its remaining property, not so taken. It may have a third issue, and judging from the course of the argument, it has a third issue, still more important to it than either of the others, to wit: the right of the city to open a street at all across its depot grounds. Now this controversy involving these three issues, is a distinct [23] controversy between the company and the city. It may be settled in the same trial with the other appeals, and by a single jury; but the controversy is a distinct and separate one, and is capable of being tried distinctly and separately from the others. If the state circuit court had equity powers, it might direct a separate issue for the trial of this controversy by itself. It might try the other appeals without a jury (the parties waiving a jury), and try this controversy by a jury.

[24]

brought in the courts of the United States as
well as in the courts of the States; but I cannot
believe that, if the charters had given jurisdic-
tion to the courts of the United States in only
a limited class of actions, and had provide?
that in all others the suits must be brought in
the courts of the proper State, the Act of 1875
would have extended the jurisdiction of the
courts of the United States to all suits by or
against such corporations when the value of
the matter in dispute exceeded five hundred
dollars.

The Acts of incorporation made no pro-
vision for the removal to the courts of the
United States of suits begun in a state court.
The Act of July 27, 1868, ch. 255, sec. 2, 15
Stat. at L., 227, now sec. 640 of the Revised
Statutes, did, however, give authority for that
If this view of the subject is correct, we see purpose in suits brought against the company
no difficulty in removing the controversy be- in a state court "upon the petition of such de-
tween the City of Kansas and the railway com- fendant, verified by oath, stating that such de-
pany for trial in the Circuit Court of the Unit- fendant has a defense arising under or by vir-
ed States. The proceedings for widening the tue of the Constitution or of any treaty or law
street, pending in the state court, may have to of the United States." If all suits by or
await the decision of the case in the federal against, and all defenses by, a federal cor-
court; and the result of those proceedings may poration necessarily arise under the laws of the
be materially affected by the decision of that United States "because the charter of incor-
case; but that consideration does not affect the poration not only creates it, but gives it every
separate and distinct character of the contro- faculty which it possesses," why require the
versy between the city and the railway company, corporation, when asking for a removal, to
although it might raise a question of proper cause an oath to be filed with its petition that
parties in a pure chancery proceeding as be- it has a defense in the suit which arises under
tween the city and the company. This con- the Constitution or laws? If, "because the
troversy is to all intents and purposes "a suit." power to acquire rights of any description, to
The indirect effect upon the general proceed-transact business of any description, to make
ings for widening the street which would en-
sue in case the federal court should determine
that the City of Kansas had no right to widen
the street in the company's depot grounds, or
that the valuation of its property was much too
small, or the assessment for benefits against it
was much too large, furnishes no good reason
for depriving the company of its right to re-
move its suit into a United States court. We
think that the case was removable to that
court under the Act of March 3d, 1875.

This disposes of all the cases now before us, and renders it unnecessary to inquire whether the allegations in the several petitions of removal were, or were not, sufficient to bring the cases within the 640th section of the Revised Statutes, or whether this section still remains in force.

The judgments are reversed in all the cases, and the causes will be remanded, with instructions to enter judgment in accordance with this opinion.

Mr. Chief Justice Waite, dissenting:

I am unable to agree to these judgments. In my opinion Congress did not intend to give the words "arising under the Constitution or laws of the United States," in the Act of 1875, the broad meaning they have when used by Chief Justice Marshall in the argument of the opinion in Osborn v. Bank. I do not doubt the power of Congress to authorize suits by or against federal corporations to be brought in the courts of the United States. That was decided in Osborn's Case, and with it I have no fault to find. Neither do I doubt that Congress did, in the charters under which these corporations exist, authorize suits by or against them to be

contracts of any description, to sue on those
contracts, is given and measured by its charter,
and that charter a law of the United States,'
[25]
every suit by or against, and every defense to
such a suit by, a federal corporation must arise
under the laws of the United States, why re-
quire it to set forth in its petition for removal
that its defense does arise under such a law?
If such a corporation cannot "have a case
which does not arise literally, as well as sub-
stantially, under the law," what the necessity
for saying more than that it is such a corpora-
tion?

The Act of 1868 (sec. 640) related specifically to this class of corporations and this class of suits and it shows distinctly that the words "arising under the laws of the United States" were there used in a restricted sense. I see no evidence of any intention by Congress to use them in any other sense in the Act of 1875, when applied to the same kind of suits and to the same kind of corporations.

