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§ 49. Partnerships. There is no presumption that the members of a partnership, whether general or limited, are citizens of the State where it was organized; and the citizenship of all its members must be considered when a removal is sought in a suit to which it is a party, even when the State law authorizes them to sue and be sued in the firm name.1 It was so held in a State where a partnership was considered to be a legal entity, and as to limited partnerships organized under the Michigan,3 New York, and Pennsylvania statutes. Where a copartnership was sued alone by its firm name under section 3468 of the Iowa Code, authorizing a suit to be brought either against a partnership or its members, or both, the members of the firm not being named in the plaintiff's petition, which alleged the defendant to be a corporation, it was held, that the suit could not be removed by the members of the firm, who were citizens of a different State from that of the plaintiff.6

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Where there is a

§ 50. Under grants of different States. controversy between citizens of the same State claiming land under grants of different States, it seems that the District Court of the United States has jurisdiction irrespective of the amount involved.1 Where one party claimed land under a grant of New Hampshire made when Vermont was a part of that State, and the other under a grant from Vermont made after their

§ 49. 1 Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 44 L. ed. 842; H. L. Bruett & Co. v. F. C. Austin Drainage Excavator Co., 174 Fed. 668, under Iowa statute; Empire Rice Mill Co. v. K. & E. Neumond, 199 Fed. 800; Columbia Digger Co. v. Rector, 215 Fed. 618.

2 Empire Rice Mill Co. v. K. & E. Neumond, 199 Fed. 800, Louisiana state. As to the Ohio statute, see Irvine v. Church, 227 Fed. 252. 3 Fred Macey Co. v. Macey, 135 Fed. 725, 68 C. C. A. 363.

4 Jewish Colonization Ass'n V. Solomon & Germanski, 125 Fed. 994. 5 Great Southern Fire Proof Hotel

Co. v. Jones, 177 U. S. 449, 44 L. ed. 842; reversing, 86 Fed. 370, 30 C. C. A. 108; and over-ruling: Bushnell v. Park Bros. & Co., 46 Fed. 209, Carnegie, Phipps & Co. v. Hulbert, 53 Fed. 10, 3 C. C. A. 391, 10 U. S. App. 454; Andrews Bros. Co. v. Youngstown Coke Co., C. C. A., 86 Fed. 585. In all these cases the partnership was organized under Pa. Act of June 2, 1874 (P. L. 271).

6 Ralya Market Co. v. Armour & Co., 102 Fed. 530.

$ 50. 1 See Holt on Concurrent Jurisdiction, § 60; In re Hohorst, 150 U. S. 653, 660, 37 L. ed. 1211, 1214; In re Keasby & Mattison Co.,

separation, it was held that the controversy arose between per sons claiming lands under grants of different States. Where a controversy is founded upon conflicting grants of different States, the Federal courts have jurisdiction irrespective of the equitable title of the parties before either grant. It was held: that the Federal courts did not take jurisdiction of a case between citizens of the same States, where the defendant claimed the land in dispute under a grant by the State of North Carolina, while the plaintiff claimed under a grant by the State of Tennessee, in which, however, the State of Tennessee did not act by virtue. of her sovereignty as a State, but only by virtue of a power delegated by North Carolina to perfect titles, which, before the separation of the States were inaccurate and imperfect. Und the former Judiciary Act, it was held that a party claiming land under a grant from a State where the suit was pending could not remove the case because the other party claimed under a grant from another State.5

In a suit between citizens of the same State claiming land under grants of different States, a party who resides in another district may be there served.

Where, after the decision in such a suit between citizens of different States, the Supreme Court of the United States in a suit between the States had decided to the contrary, a bill of review of the decree in the former suit was dismissed, when filed by a speculative purchaser from the parties who had been unsuccessful against a person who had for a valuable consideration bought the land from the successful party. And it was later held that the former decision was res adjudicata against a suit in the District Court of the State where the Supreme Court had held that the land was located.8

160 U. S. 221, 230, 40 L. ed. 402, 405.

2 Pawlet v. Clark, 9 Cranch, 292, 3 L. ed. 735; Colson v. Lewis, 2 Wheat. 377, 4 L. ed. 266.

3 Colson v. Lewis, 2 Wheat. 377, 379, 4 L. ed. 266.

4 Thompson v. Kendrick's Lessee, 6 Tenn. (5 Hayw.) 113.

5 Shepherd's Heirs v. Young, 1 T. B. Monroe (17 Ky.) 203.

6 Ferguson v. Babcock Lumber and Land Co., C. C. A., 252 Fed. 705; see infra, § 166.

7 Hopkins v. Hebard, 235 U. S.

287.

