
is to treat this corporation, to which the bond-
holders loaned their money, as if it had no ex-
istence, as if they had loaned it to Mr. Winston When thus paid, did he hold it as trustee for
and held his personal obligation that it should all the bondholders? If so, under what trust or
be honestly applied, and he be responsible for the what obligation? Could he return it to the
repayment of the loan. If Mr. Winston cheated bondholders, with the bonds still outstanding
this Company out of its money, the right to against the Company? Or did he hold it merely
redress for that wrong is in the Company or in as the representative of the Company of which
its stockholders. As a creditor of the Company, he was president? We think it was clearly the
Mr. Van Weel has no right to interfere in the money of the Company, and could have been
matter until he has a judgment against the Com- used by it for the purchase of rolling stock,
pany, with an execution returned nulla bona.general equipment, or any other legitimate use
He has not in this suit shown any right to use
the name of the Company or of its stockholders
to obtain redress for a tort committed on them.
United States v. Union Pacific R. R. Co. 98 U. S.
614 [Bk. 25, L. ed. 154].

There are probably other allegations of fraud, but they are no better founded than these, and we can give them no further attention.

2. As regards the matter of trust, which is one of the grounds of relief set up in the bill, we need not occupy much time in its considera

tion.

The trustees in the mortgage, which is the only express trust that we can find set out in the bill, were Frederick S. Winston, David

of its own money.

This money belonged to the Company. The road was built-the only interest in the nature of a trust which the lenders had attempted to protect by the control of the funds. The obligation of Mr. Winston in the disposition of the money, if any of it came to his hands, was to the Company. If it was lost, it was the Company's loss, not appellant's. If he improperly or fraudulently converted it to his own use, he was liable to the Company and not to the plaintiff in this suit. There was no privity or trust relation between him and them in this regard.

We think appellant has shown no right to relief in this suit, that the demurrer was prop

[247]

erly sustained, and the decree of the Circuit | the grantee of a ferry right such as is claimed
Court dismissing the bill is therefore affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

by the City of New York, has never been de termined or covered either by the decision in Conway v Taylor, 1 Black, 603 (66 U. S. bk. 17, L. ed. 191), or by any of the authorities collected in Cardwell v. Bridge Co. 113 U. S. 207 (Bk. 28, L. ed. 960).

It does not follow from Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365 (Bk. 27, L. ed. 419), that the holder of a coasting license has no right to complain when he is prohibited from traversing the waters of the United States in any mode and for any purpose he may choose. On its face a coasting license does not contain any restriction. If a superior right is claimed in virtue of a grant by a State, and the power of the State to grant such right is contested, it is a federal question.

Conway v. Taylor, 1 Black, f93 (66 U. S. Bk. 17, L. ed. 191); Judiciary Act, R. S. S 709; Wiggins Ferry Co. v. East St. Louis, 107 U. S., 365 (Bk. 27, L. ed. 419).

This action being in tort is in its nature sev

Removal of causes-suit arising under Constitueral.
tion or laws of the United States-separate
controversy ferries-right of City of New
York to establish--whether exclusive.

1. Where it appears that some title, right, privilege or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case is one arising under the Constitution or laws of the United States. 2. A separate defense by one defendant in a joint suit against him and others upon a joint or joint and several cause of action, does not create a separate controversy so as to entitle him to removal under the Act of 1875.

Skinner v. Gunten, 1 Wm. Saund. 230; Hutchins v. Hutchins, 7 Hill, 107: Jones v. Baker, 7 Cow. 445; Boyd v. Gill, 19 Fed. Rep. 145; Smith v. Rines, 2 Sumn. 346.

An examination of the authorities will show that it was the intention of Congress, in passing the Act of 1875, to provide that, in a case like the present, the suit could be removed.