I am authorized to say that Mr. Justice Mil-
ler unites with me in this dissent.
True copy. Test:

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

[56])

[57]

[58]

[59]

[60]

ment, which should protect it.
replication to that answer.

There was a

This case falls distinctly within a series of
rulings made by this court. Blake v. McKim,
Then Crump filed in the Circuit Court an 103U.S.,336 [Bk. 26, L. ed. 563]; Hyde v. Ruble,
amended bill, setting forth that the transaction 104 Id., 407 [Bk. 27, L. ed. 823]; Winchester v.
between Wilson and Thurber was for the fraud- Loud, 108 Id., 130 [Bk. 27, L. ed. 677]; Shain-
ulent purpose of protecting the stock for Wil-wald v. Lewis, Id., 158 [Bk. 28, L. ed, 691];
son, and that the certificates were held in
secret trust by Thurber for Wilson. Thurber
answered that amended bill, denying its al-
legations. To that answer there was a rep-
lication.

Proofs were taken, and, on a hearing, a decree was made dismissing the bill of Crump, and adjudging that Thurber was the true owner of the 250 shares, and was entitled to have the certificates issued to Wilson therefor canceled, and other certificates issued in lieu thereof, on his application; and it was ordered that the corporation cancel the certificates, and issue or deliver to Thurber, or his order, such new certificates, and that Thurber and the corporation recover of Crump their costs. Wilson had never appeared or answered. Crump has appealed to this court.

Ayres v. Wiswall, 112 Id., 187 [Bk. 28, L. ed.
693]; Hancock v. Holbrook, Id., 229 [Bk. 28 L. [61]
ed. 714]; Thayer v. Life Association, Id., 717
Bk. 28, L. ed 864]; R. R. Co. v. Mills, 113 Id.,
249 [Bk 28, L. ed. 949]; Sully v. Drennan,
Id., 287 [Ba. 28, L. ed. 1007]; R. R. Co. v. Ide,
114 Id., 52 [ante, 63]; R. R. Co. v. Wilson, Id.,
60 [ante, 66]; Putnam v. Ingraham, Id., 57;
[ante, 65]; Firie v. Tvedt [post, 331].

The decree of the Circuit Court is reversed, and
the case is remanded to that court, with a direc
tion to remand it to the State Court, for want of
jurisdiction, with costs to Crump against Thur-
ber, in the Circuit Court.
True copy. Test:

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

ANDREW STEWART ET AL., Partners as
STEWART BROTHERS & CO., Appts.,

V.

JAMES H. DUNHAM ET AL., Partners as
DUNHAM, BUCKLEY & Co.; EDWIN BATES
ET AL.,Partners as EDWIN BATES & CO.ET AL.
(See S. C., Reporter's ed., 61–67.)

Removal of causes-introduction of new par-
ties subsequent to removal-fraud-transfer
to defraud creditors.

1. After a cause has been properly removed, the
introduction of new parties as co-complainants
cannot oust the jurisdiction of the court, already
lawfully acquired.

2. Where a bill has been filed on behalf of the complainants and all other creditors who may come in, the court, in exercising jurisdiction between the parties, may incidentally decree in favor of all other creditors who come in under the bill.

3. An appeal from a decree adjudging separate sums to various appellees will be dismissed as to than $5,000.

It is assigned for error, that the Circuit Court
did not have jurisdiction of this cause, under § 2
of the Act of March 3, 1875 (18 Stat. at L., 470),
and ought to have remanded it to the state
court. This objection is well taken. It is true
that there is, in the suit, a controversy between
Crump and Thurber, but it is a controversy to
which the corporation is an indispensable
party. Crump brought the controversy into
court as one between himself on one side, and
Wilson and the corporation on the other side;
and throughout Crump maintained that Thur-
ber had no right to take the place of Wilson,
because the transactions between Wilson and
Thurber gave Thurber no greater right than
Wilson had. The controversy which Crump
asked to have adjudicated was one in which he
should be declared to be the owner of the
shares, and in which, to give him the fruition
of such decree, and enable him to stand as the
legal owner of the shares and be recognized as
such on the books of the corporation, there any appellee in whose favor the decree is for less
should be decree ordering the corporation to
cancel on its books the evidence of the owner.
ship by Wilson, and to issue to Crump certifi-
cates for the shares. The jurisdiction of the
Circuit Court must be determined, for the pur-
poses of this case, by the status of the parties,
and the nature of the relief which had been
asked by the plaintiff at the time of the appli-
cation for removal. If the decree of the Circuit
Court had been in favor of Crump, it would
have enforced a right in favor of a citizen of
Kentucky against a corporation of Kentucky
That corporation could not have removed the
suit, by showing that a citizen of New York
was the other claimant of the stock. The event
of the suit, a decree in favor of Thurber, on the
merits, against Crump and the corporation, is
not a proper test of the jurisdiction. If Thur-
ber had brought the suit originally in the state
court, against Crump and the corporation, it
could have been removed; or he might have
brought it originally against them in the Circuit
Court. But, in the present decree, Crump's
bill is dismissed on the merits, and of course
be is adjudged to have no rights against the
corporation, and costs are decreed against him
in favor of the corporation.