8 Ferguson V. Babcock Lumber and Land Co., C. C. A., 252 Fed. 705.

§ 51. Ancillary jurisdiction. After a Federal court has acquired jurisdiction, through the existence of the necessary difference of citizenship between the original parties, ancillary proceedings may be therein instituted, although parties upon the different sides of the controversy are citizens of the same State and there is no other ground of Federal jurisdiction. The question is not whether the proceeding is supplemental and ancillary, or is independent and original, in the nomenclature of the rules of equity pleading, but whether it is supplementary and ancillary, or is to be considered entirely new and original, in the sense which the courts have sanctioned in establishing the line which divides the jurisdiction of the Federal courts from that of the State courts.2 Thus, not only can a bill of revivor or a supplemental bill, or a cross bill, be maintained in a Federal court which had jurisdiction of the original litigation; but so can a bill to enjoin the prosecution of proceedings therein or elsewhere at law or in equity, or for set-off, or a bill to re

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$51. 1 Dunn v. Clarke, 8 Pet. 1, 8 L. ed. 845; Clarke v. Mathewson, 12 Pet. 163, L. ed. 1041; Freeman V. Howe, 24 How. 450, 460, 16 L. ed. 749, 752; Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. ed. 886; Jones v. Andrews, 10 Wall. 327, 19 L. ed. 935; Krippendorf v. Hyde, 110 U. S. 276, 28 L. ed. 145; Pacific R. of Mo. v. Mo. P. R. Co., 111 U. S. 505, 522, 28 L. ed. 498, 504; Dewey v. W. F. G. C. Co., 123 U. S. 329, 31 L. ed. 179; Gumbel v. Pitkin, 124 U. S. 131, 31 L. ed. 374; Seymour v. Phillips & C. Const. Co., 7 Biss. 460. But see Christmas v. Russell, 14 Wall. 69, 20 L. ed. 762.

2 Miller, J., in Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633, 17 L. ed. 886, 895. See Hume v. City of New York, C. C. A., 255 Fed. 488.

3 Clarke v. Mathewson, 12 Pet. 164, 9 L. ed. 1041.

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4 Morgan's La. & T. R. & St. Co. v. Texas Cent. Ry. Co., 137 U. S. 171, 34 L. ed. 625. See infra, § 201; Central Trust Co. v. Bridges, 57 Fed. 753.

5 Sherman Nat. Bank v. Shubert Theatrical Co., C. C. A., 247 Fed. 256; Venner v. Graves, C. C. A., 255 Fed. 686.

6 St. Louis-San Francisco Ry. Co. v. McElvain, 253 Fed. 123; see Venner v. Graves, 255 Fed. 686.

7 Bradshaw v. Miners' Bank, C. C. A., 81 Fed. 902; Krippendorf v. Hyde, 110 U. S. 276, 28 L. ed. 145; Leigh v. Kewanee Mfg. Co., 127 Fed. 990; South Penn Oil Co. v. Calf Creek Oil & Gas Co., 140 Fed. 507; Campbell et al. v. Golden Cycle Min. Co., 141 Fed. 610; Loy v. Alston, C. C. A., 172 Fed. 90. 8 Loy v. Alston, C. C. A., 172 Fed. 90.

strain or regulate, or to set aside, 10 or to modify,11 or to obtain a judicial construction, 12 or to enforce by injunction,13 scire facias,14 levy of a tax,15 or otherwise, 16 or to protect 17 a judgment

9 Dunn v. Clark, 8 Pet. 1, 8 L. ed, 845; Freeman v. Howe, 24 How. 450, 460, 16 L. ed. 749, 752; Jones v. Andrews, 10 Wall. 327, 19 L. ed. 935; Krippendorf v. Hyde, 110 U., S. 276, 28 L. ed. 145; Johnson v. Christian, 125 U. S. 642, 31 L. ed. 820; Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A., 160 Fed. 355; Loy v. Alston, C. C. A., 172 Fed.

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10 Pacific R. of Mo. v. Mo. P. R. Co., 111 U. S. 505, 522, 28 L. ed. 498, 504; Foster v. Mansfield, C. & L. M. R. Co., 36 Fed. 627; s. c., 146 U. S. 88, 36 L. ed. 899; Carey v. Houston & T. C. Ry. Co., 161 U. S. 115, 40 L. ed. 638; Maitland v. Gibson, 79 Fed. 136; Lacanagrues v. Chapins, 144 U. S. 119, 36 L. ed. 368; Broadis v. Broadis, 86 Fed. 951; Ladd v. West, 55 Fed. 353; Hill v. Kuhlman, C. C. A., 87 Fed. 498; McDonald v. Seligmans, 81 Fed. 753; Richardson v. Loree, C. C. A., 94 Fed. 375; O'Connor v. O'Connor, 146 Fed. 994; Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A., 160 Fed. 355; Loy v. Alston, C. C. A., 172 Fed. 90. Where an action was brought upon the award of an arbitrator, it was held that a suit to set aside the award for fraud was ancillary to the same, but that the court could not thus obtain jurisdiction to bring in a stranger to the former action, who was a citizen of the same State as the complainant, for the purpose of impeaching an award in the latter's favor, made at the same arbitration, which was separate and distinct from that between the other parties.

