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N ERROR to the Supreme Court of the State | the local land office between these parties as

IN ERROR to t

The history and facts appear in the

Statement of the case by Mr. Justice Field: This case comes before us from the Supreme Court of California. The plaintiff in the court below, the defendant in error here, is the holder of a patent of the United States for certain lands situated in Humboldt County, in that State, issued to him under the preemption laws upon proof of settlement and improvement, and the present action is to recover their possession. In his complaint he alleges his ownership in fee of the premises on a day designated, the entry thereon of the defendant without license, and the subsequent withholding of them; also that the value of the annual rents and profits of the premises is $800, for which sum and the restitution of the premises he prays judgment.

The answer of the defendant denies the several allegations of the complaint, and sets up in a special count, by way of a cross complaint, various matters, which, as he insists, constitute in equity a good defense to the action and entitle him to a decree; that he has an equitable right to the premises; that the plaintiff holds the title in trust for him; and that the plaintiff should be required to convey the same to him. The matters set up as grounds for equitable relief are the previous settlement upon the premises and their improvement by the defendant, and certain proceedings taken by him to acquire the title under the preemption laws, which were disregarded and held insufficient by the Land Department of the Government, but which he contends establish his right to the patents.

It appears from the record and findings of the court that in October, 1862, the defendant purchased from his brother William, then in occupation of the land, the possessory right of the latter to the premises and his improvements thereon, received a deed from him, and immediately thereafter went into possession which was held until March 23, 1865; that on that date, in consideration of $600 partly paid in cash, and partly payable in installments, the defendant contracted to convey the premises and improvements to the plaintiff Dilla, who thereupon was put into possession and continued in possession until the 5th of May, 1868; that he was then evicted under a judgment obtained by the defendant upon the contract of purchase, and the latter was restored to the possession. In July, 1869, the defendant removed to Arcata, about twenty miles distant, and remained there until October, 1871, when his family went back to the land, followed by himself in December. In April, 1872, he moved to Mattole, about eighty miles distant, and there remained until August, 1874, when he again returned. In October following he again moved to Arcata and did not return until March, 1875.

The land was surveyed in 1873, and the plat thereof filed in the Land Office in October of that year. On the 3d of that month the defendant Bohall filed his declaratory statement, alleging settlement on October 22, 1862, and claiming the land. On the 26th of December following, the plaintiff Dilla filed his declaratory statement, alleging settlement under the preemption laws on the 25th of March, 1865, and claiming the land. A contest thus arose in

to which was entitled to the land under the preemption laws. The register and receiver of the land office differed in their judgment, the receiver holding that the land should be awarded to Dilla, and the register that it should go to Bohall. The contest was thereupon transferred to the General Land Office at Washington, and the Commissioner sustained the claim of Dilla, holding that, from the time of his settlement in 1865 until ejected in 1868, he had fully complied with the law; that his absence since then was compulsory, as he was unable to make a residence on the land without being in contempt of the court under whose judgment he was evicted; that his non-residence was for that reason excusable, and should not be allowed to work against him. But as to Bohall, the Commissioner held that his residence on the land had not been continuous since his settlement, but had been interrupted by residence elsewhere for several periods; and that the occupation of tenants during such periods did not satisfy the provisions of the preemption laws, which required the continuous personal residence of the preemptor; and therefore his claim was rejected. The decision of the commissioner was affirmed on appeal by the acting Secretary of the Interior. It is upon this ruling, charged to be erroneous, that the defendant relies to maintain his claim for equitable relief. The local state court, upon these facts and others not material to the case, adjudged that the defendant was entitled to the decree prayed; but the Supreme Court of the State held otherwise and reversed the judgment; and, as there was no finding as to the value of the rents and profits of the premises, ordered a new trial if the plaintiff so elected. Upon the filing of the remittitur in the lower court, the plaintiff waived his privilege of a new trial, and the court thereupon, on the pleadings and previous findings, gave judgment for the plaintiff, which was affirmed by the Supreme Court of the State; and this judgment is brought here for review.

Messrs. W. W. Cope and S. M. Buck, for plaintiff in error.

Mr. Walter Van Dyke, for defendant in error.