3. The conveyance by a debtor in failing circum-
stances, of his property, in trust, to secure certain
of his creditors, though void, does not affect the
validity of a subsequent sale to such creditors, made
in good faith to pay an actual debt.
his property to certain of his creditors sustained,
the evidence of fraud being held insufficient by this
court.
[No. 1240.]

4. The sale by a debtor in failing circumstances,of

Dismissed Dec. 8, 1884; Motion to rescind dis
missal argued Jan. 29, 1885; Rescinded Feb.
2, 1885; Submitted Apr. 20, 1885. Decided
May, 4, 1885.

APPEAL from the Circuit Court of the Unit-
ed States for the Southern District of
Mississippi.

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

On December 8, 1884, this appeal was dis-
missed, the appellants having failed to perfect
their appeal by filing a bond or making a de-
posit to cover costs in this court. A motion to
rescind the order of dismissal was granted Feb-
ruary 2, 1885.

Mr. T. C. Catchings, for appellants.
Messrs. John F. Hanna and James M.
Johnson, for appellees.

[61]

[62]

Mr. Justice Matthews delivered the opinion | ($16, 250.77). It appears to the court that the
of the court:

defendant John W. Broughton is insolvent, and
The appellees, who composed the firms of without property or means, and that the de-
Dunham, Buckley & Co., who were citizens of fendants Stewart Bros. & Co., had in their
New York, and of Edwin Bates & Co., who were hands and possession, at the time of filing the
cititizens of New York and South Carolina, filed bill of complaint in this cause, and still have,
their bill in equity, on July 14,1881, in the Chan- property, assets, and money, being the same
cery Court of Jefferson County, Mississippi, frauduently transferred and conveyed to them
against John W. Broughton, and Andrew Stew-by the defendant John W. Broughton, as afore-
art, Andrew D. Gwynne, and P. H. Haley,com-
posing the firm of Stewart Bros. & Co., and
others, all of whom were citizens either of
Mississippi or of Louisiana.

50

said, and the proceeds of the same, amounting
to a sum largely in excess of the said sum of
$16,250.77, due complainants as aforesaid. It
is, therefore, ordered, adjudged and decreed,
On September 16, 1881, the complainants that the defendants John W. Broughton and
filed a petition for the removal of the cause from Andrew Stewart, Andrew D. Gwynne, and P.
the state court to the Circuit Court of the H. Haley, composing the firm of Stewart Bros.
United States for that district, on the ground of & Co., do pay to the complainants the above-
citizenship, the amount in controversy being in mentioned sums respectively due them, with
excess of five hundred dollars in value, and interest thereon at the rate of six (6) per cent
presented a bond in conformity with the pro- per annum from this date until paid, that is to
visions of law. This was denied, notwith- say: To Dunham, Buckley & Co., ten thou-
standing which a certified transcript of the pro- sand two hundred and twenty-two dollars
ceedings in the cause was filed in the Circuit | ($10,222.50); to Edwin Bates & Co., four thou-
Court on November 3, 1881, and that court sand three hundred and ninety-one dollars
proceeded thereon to final decree.
($4,391.08); to Katz & Barnett, nine hundred
The complainants in the bill were creditors and thirty dollars ($930.82); and to John I.
severally of Broughton, and its object and Adams & Co., seven hundred and six dol-
prayer were to set aside a conveyance of a stock lars ($706.37); for which amounts and costs
of merchandise, made by him to the defendants executions in favor of said creditors respective-
Stewart Bros. & Co., alleged to be fraudulent ly may issue as at law." The appeal is from
as against his creditors, and was filed on behalf this decree.
of the complainants and all other creditors who The appellants assign as error, that the court
might come in and share the costs of the litiga-proceeded to decree, after admitting Katz &
tion.