Smith v. Rines, 2 Sumn. 346; Wood v. Davis, 18 How. 468 (59 U. S. bk. 15, L. ed. 460); Carneal v. Banks, 10 Wheat. 187 (22 U. S. bk. 6, L. ed. 299); Cameron v. M'Roberts, 3 Wheat. 591 (16 U. S. bk. 4, L. ed. 467); G. & B. S. M. Co. v. F. S. M. Co. 18 Wall. 553, 579 (85 U. S. bk. 21, L. ed. 914, 920); Yulee v. Vose, 99 U. S. 545 (Bk. 25, L. ed. 356); Field v. Lownsdale, 1 Deady. 288; Fraser v. Jennison, 106 U. S. 191 (Bk. 27, L. ed. 131); Ayres v. Wiswall, 112 U. S. 187 (Bk. 28, L. ed. 693). Mr. W. W. McFarland, for appellees: The case is not removable, as to the Independent Steamboat Co. on the ground that there APPEAL from the Circuit Court of the is a separable controversy between that Com

3. The decision of the question whether the City
of New York has, under its charter, the exclusive
right to establish ferries between Manhattan Island
and the shore of Staten Island on the Kill von Kull,
and, if so, whether the defendants have, in law and
in fact, interfered with that right by setting up and
operating such a ferry, does not depend on the
Constitution or laws of the United States.
[Nos. 836, 837.]

Submitted Apr. 22, 1885. Decided Nov. 2, 1885.

United States for the Southern District of pany and the plaintiff.

New York.

Hyde v. Ruble, 104 U. S. 409 (Bk. 26, L. The history and facts of the case sufficient-ed. 823); Alum v. Thomas, 16 Fed. Rep. 732; ly appear in the opinion of the court.

Messrs. Charles McNamee, Roscoe Conkling and A.L. Pincoffs, for appellants: "If a part of a case turns on a federal law, the circuit court has jurisdiction."

Osborn v. Bank of U. S. 9 Wheat. 738 (22 U. 8. bk. 6, L. ed. 204).

As to what are cases arising under the laws of the United States, see R. R. Co. v Mississippi, 102 U. S. 135 (Bk. 26, L. ed. 96); West. U. Tel. Co. v. Nat. Tel. Co. 19 Fed. Rep. 561.

In this case removal is claimed because provisions of the Constitution and federal laws are ingredients of the defense.

If there is any question whether the privileges claimed can come into collision with the rights secured by the coasting license, such question is a federal one.

Ry. Co. v. Renwick, 102 U. S. 180 (Bk. 26, L. ed. 51); State of Ill. v. C. B. & Q. R. R. Co. 16 Fed. Rep. 706.

The question raised as to the respective rights of the holders of a coasting license and

Moore v. Construction Co. 19 Fed. Rep. 803. There is but one cause of action, and that is against the defendants jointly.

L. & N. R. R. Co. v. Ide, 114 U. S. 52 (Bk. 29, L. ed. 63); Putnam v. Ingraham, 114 U. S. 57 (Bk. 29, L. ed. 65).

"The authority to establish and regulate ferries is not included in the power of the General Government to regulate commerce."

Conway v. Taylor, 1 Black, 603 (66 U. S. bk. 17, L. ed. 191).

It does not appear that the case is one arising under the Constitution and laws of the United States.

Manhattan Ry. Co. v. Mayor, 18 Fed. Rep. 195; McFadden v. Robinson, 22 Fed. Rep. 10; Sawyer v. Concordia Parish, 4 Woods, 273; Gold Washing Co. v. Keyes, 96 U. S. 203 (Bk. 24, L. ed. 656); McManus v. O'Sullivan, 91 U. S. 578 (Bk. 23, L. ed. 390; Brown v. Atwell, 92 U. S. 327 (Bk. 23, L. ed. 511); Adams Co. v. B. & M. R. R. Co. 112 U. S. 123 (Bk. 28, L. ed. 678).

Mr. Chief Justice Waite delivered the opin- [out of that State was to be done in the Cities of
ion of the court:
New York and Brooklyn and the several vil-
lages, landing places, cities and towns on the
Hudson River, Staten Island and Long Island,
in New York, accessible by water.