Mr. Justice Field delivered the opinion of the court:

The system of pleading in civil cases in the courts of California permits an equitable defense to be set up in a special count, by way of cross complaint, in the answer to an action for the possession of lands. The cross complaint is in the nature of a bill in equity, and must contain its material allegations, disclosing a case which, if established, would entitle the defendant to a decree enjoining the further prosecution of the action, or directing that the title be conveyed to him. This equitable defense is therefore to be first considered, for, according to its disposition will the necessity exist for further proceedings in the action at law, in which the legal title of the parties will alone control. Quinby v. Conlan, 104 U. S., 420 | Bk. 26, L. ed., 800]; Estrada v. Murphy, 19 Cal., 248, 273; Arguello v Edinger, 10 Id., 150.

We do not think the claim of the defendant to the equitable relief he seeks can be sustained on the grounds stated in his answer or cross

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and distinct cause of action, on which a separate
application to cases in which the defendants are
and distinct suit might be maintained. It has no
sued jointly and as joint contractors.
the case by separate defenses to the same cause of
2. A separate controversy is not introduced into
action, although they may present different ques-
tions for determination.

complaint. To charge the holder of the legal | 3, 1875, refers only to suits where exists a separate title to land under a patent of the United States, as a trustee of another, and to compel him to transfer the title, the claimant must present such a case as will show that he himself was entitled [51] to the patent from the Government, and that, in consequence of erroneous rulings of the officers of the Land Department upon the law applicable to the facts found, it was refused to him. It is not sufficient to show that there may have been error in adjudging the title to the patentee. It must appear that by the law properly administered the title should have been awarded to the claimant. Smelting Co. v. Kemp, 104 U. S., 636, 647 [Bk. 26, L. ed., 875, 879]; Boggs v. Merced Mining Co., 14 Cal., 279, 363. It is

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3. A defendant cannot make an action severa} which a plaintiff has elected to make joint. Submitted Dec. 22, 1884. Decided Mar. 23, 1885. [No. 856.]

IN ERROR to the Circuit Court of the Unit

ed States for the Southern District of New

York.

the opinion of the court.
The history and facts of the case appear in

Mr. John L. Cadwalader, for plaintiff in

error.

Mr. Austin G. Fox, for defendant in error.

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

gan

therefore immaterial for the decision of this case
what our judgment may be upon the conclu-
sions of those officers as to the possession of the
patentee. It is plain that the defendant, Bo-
hall, did not bring himself within the provis-
ions of the preemption laws. Those laws are
intended for the benefit of persons making a
This is a writ of error for the review of an
settlement upon the public lands, followed by order of the Circuit Court remanding a case
residence and improvement and the erection of which had been removed from the Supreme
a dwelling thereon. This implies a residence Court of the State of New York under the Act of
both continuous and personal. No such con- March 3, 1875, ch. 137, 18 Stat. at L., 470. The
tinuous residence was shown on the part of Bo- suit was brought by Ide, the defendant in er-
hall. He was placed in possession of the prem-ror, a citizen of New York, against the Louis-
ises under the judgment of the state court in ville and Nashville Railroad Company, a Ken-
May, 1868; and it was necessary to prove that tucky corporation; the Lake Shore and Michi-
he occupied them continuously after filing his
declaratory statement. It was shown, how-land, Columbus and Cincinnati Railroad Com-
Southern Railroad Company, and the Cleve-
ever, that he resided elsewhere from July, pany, Ohio corporations; the New York Cen-
1869, to December, 1871, and from April, 1872, tral and Hudson River Railroad Company, a
to August, 1874. Though he claimed the land New York corporation, and the Boston and Al-
for six years he and his family resided else bany Railroad Company, the Boston and Maine
where during four of them, and no sufficient Railroad Company, and the Nashua and Wor-
excuse for such residence was offered. It is only cester Railroad Company, Massachusetts cor-
under special circumstances that residence away porations. The complaint alleged, in substance,
from the land is permissible. The settler may that the defendants, being all common carriers,
be excused for temporary absences caused by associated themselves together under the name
well founded apprehensions of violence, by sick- of the "White Line Central Transit Company,"
ness, by the presence of an epidemic, by judi- for the transportation jointly of goods from
cial compulsion, or by engagement in the mil-
itary or naval service. Except in such and like places on or near the Mississippi River to places
cases the requirement of a continuous residence from Columbus, Mississippi, to Dover and Man-
on or near the Atlantic coast, and among others
on the part of the settler is imperative.
ciated together the defendants received at Co-
chester, New Hampshire; that while so asso-
lumbus, Mississippi, from certain persons doing
business there, several lots of cotton which, in
consideration of certain freight to be paid, they
Manufacturing Company at Dover, and the
agreed to transport and deliver to the Cocheco
Amoskeag Manufacturing Company at Man-
chester, New Hampshire; that bills of lading
were issued by the defendants whereby they ac-