After the cause was removed into the Circuit Court, the bill was amended by permitting Sigmond Katz, Jacob Katz, Nathaniel Barnett, and Selvia Barnett, partners as Katz & Barnett, and John I. Adams and W. H. Renaud, composing the firm of John I. Adams & Co., creditors respectively of Broughton, to become co-complainants. The members of the firm of Katz & Barnett are described as "resident citizens of and doing business in the City of New Orleans, State of Louisiana, and in the City of New York, State of New York." The citizenship [63] of those who constitute the firm of John I. Adams & Co. does not appear.

On final hearing, on November 25, 1882, a
decree was rendered in favor of the complain-
ants; finding that the transfer and conveyance
of his property by Broughton to Stewart Bros.
& Co., described in the pleadings, was made
with the intent to hinder, delay and defraud the
complainants and other creditors of Broughton
with the knowledge and connivance of Stewart
Bros. & Co., and the same was thereby canceled,
set aside, and declared to be null and void.
The decree proceeds as follows: "It appears to
the court that the complainants, at and before
making of said pretended transfer and convey-
ance, were, and still are, creditors of the said
John W. Broughton, and that the amount due
each of them respectively, including interest to
to this date, is as follows: Dunham, Buckley
& Co., ten thousand two hundred and twenty-
two dollars ($10,222.50); Edwin Bates &
10%
Co., four thousand three hundred and ninety-
one Po dollars ($4,391.08), John I. Adams &
Co., seven hundred and six dollars ($706.-
87); and Katz & Barnett, nine hundred and
thirty dollars ($930.82). Total, sixteen
thousand two hundred and fifty dollars

100

82

100

Barnett and John I. Adams & Co. as co-com-
plainants, alleging that, as the case then stood,
it was without jurisdiction, as the controversy
did not appear to be wholly between citizens of
different States. This, of course, could have
furnished no objection to the removal of the
cause from the state court, because at that time
these parties had not been admitted to the cause;
and their introduction afterwards as co-com-
plainants did not oust the jurisdiction of the
court, already lawfully acquired, as between
the original parties. The right of the court to
proceed to decree between the appellants and
the new parties did not depend upon difference
of citizenship; because, the bill having been
filed by the original complainants on behalf of
themselves and all other creditors choosing to
come in and share the expenses of the litiga-
tion, the court, in exercising jurisdiction be-
tween the parties, could incidentally decree in
favor of all other creditors coming in under the
bill. Such a proceeding would be ancillary to
the jurisdiction acquired between the original
parties, and it would be merely matter of form
whether the new parties should come in as co-
complainants, or before a master, under a
decree ordering a reference to prove the claims
of all persons entitled to the benefit of the
decree. If the latter course had been adopted,
no question of jurisdiction could have arisen.
The adoption of the alternative is, in substance,
the same thing.

It is, however, objected by the appellees,
Edwin Bates & Co., Katz & Barnett, and John
I. Adams & Co., that, as to them respectively
this court has no jurisdiction of the appeal, for
the reason that the decrees in their favor are
several, and that the amounts adjudged to be
paid to them respectively do not exceed the sum
or value of five thousand dollars.

[64]

[65]

[66]

On the authority of Seaver v. Bigelow, 5 Wall., 208 [72 U. S.,bk. 18, L. ed. 595]; Schwed V. Smith, 106 U. S., 188 [Bk. 27, L. ed. 156]; Loan & T. Co. v. Waterman, 106 U. S., 265[ Bk. 27. L. ed. 115]; Adams v. Crittenden, 106 U.S., 576 [Bk. 27, L. ed. 99]; Hawley v. Fairbanks, 108 U. S., 543 [Bk. 27, L. ed. 820]; and Nat. Bk. v. Stout, 113 U. S. 684 [Bk. 28, L. ed. 1152] the motion to dismiss the appeal as to all the appellees, except Dunham, Buckley & Co., must be granted.