These are appeals from orders of the Circuit Court remanding a suit which had been removed from a state court under the Act of March 3, 1875, ch. 137, 18 Stat. at L. 470. The questions to be decided arise on the following facts:

The defendants, Starin, Independent Steamboat Co., Starin's City, River & Harbor Transportation Co. and New York & Staten Island The Mayor, Aldermen and Commonalty of Steamboat Co., each filed a separate answer to the City of New York, a municipal corporation the complaint. All the other defendants, who are of the State of New York, commonly called the the masters or pilots or engineers employed in City of New York, brought a suit in equity on running the several boats, united in one anor about the 11th of August, 1884, in the Supe- swer. The answers all contained substantially rior Court of the City of New York, against the same defenses. They admit the ownership John H. Starin, Independent Steamboat Com- of the boats as set forth in the complaint, expany, Starin's City, River & Harbor Transpor- cept that it is alleged The Castleton betation Company of New York, New York and longs to the New York & Staten Island SteamStaten Island Steamboat Company, David Man- boat Co. instead of Starin. They admit the ning, Franklin Wilson, William Clark, John charter of the City, with words purporting to G. Belknap, James B. Corwin, Max Golden, grant certain rights as to the establishment of [249] Samuel Underhill and Frank Smith, to restrain ferries from Manhattan Island to the opposite them from using and employing the steam fer- shores, but deny that this grant extends to ferryboats "Pomona," "D. R. Martin," "Laura ries between New York and that part of Staten M. Starin" and "Castleton," or any other ves- Island which borders upon the Kill von Kull. sel or vessels of any kind, for and in the trans- They admit that the several boats mentioned in portation of persons, animals, vehicles, freight, the complaint were run at stated times by the goods and chattels from or to pier No. 18, Independent Steamboat Co., under the manNorth River, or from or to any place in Management of the masters and engineers, without hattan Island, to or from certain landing places the license or permission of the City, for the on the shore of Staten Island, without the li- transportation of persons and property between cense or permission of the plaintiffs; and also pier 18, North River, which is on Manhattan for account of moneys received by the defend- Island, and certain landing places on the shore ants, or any or either of them, for such trans- of Staten Island, making daily fourteen trips portation. Both Manhattan Island and Staten or thereabouts; but they deny that, in so doing, Island are in the State of New York. The cause the Company either operated a ferry or usurped of action, as stated in the complaint, is that the any franchise belonging to the City. They City, under its charter granted originally Janu- also deny the allegations in the complaint as to ary 15, 1730, by the Province of New York, and the connection of the defendant Starin with since confirmed by the State of New York, has the Independent Steamboat Co., and deny that the exclusive right of establishing ferries from Starin is the person who is actually operating Manhattan Island to the opposite shores, in such the boats. and so many places as the common council may think fit; that the defendants without the permission of the City, have set up and are maintaining a ferry between Manhattan Island and 1. That the Independent Steamboat Comcertain landing places on Staten Island, and for pany is a corporation, organized and incorpothat purporse employ the boats above named; rated under the laws of New Jersey, for the that the defendant Starin is the owner of The purpose of transporting persons and property Castleton and The D. R. Martin and the per- by water, as a common carrier for hire, in and son chiefly interested in Starin's City, River over the waters of the Hudson River, Kill von and Harbor Transportation Company of New Kull, Raritan Bay, and their tributaries, beYork, which owns The Laura M. Starin, and in tween places on such waters in New York and the New York and Staten Island Steamboat New Jersey, including Staten Island and Long Company, which owns The Pomona; that while Island, and the Cities of New York and Brookthe business is done in the name of the Inde-lyn; that the Company chartered the boats in pendent Steamboat Co., that Company was organized and incorporated through his instrumentality and in his interest, and is composed of but three persons, all of whom are in his employ and under his control; that the incorporation of the Company was a devise for his own personal benefit; and that he is in fact the 2. That all the boats in question are enrolled person actually operating the ferry. The cer- and licensed, under the laws of the United tificate of incoporation, a copy of which is at- States for carrying on the coasting trade, as tached to the complaint, shows that the Com-vessels of the United States, and that the indipany was orgaized under the laws of New Jer-vidual defendants described as masters or engisey, July 26, 1884, with a capital of $5,000, divided into 500 shares of $10 each, all owned by three persons, for the transportation of persons and property upon water, as common carriers for hire; that the principal part of the business of the Company in New Jersey was to be transacted in Jersey City, and that the business 115 U. S. U. S., Book 29.