The alleged fraud of Dilla in obtaining possession under the alleged contract, if any such fraud existed, could have had no effect upon the defendant's residence after his restoration to the land in May, 1868.

As he could not maintain his equitable defense, the plaintiff was entitled to judgment upon his legal title as shown by his patent. Judgment affirmed.

True copy. Test.

James H. McKenney, Clerk, Sup. Court, U. s. knowledged the receipt of the cotton to be trans

ited-115 U. S., 413; 116 U. S., 50.

LOUISVILLE AND NASHVILLE RAIL-
ROAD COMPANY, Piff. in Err.,

v.

CHARLES W IDE..

(See 8. C., Reporter's ed., 52–57.)

Removal of causes-joint action against several
defendants-separate defenses.

ported over their line and delivered to the re-
spective consignees thereof; that the defendants
have failed to deliver the cotton, and that the
plaintiff is the assignee of all claims against
them on that account.

The Louisville and Nashville and the New
York Central and Hudson River Companies
were served with process and appeared in the
State Court. The Louisville and Nashville Com-
pany answered the complaint. In the answer
it admitted the corporate existence of the sev-

NOTE.-Removal of causes under Act of 1875; citizenship. See Del., etc., Co. v. Meyer, 100 Ú. S., XXV.,

1. The last clause of section 2 of the Act of March 593, note.

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eral defendants, and that they were each and
all common carriers. It denied that the defend-
ants had associated themselves together for the
transportation of goods jointly, or that they held
themselves out as common carriers engaged
jointly in the business of such transportation;
but it alleged that a number of corporations,
among which were the defendants, entered into
an agreement to carry on a fast freight line be-
tween cities in the eastern and western parts of
the country, and fixing uniform rates of trans-
portation and regulating the necessary incidents
to such business, which business was to be done
under the name of the " Central Transit Com-
pany," afterwards familiarly known as the
"White Line," and called in the complaint the
"White Line Central Transit Company." It
then set out the provisions of the agreement be-
tween the several corporations for carrying on
the line, showing the way in which the busi-
ness was to be done and the earnings and ex-
penses divided, "and that each company should
pay for any damage or loss occurring on its
road, and if such damage could not be located
it should be prorated between the companies
forming the route over which the property
would have passed to its destination, in the same
ratios as the freight moneys." It then averred
"that when goods were delivered to any one of
the said companies to be transported by said
fast freight line, bills of lading therefor were
to be issued in the name of The Central Transit
Company, White Line,' by an agent of such
Transit Company, who, in his representative
capacity, acted separately for each, and was
not authorized to act for such companies joint-
ly; and that in all such bills of lading so issued
it was expressly stipulated and agreed that in
case of any loss, detriment or damage done to
or sustained by the property therein receipted
for, that company should alone be held answer-
able therefor in whose actual custody the same
might be at the time of the happening thereof."
It then denied that the cotton sued for was ever
delivered to the line, or to either of the com-
panies composing the same, for transportation,
and averred that if any bills of lading were ever
issued it was done by a person who had no au-
thority for that purpose, either from the Louis-
ville and Nashville Company or any of the other
defendants. It also averred that no loss had
happened to the property while in its actual
custody, and that Ide, who brought the suit,
was not the real party in interest therein, but
that the alleged assignment to him was with-
out consideration, and made simply to vest the
right of action in the plaintiff, who was a citi-
zen of New York, and that the real parties in
interest were the Cocheco Company and the
Amoskeag Company.

iff, a citizen of the State of New York, and the
defendant, the Louisville and Nashville Rail-
road Company, your petitioner, a citizen of the
State of Kentucky, which can be fully deter-
mined as between them without the presence of
any of the other persons or bodies corporate
made parties to said suit." The Supreme Court
of the State accepted the petition and ordered
the removal of the suit, but the circuit court,
when the case got there, remanded it. This
writ of error was brought for a reversal of the
last order.