Hecht v. Youghiogheny & Lehigh Coal Co., 162 Fed. 812.

11 Thompson v. Schenectady Ry. Co., 124 Fed. 274.

12 Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. ed. 886; Jenks v. Brewster, 96 Fed. 625; Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A., 160 Fed. 355; Loy v. Alston, C. C. A., 172 Fed. 90.

13 Railroad Co. v. Chamberlain, 6 Wall. 748, 18 L. ed. 859; Root v. Woolworth, 150 U. S. 401, 37 L. ed. 1123; Riverdale Cotton Mills v. Ala. & Ga. Mfg. Co., 198 U. S. 188, 49 L. ed. 1008; Wabash Railroad Co. v. Adelbert College, 208 U. S. 38, 53, 52 L. ed. 379, 385. But see Alabama & G. Mfg. Co. v. Riverdale Cotton Mills, C. C. A., 127 Fed. 497. 14 Pullman's P. C. Co. v. Washburn, 66 Fed. 790; s. c. in C. C. A., 76 Fed. 1005; Lafayette County v. Wonderly, C. C. A., 92 Fed. 313.

15 Preston v. Calloway, C. C. A., 183 Fed. 19; Maitland v. Gibson, 79 Fed. 136; Brun v. Mann, C. C. A., 12 L.R.A. (N.S.) 154, 151 Fed. 145, 149.

16 Cushman v. Warren-Scharf Asphalt Paving Co., C. C. A., 220 Fed. 857, (a suit to enforce payment of an assessment levied pursuant to a writ of mandamus awarded by the Federal Court). Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A., 160 Fed. 355; Loy v. Alston, C. C. A., 172 Fed. 90. But see Central Trust Co. v. Grantham, 83 Fed. 540. Where creditors brought a class-suit to administer in equity the amounts due the corporation from stockholders within the territorial juris

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or decree of, or a bond 18 given to, or an attachment,19 or execution,20 issued by, a Federal court; even where other incidental relief is prayed,21 and irrespective of the citizenship of the parties. So can a bill or petition for the appointment of a receiver in aid of a pending action at law; for example, one of ejectment or, it seems, when authorized by the State practice, in aid of a judg ment at law; 23 a bill by a stranger to a suit to enjoin a sale by the marshal of property which he claims to be his; 24 a bill to determine the manner in which the proceeds of a judgment or decree shall be distributed, at least when they have been paid into court,25 and a bill in the nature of an interpleader.26

In such a suit the fact that a new party is made plaintiff or defendant whose citizenship would have defeated an original bill by the same plaintiff is no objection to the jurisdiction.27 A bill to enjoin proceedings in a District Court of the United States was there maintained although an indispensable party defendant was one, a suit against whom the Federal court had previously remanded because of the insufficiency of the matter

diction, it was held that, ancillary to the jurisdiction which was thus obtained, the court might in an ancillary bill enter a decree against a stockholder whose liability was less than $2,000. Robertson v. Conway, C. C. A., 188 Fed. 570.

17 Ferguson v. Omaha & S. W. R. Co., C. C. A., 227 Fed. 513, (a bill to protect the purchaser at a foreclosure sale). Lee Line Steamers v. Robinson, C. C. A., 232 Fed. 417, (a suit to set aside the assignment of a judgment); Ross v. Miller, C. C. A., 252 Fed. 697, (to set aside a release of a judg ment).

18 Lamb v. Ewing, 56 Fed. 269; Leslie v. Brown, 95 Fed. 171.

19 Lant v. Manley, C. C. A., 75 Fed. 627; Davis v. Martin, C. C. A., 113 Fed. 6; Hatcher v. Hendrie & Bolthoff Mfg. & Sy. Co., C. C. A., 113 Fed. 6.

20 Lant v. Manley, C. C. A., 75 Fed. 627; Davis v. Martin, C. C. A., 113 Fed. 6.

21 Hill v. Kuhlman, C. C. A., 87 Fed. 498.

22 Ulman v. Clark, 75 Fed. 868. 28 See Mutual Res. Fund Life Ass'n v. Phelps, 190 U. S. 147, 47 L. ed. 987.

24 Davis v. Martin, C. C. A., 113. Fed. 6.

25 Myers v. Luzerne County, 124 Fed. 436.

26 Sherman Nat. Bank v. Shubert Theatrical Co., 247 Fed. 256.

27 Ferguson v. Omaha & S. W. R. Co., C. C. A., 227 Fed. 513; St. Louis San Francisco Ry. Co. v. McElvain, 253 Fed. 123; Venner v. Pennsylvania Steel Co., 250 Fed. 292; Sherman Nat. Bank v. Shubert Theatrical Co., C. C. A., 247 Fed. 256.

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