[250]

The answers then allege, "as a matter of special defense under the laws of the United States":

question from the several owners thereof, and
leased wharves and landing places in New York
and on the shores of Staten Island bordering on
the Kill von Kull, for the purpose of engaging
in the business of transportation by water be-
tween such wharves and landings.

neers on the boats are all licensed under the
laws of the United States to act as masters or
pilots, or as engineers, on steam vessels upon
the waters traversed by the boats in question.

3. That for a number of years, terminating in
1874, steamboats, similar to those operated by
the Company, and doing a transportation busi-

25

389

[251]

252]

[257]

ness similar to that in which the Company is
engaged, had been, without any license or per-
mission from the City, navigated from pier 18,
New York, to the landing places on Staten Is-
land made use of by the Company, and back;
that large sums were realized therefrom, and
that since 1874 this business has greatly in-
creased.

4. That the waters of the Hudson River or
Bay of New York, and the Kill von Kull, are
waters of the United States, and public and
common highways of interstate and interna-
tional commerce; that the steamboats, as ope-
rated by the Company, do not constitute a ferry
within the meaning of the laws of the United
States, or of the State of New York, or of the
city charter, but that the City seeks, under the
cover of its charter and by this suit, to establish
in itself, as and for a monopoly and as private
property, the ownership of all rights to carry
on commercial intercourse, consisting in the
daily or regular interchange or transportation
of passengers and property between Manhattan
and Staten Islands, over such waters, and to
obstruct the navigation of such waters, although
carried on by citizens of the United States in
steam vessels duly enrolled and licensed under
the laws of the United States, and navigated
by masters, pilots and engineers duly licensed
under the laws of the United States, thus prac-
tically nullifying the laws of the United States
regulating commerce and navigation.

After the answers were filed, two petitions were presented for a removal of the suit to the circuit court, one by all the defendants, on the ground that the suit was one arising under the Constitution and laws of the United States, and the other, by the Independent Steamboat Co. alone, on the ground that there was in the suit a controversy wholly between that Company and the City as to whether the Company had or had not the right to use and operate its steamboats" in the way contended for, and that this controversy could be fully determined as between them.

A copy of the record in the state court having been filed in the Circuit Court of the United States, that court remanded the cause, and thereupon these appeals were taken, one by all the defendants, and the other by the Independent Steamboat Co. alone. The two appeals were docketed in this court separately.

We will first consider whether the suit is one which arises under the Constitution or laws of the United States; for, if it is not, the order to remand was right, so far as the removal upon the application of all the defendants is concerned.

824 [22 U. S. bk. 6, L. ed. 224]; The Mayor v.
Cooper, 6 Wall. 252 [73 U. S. bk. 18, L. ed.
8521; Gold Washing & Water Co. v. Keyes, 96
U. S. 201 [Bk. 24, L. ed. 658]; Tennessee v. Da-
vis, 100 U. S. 264 [Bk. 25, L. ed. 650]; Rail-
road Co. v. Mississippi, 102 U. S. 140 [Bk. 26,
L. ed. 98]; Ames v. Kansas, 111 U. S. 462 [Bk.
28, L. ed. 487]; Kansas Pacific v. Atchison R.
R. Co. 112 U. S. 416 [Bk. 28, L. ed. 795];
Provident Savings Soc. v. Ford, 114 U. S.
641 [Bk. 29, L. ed. 261]; U. Pacific R. R. Re-
moval Cases, 115 U. S. 11 [Bk. 29, L. ed. 319].