delivery of possession, is tainted by the vice of
the original transaction. The objection we are
considering assumes that the whole transaction,
from the beginning, was free from actual and
intended fraud, and was meant to be a mode
of securing and paying an actual debt, in good
faith, without any design injurious to other
creditors, beyond that implied in obtaining_a
preference, which is not forbidden by law. In
this view, the admission that the conveyance to
Pintard was illegal does not affect the subse-
As to the remaining appellees, the cause must quent sale, which, on the contrary, being free
be disposed of on the merits. An outline of from objection, on account of its own nature
the transactions involved in the controversy is and form, served to remedy the defects in the
as follows: Broughton carried on business as a original security. It was quite competent for
merchant in Rodney, Mississippi, and became the parties to rescind and cancel the first con-
indebted, by reason of advances made on ac- veyance, and unite in the execution of another,
count of cotton purchases, to the appellants, free from objection. This is all they did.
Stewart Bros. & Co., merchants in New Or- It is further urged, however, that the sale to
leans in about the sum of $34,000. Being Stewart Bros. & Co., however formally cor-
pressed for payment, on May 26, 1881, he rect, and technically legal on its face, was made
gave his two promissory notes therefor, payable in pursuance of a design, participated in by
one in six, the other in eight months after both parties, actually to hinder, delay and
date, with interest at the rate of eight per cent defraud the creditors of Broughton. On this
per annum; and, to secure the payment of the point we have examined and weighed the evi-
same, a written instrument of that date was ex-dence, with attention and care, and are of
ecuted, by which Broughton conveyed to C. J.
Pintard all his stock of merchandise and assets
and property, in trust, in case he should make
default in the payment of the principal or inter-
est of the notes, to sell the property conveyed,
at public auction, for cash, to the highest
bidder, at the request of the holder of the notes,
on twenty days' notice. The instrument also
contained the following provision: "It is
understood and agreed between the parties
hereto, that the said party of the first part shall
have the right to carry on the business as here-
tofore, for the purpose of selling off the stock
of goods and collecting in the notes and ac-
counts due and to become due, and, in order to
enable said party of the first part to carry on
said business, the said parties of the third part
hereby agree to advance to him the further sum
of one thousand dollars, which last amount is
also understood and agreed to be included in
and covered by this deed in trust, and to be
due and payable six months after this date, the
maturity of the first note." This paper, ex-
ecuted by all the parties, was recorded on May
27, 1881.

opinion that it does not sufficiently establish
the case of the appellees. It would not be
profitable to rehearse the testimony, and point
out the facts and circumstances relied on, on
the one hand, to establish the fraud charged,
and those, on the other, adduced to rebut the
suspicions of dishonest and unlawful combi-
nation to defeat the claims of honest creditors.
It is sufficient, we think, to say, that the proof
falls short of that which the law requires to
establish so grave a charge.

It follows that the decree in favor of James H.
Dunham, William T. Buckley and Charles H.
Webb, partners as Dunham, Buckley & Co.,
must be reversed and the cause remanded, with
directions to dismiss the bill as to them; and it is
80 ordered. As to all the other appellees, the
appeal is dismissed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

JOHN S. PIRIE ET AL., Partners as CARSON,
PIRIE, SCOTT & Co., Plffs. in Err.,

v.

EVAN J. TVEDT ET AL., Partners as TVEDT
BROTHERS.

(See S. C., Reporter's ed., 41-45.)

On June 13, 1881, having been advised that
this conveyance was probably ineffectual
and void as to other creditors, by reason of its
form and contents, Broughton and Pintard, the
trustee, united in a conveyance of the same
property unconditionally to Stewart Bros, &
Co., in satisfaction of the debt represented by Removal of causes-joint action in tort, not sever-
the notes, and the latter took possession of the
property conveyed; and on the same day
Broughton executed also a bill of sale, for the
same property, upon the same consideration, to
Stewart Bros. & Co.

It is contended by the appellees that these conveyances, the last as well as the first, are fraudulent against creditors, per se, and void on their face; and such was the ground of the decree appealed from, as stated in the opinion of the court. To this we cannot accede Assuming that the conveyance to Pintard, in trust, was of that character, according to the law of Mississippi, it does not follow that the subsequent sale and transfer, followed by

able into separate parts.

1. In a suit for malicious prosecution (brought by citizens of one State against citizens of the same State and citizens of another State), there is no such separate controversy as entitles the citizens of the other State to remove the cause, even though they answered separately, from their co-defendants setting up a separate defense.

2. Where the cause of action is several as well as

Joint, the plaintiff may elect to sue each defendant
separately, or all jointly, and the defendants are
not permitted to object.

3. The fact that Judgment may be rendered against
a part of the defendants only, does not divide a
joint action in tort into separate parts any more
than it does a joint action on contract.
[No. 287.]
Submitted Apr. 24, 1885. Decided May 4, 1885.

[67]

[41]