The petition for removal was filed under the
last clause of section 2 of the Act of 1875, which
is as follows:

"And when in any suit *** there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove said suit to the Circuit Court of the United States for the proper district.'

"

As we have already said at this Term in Ayres
v. Wiswall, 112 U. S., 192 [Bk. 28, L. ed., 695],
"the rule is now well established that this clause
in the section refers only to suits where there
exists a 'separate and distinct cause of action,
on which a separate and distinct suit might have
been brought and complete relief afforded as to
such cause of action, with all the parties on one
side of that controversy citizens of different
States from those on the other. To say the least,
the case must be one capable of separation into
parts, so that in one of the parts a controversy
will be presented with citizens of one or more
States on one side and citizens of different States
on the other, which can be fully determined
without the presence of the other parties to the
suit, as it has been begun.'
"" Hyde v. Ruble, 104
U. S., 407 [Bk. 26, L. ed., 823]; Fraser v. Jen-
nison, 106 U. S., 191 [Bk. 27, L. ed., 131].

In the present case all the defendants are sued jointly and as joint contractors. There is more than one contract set out in the complaint, and there is therefore more than one cause of action embraced in the suit; but all the contracts are alleged to be joint and binding on all the defendants, jointly and in the same right. There is no pretense of a separate cause of action in favor of the plaintiff and against the Louisville and Nashville Company alone. The answer of the company treats the several causes of action alike and makes the same defense to all. For the purposes of the present inquiry the case stands as it would if the complaint contained but a single cause of action. The claim of right to a removal is based entirely on the fact that the Louisville and Nashville Company, the petitioning defendant, has presented a separate deIt also appears from the statements in the pe- fense to the joint action by filing a separate antition for removal, that the New York Central swer tendering separate issues for trial. This, and Hudson River Company filed a separate an- it has been frequently decided, is not enough swer in the State Court, but that answer has not to introduce a separate controversy into the suit been copied into the transcript. The Louisville within the meaning of the statute. Hyde v. Ruand Nashville Company on filing its answer ble, supra; Ayres v. Wiswall, supra. Separate presented to the State Court a petition for the answers by the several defendants sued on joint removal of the suit to the Circuit Court of the causes of action may present different questions United States for the Southern District of New for determination, but they do not necessarily York, which was the proper district, on the divide the suit into separate controversies. ground" that there is in said suit a controversy defendant has no right to say that an action which is wholly between citizens of different shall be several which a plaintiff elects to make States, namely: a controversy between the plaint-joint. Smith v. Rines, 2 Sum., 348.

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A sepa

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Mr. Charles E. Perkins, for defendant in error.

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

rate defense may defeat a joint recovery, but it | Swayne, Lewis E. Stanton and Edward W. Bell,
cannot deprive a plaintiff of his right to prose- for plaintiffs in error.
cute his own suit to final determination in his
own way. The cause of action is the subject-
matter of the controversy, and that is for all the
purposes of the suit whatever the plaintiff de-
clares it to be in his pleadings. Here, it is certain
joint contracts, entered into by all the defendants
for the transportation of property. On the one
side of the controversy upon that cause of action
is the plaintiff, and on the other all the defend-
ants. The separate defenses of the defendants
relate only to their respective interests in the
one controversy. The controversy is the case,
and the case is not divisible.

This is a writ of error for the review of an order of the Circuit Court remanding a suit to a State Court. The suit was brought in the Superior Court of the County of Hartford, Connecticut, by George E. Ingraham, the defendant in error, a citizen of Connecticut, against N. D. Putnam and Henry Earle, citizens of New York, and W. G. Morgan, a citizen of Connecticut, as partners in business under the ance claimed to be due from the partnership on an account for money lent, paid out and expended, and upon a note of $5,000, made by W. G. Morgan to the order of Putnam, Earle & Co. and by the firm indorsed to Ingraham. The complaint contained simply the common counts, but a bill of particulars subsequently filed disclosed the true nature of the claim to be the note, and an account for the purchase and sale of stocks beginning August 17, 1883, and ending February 29, 1884.