The questions in this case, as shown by the
pleadings, are (1) whether the City of New York
has, under its charter, the exclusive right to es-
tablish ferries between Manhattan Island and
the shores of Staten Island, on the Kill von
Kull; and, if it has, then (2) whether the de-
fendants have, in law and in fact, interfered
with that right by setting up and operating
such a ferry. The determination of these ques-
tions depends (1) on the construction of the
grant in the charter of the City, and (2) on the
character of the business in which the defend-
ants are engaged. It is not contended that there
is anything either in the Constitution or the
laws of the United States which takes away the
right from the City, if it was in fact granted by
the original charter before the Revolution; or
which defines what a ferry is or shall be, or pro-
vides that enrolled and licensed steamboats
managed by licensed officers, may be run on the
public waters as ferry-boats, without regard to
grants that may have been made by competent
authority of exclusive ferry privileges; and that [258]
is not the defense set up in the answers in this
case. The question here is as to the extent of
the ancient grant made to the City, not as to
the rights of the defendants in the navigation
of the waters of the United States irrespective
of this grant.

It is not pretended that the United States
have in any manner attempted to interfere with
the power of a State to grant exclusive ferry
privileges across public waters between places
within its own jurisdiction. No attempt is
made by the City to control the use of the
licensed and enrolled vessels of the defendants
or their licensed officers, in any other way than
by preventing them from running as a ferry be-
tween the points named. They may run as
they please, and engage in any business that
may be desirable, not inconsistent with the ex-
clusive ferry rights of the City. The claim of
the City is based entirely on its charter; and it
seeks in its complaint to control only that part
of the navigation of the public waters in ques-
tion which is connected with the establishment
The character of a case is determined by the and operation of ferries between New York and
questions involved. Osborn v. Bank of U. S. the specified landing places on Staten Island.
9 Wheat. 824 [22 U. S. bk. 6, L. ed. 224]. If Although the prayer for judgment, when taken
from the questions it appears that some title, by itself, may appear to go further, it must be
right, privilege or immunity, on which the re- construed in connection with the cause of ac-
covery depends, will be defeated by one con- tion as stated in the complaint, and limited ac-
struction of the Constitution or a law of the cordingly. The defense is that the defendants
United States, or sustained by the opposite con- are not operating a ferry within the meaning of
struction, the case will be one arising under the the charter, or, if they are, that it is not such a
Constitution or laws of the United States, with- ferry as comes within the monopoly of the City.
in the meaning of that term as used in the Act If they are not operating such a ferry, or if
of 1875; otherwise, not. Such is the effect of they are, and it appears that the monopoly
the decisions on this subject. Cohens v. Vir-granted to the City does not include ferries be-
ginia, 6 Wheat. 279 [19 U. S. bk. 5, L. ed. 284];
Osborn v. Bank of United States, 9 Wheat.

tween New York and Staten Island, on the Kill
von Kull, they must prevail in the final deter-

[259]

mination of the suit. The decision of these
questions does not depend on the Constitution
or laws of the United States. There is nothing
in the Constitution or laws of the United States
entering into the determination of the cause
which, if construed one way will defeat the de-
fendants, or in another sustain them.

It remains to consider the removal on the ap-
plication of the Independent Steamboat Co.
alone. The suit is against all the defendants
jointly, on the allegation that, acting in com-
mon, they are all engaged in violating the rights
of the City by keeping up and maintaining the
ferry in question. The averment in the com-
plaint is that the defendant Starin is in reality
the person actually operating the ferry, and that
he uses the other defendants as his instruments

GEORGE H. WOOSTER.

(See S. C., Reporter's ed., 285-288.)
Practice-death of appellant-appeal may pro-
ceed at the suit of survivors-sec. 956, R. S.

Upon appeal from a decree against all of the de-
the death of one of the appellants and failure of
fendants jointly, upon a point cause of action,after
his representatives to appear, the appeal may pro-
ceed, under the Judiciary Act, sec. 81 (sec. 956, R. S.),
at the suit of the survivors.
[No. 408.]
Argued Oct. 19, 1885.

Decided Nov. 2, 1885.

States for the Southern District of New

York.

for that purpose. It is conceded that the In-APPEAL from the Circuit Court of the United
dependent Steamboat Co. does not own the
boats running on the route. They all belong
to Starin or to companies in which he is the
person chiefly interested. The Independent Co.
was not organized until a few days before this
suit was begun. It has a capital of only $5,000,
and while it claims to have chartered the boats

On motion to abate the suit as to deceased
appellant and proceed at the suit of the sur-
vivors.

The case is sufficiently stated by the court.
Messrs. W. F. Mattingly and Horatio
P. Allen, for appellants, in support of motion.
Messrs. J. E. Hindon Hyde and Fred-
erick H. Betts, for appellee, contra:

Neither section applies to appeals from a final judgment.

Green v. Watkins, 6 Wheat. 260 (19 U. S. bk. 5, L. ed. 255).

A suit cannot abate after a final judgment in favor of a plaintiff, except through the fault of the plaintiff himself or his representatives.

in question from their respective owners and to
be engaged in running them on the route, it
does not deny that the other defendants are di-
rectly interested in the establishment and main-
Section 956, Revised Statutes U. S., is to be
tenance of the ferry, if it be one, which is be- read in connection with section 955. The latter
ing operated by and in the name of the Com-relates only to the death of a party before final
pany. The only controversy in the case, as judgment. Section 956, properly construed,
stated in the complaint, is as to the right of the relates also to the death of a party before final
defendants to keep up and maintain a ferry on judgment.
the route in question. Upon one side of that
controversy is the plaintiff, and upon the other
all of the defendants. There cannot be a full
determination of this one controversy unless all
the defendants are parties. The case as stated
in the complaint makes Starin the principal de-
fendant, and the Independent Co. only an in-
strument of his. The object is to prevent him,
as well as the others, from using these boats or
any others they may own or control, in the way
these are being used. There is, according to The suit below was in equity and brought
the complaint, but a single cause of action, and by George H. Wooster, the appellee, against
that is the violation of the exclusive ferry rights Solomon Moses, Gotcho Blum and Solomon
of the plaintiff by the united efforts of all the Weil, partners under the name Moses, Blum &
defendants. The case is therefore within the Weil, for an infringement of letters patent. A
rule established in L. & N. Railroad Co. v. Ide, final decree for an injunction and damages was
114 U. S. 52 [Bk. 29, L. ed. 63]; Putnam v. rendered against the defendants, May 23, 1883.
Ingraham, 114 U. S. 57 [Bk. 29, L. ed. 65]; From this decree all the defendants appealed,
Pirie v. Tvedt, 115 U. S. 41 [Bk. 29, L. ed. and the appeal was docketed here October 12,
331], that a separate defense by one defendant, 1883. Blum died January 2, 1884. On the 11th
in a joint suit against him and others upon a of April, 1885, Wooster appeared in this court
joint or a joint and several cause of action, does and suggested his death, whereupon the usual
not create a separate controversy so as to entitle order under Rule 15, sec. 1, was entered, that,
that defendant, if the necessary citizenship ex-unless his representatives should become parties
ists as to him, to a removal of the cause under
the second clause of section 2 in the Act of
1875.

Mr. Chief Justice Waite delivered the opinion of the court:

within the first ten days of this term, the ap-
peal would be dismissed. Proof of the due
publication of a copy of this order has been
made, but the representatives of the deceased
appellant have not appeared. The surviving
appellants now move that the action abate as to
the decedent, but that it proceed at their suit
as survivors.

The Judiciary Act of 1789, 1 Stat. at L. 90, [287]
ch. 20, sec. 31, provided that “If there be two
or more plaintiffs or defendants, and one or
more of them shall die, if the cause of action
shall survive to the surviving plaintiff or plain-
tiffs, or against the surviving defendant or de-
fendants, the writ or action shall not be there-