It is said, however, that by the New York Code of Civil Procedure, section 1204, "judg-name of Putnam, Earle & Co., to recover a balment may be given for or against one or more plaintiffs, and for or against one or more defendants," and under this it has been held that when several are sued upon a joint contract, and it appears that only a portion are bound, the plaintiff may recover against those who are actually liable. The same rule undoubtedly prevails in many other States, but this does not make a joint contract several, nor divide a joint suit into separate parts. It may expedite judicial proceedings and save costs, but it does not change the form of the controversy, that is to [57] say, the case. The plaintiff can still sue to recover from all, though he may be able to succeed only as to a part.

The order remanding the case is affirmed.
Mr. Justice Blatchford took no part in the
decision of this case.

Dissenting: Mr. Justice Harlan.
True copy. Test:

The defendants, Putnam and Earle, filed a separate answer, which contained: 1. A general denial of all the allegations in the complaint; 2. An averment as to the account, that the alleged loans were all made to the defendant Morgan for his individual and private use, and not to the firm; 3. An averment as to the note, that it was given for money loaned to W. G. Morgan alone for his individual use, and not to the firm, and that it was indorsed by Morgan in the name

James H. McKenney, Clerk, Sup. Court, U. S. of the firm by collusion between him and In

Cited-114 U. S., 59, 62; 115 U. S., 42, 61, 259.

N. D. PUTNAM ET AL., Piffs. in Err.,

v.

GEORGE E. INGRAHAM.
(See S. C., Reporter's ed., 57–60.)

Removal of causes-joint action against several
defendants separate defenses.

1. The last clause of section 2 of the Act of March 3, 1875, has no application to cases in which the defendants are sued jointly and as joint contractors. The preceding case of The Louisville and Nashville R. R. Co.v. Ide, ante, 63, affirmed.

2. A separate controversy is not introduced into the case by separate defenses to the same cause of

action.

3. The fact that one of the defendants is in default is unimportant.

[No. 1246.] Submitted Mar. 2, 1885. Decided Mar. 23, 1885. IN ERROR to the Circuit Court of the United

States for the District of Connecticut. The history and facts of the case appear in the opinion of the court. See, also, the ing case of L. & N. R. R. Co. v. Ide.

Messrs. Herbert E. Dickson,

graham, and with intent to defraud Putnam
and Earle; and, 4. A statement that the part-
nership of Putnam, Earle & Co. was not formed
until January 2, 1884, and that all the transac-
tions in the bill of particulars before that date
took place, if at all, between the plaintiff and
William G. Morgan, who, during the years
1882 and 1883, was only the agent of Putnam
and Earle and not a partner with them, and
that as to none of the items in the bill dated in
the year 1883 were they under any joint liabil-
ity with Morgan as partners.

Morgan has never answered the complaint,
and as to him the case stands on default. After
filing their answer the defendants Putnam and
Earle, presented a petition to the Superior Court
for the removal of the suit to the Circuit Court
of the United States for the District of Con-
necticut. The material part of this petition,
aside from a statement of the citizenship of the
parties, is as follows:

"And your petitioners further say, that in
the suit above mentioned there is a controversy
which is wholly between citizens of different
States, and which can be fully determined be-

tween them, to wit: a controversy between the
present petitioners, N. D. Putnam and Henry
preced-William G. Morgan, as by the pleadings in said
Earle, and the said George E. Ingraham and
Wager
cause will more fully appear."

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Upon the presentation of this petition the Superior Court declined to enter an order for the removal of the cause. Thereupon the petitioners entered a copy of the record in the Circuit

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Court of the United States. This being done,
the plaintiff Ingraham moved that court to re-
mand the suit, and the motion was granted.
To reverse an order to that effect, this writ of
error was brought.

We are unable to distinguish this case mate-
rially from that of The Louisville and Nashville
R. R. Co. v. Ide [ante, 63], just decided. The suit
is brought against all the defendants jointly to
recover upon what are alleged to be their joint
The defendants,

promises and undertakinonnecticut, have fled

a separate answer in which they deny their lia-
bility altogether, and claim besides, that if lia-
ble at all on part of the account sued for, it is
not jointly with the defendant Morgan. This
is their separate defense to the joint suit which
Ingraham has elected to bring against them and
Morgan upon what he claims to be the joint
contracts of all the defendants.

In Connecticut, as in New York, "judgment
may be given for or against one or more of sev-
eral plaintiffs, and for or against one or more
of several defendants," and in addition to this
the court may, in Connecticut, "determine the
ultimate rights of the parties on each side as
between themselves, and grant to the defend.
ant any affirmative relief he may be entitled to."
But this, as we have said in the case just de-
cided, does not make a joint contract several,
nor divide a joint suit into separate parts. The
suit is still one and indivisible for the purposes
of removal.

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corporated company of that State and a citizen of
has been purchased at a judicial sale as the property
another State to compel the transfer of stock, which
of such citizen by the plaintiff, on the books of the
company, is not removable into the Federal Courts.
The company is a necessary party although the cit-
izen of the other State raises a separate issue as to
the validity of the proceedings under which said
sale was had.
[No. 1194.]

Submitted Mar. 2, 1885. Decided Mar. 23, 1885.
Court of the Unit

APPEAL from the Circuit Court of tot mis

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ion of the court:
Mr. Chief Justice Waite delivered the opin-

cuit Court of the United States remanding a
This is an appeal from an order of the Cir-
suit to the Circuit Court of the City of St. Louis,
Missouri, from which it had been removed up-
on a petition filed under the Act of March 3,
1975, ch. 137, 18 Stat. at L., 470. The suit was
in equity and brought by William C. Wilson,
the appellee, a citizen of Missouri, against the
St. Louis and San Francisco Railway Company,
a Missouri Corporation, and Jesse Seligman and
James Seligman, citizens of New York, to com-
books certain shares of its capital stock stand-
pel the Company to transfer to Wilson on its
ing in the name of the Seligmans, and to issue
to him certificates therefor. The petition states
that Wilson purchased the stock at a sale under
favor and against the Seligmans, and that on
an execution issued upon a judgment in his
the 19th of December, 1883, he exhibited to the
Company his certificate of purchase and de-
manded that the Company cause his name "to
be entered on the stock books of said Corpora-
tion as the owner of said shares of said capital
stock, *** and further duly notified said Cor-
As the petitioning defendants have asked no thereafter be declared and payable to and on
poration to pay to him all dividends that might
affirmative relief either against the plaintiff or said stock;" but that the Company refused so
their co-defendant, no question can arise under to do. The prayer is for a transfer of the stock,
the rule of practice in Connecticut which al- the cancellation of the certificates to the Selig
lows the court to determine the ultimate rights mans, the issue of new certificates and payment
of the parties on each side as between them- of dividends to Wilson, and an injunction pro-
selves. In the present case, the only contro-hibiting the Seligmans from acting as stock-
versy is as to the right of the plaintiff to recover holders.
against the defendants.

The fact that Morgan has not answered but is in default is unimportant. The suit is still on joint causes of action, and the plaintiff, if he sustains the allegations of his complaint at the trial, will be entitled to a joint judgment against all the defendants. The default places the parties in no different position with reference to a removal than they would occupy if Morgan had answered and set up an entirely different defense from that of the other defendants. A separate controversy is not introduced into the case by separate defenses to the same cause of action.

The order to remand is affirmed.

The Company and the Seligmans filed separate answers, but setting up substantially the James H. McKenney, Clerk, Sup. Court, U. s. same defense, to wit: that the stock, though

True copy. Test:

Cited-115 U. S., 61, 259.

ST. LOUIS AND SAN FRANCISCO RAIL-
WAY COMPANY ET AL., Appts.,

v.

WILLIAM C. WILSON.

(See S. C., Reporter's ed., 60-62.)

Removal of causes-action against a citizen of
the same State and one of another State, not re-
movable-parties.

standing in the names of the Seligmans, did not
in fact belong to them when the execution was
levied, or when the sale to Wilson was made,
because they had long before that time sold and
transferred their certificates to other parties for
value, who were the real holders and owners of
the stock, though not transferred to them on
the books. The Seligmans in their answer de-
ny the validity of the judgment against them,
for the reason that it was rendered in a suit to
which they were not parties.

The petition for removal was presented by

NOTE.-Removal of causes under Act of 1875; citt zenship. See Meyer v. Delaware, etc., Co., 100 U.S.,

An action brought in a State Court against an in- bk. 25, 593, note.

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