without express authority.13 And where an agent assumed to collect interest without authority and without protest on the part of the principal, such principal would be estopped to deny the authority of the agent to collect the principal in view of the fact that the agent had been late in remitting and that the principal had been warned against trusting the agent.14 It has also been held that where the principal wished to keep the transaction a secret from her husband, and therefore arranged to have the interest paid at the office of the agent negotiating the loan, such agent would have authority to collect the principal in view of the unusual confidence involved.15 Likewise such general authority will be inferred where the principal has instructed the agent to notify the debtor that the debt must be paid. 16

The dissenting opinion in the principal case by Mason, J., concurred in by Burch, J., emphasizes the fact that Walmer took every possible precaution by retaining the securities in his possesion. The dissenting judges hold that there is no ground for the application of the doctrine of estoppel since it did not appear that Redinger was aware of the previous transactions between Walmer and the Pettyjohn Co. Although the weight of authority undoubtedly sustains the majority opinion, it would seem that the position of the dissenting judges is fundamentally correct. To raise an estoppel it should clearly appear that the third party was induced to act by a holding-out by the principal. Since the element of knowledge was not shown, one is inclined to disagree with the result arrived at in the principal case. Frank B. Wettig.

Removal of Causes: Diversity of Citizenship: Residence as defined under the Constitution and Federal Statutes.-The United States Constitution, in the Fourteenth Amendment, Section 1, declares that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Judicial Code, Section 24, grants the United States District Courts original jurisdiction in suits of a civil nature where the matter in controversy exceeds the value of three thousand dollars, and, among other things, "is between citizens1 of different states." Section 28 provides that if any suit of a civil nature, of which the district courts are given jurisdiction, is brought in a State court, it may be removed to the district court for the proper

13Quinn v. Dresbach, 75 Cal. 159 (1888); Frost v. Fisher, 13 Col. App. 322 (1899); Morgan v. Neal, 7 Idaho 629 (1901); Fowle v. Outclat, 64 Kan. 352 (1902); Wilson v. La Tour, 108 Mich. 547 (1896); General Convention v. Torkelson, supra, n. 10; Thornhill v. Masucci, 202 Mo. App. 357 (1919); Thomson v. Shelton, 49 Neb. 644 (1896); Wardrop v. Dunlop, supra, n. 6; Kissinger v. Quinn, 206 App. Div. (N. Y.) 126 (1923).

14Campbell v. Gowans, 35 Utah 268 (1909).
15Kile v. Zimmerman, 105 Neb. 576 (1921).
16 Wilson v. La Tour, supra, n. 13.
1Italics are writer's.

district by the defendant or defendants therein. "being non-residents2 of that state."

A novel question in the interpretation of these sections is raised in the case of Rich et al. v. Corno Mills et al., 300 Federal 236, (1924). The plaintiffs brought an action in the state court of Iowa against two Illinois corporations, and joined with them as defendants three individuals, one of them being an officer of the corporations. The latter was the only defendant who was a resident of Iowa. He had lived in Missouri, but removed to Iowa to carry on business of the corporations, buying a home there in which to keep his family. He exercised none of the privileges of citizenship in Iowa, and asserted that his intent was to remain there only so long as the corporations required his services, when he expected to return to Missouri. The action was removed to the Federal court on the grounds of diversity of citizenship, but was remanded by the court, holding that the officer defendant, though not a citizen of the state, was a resident therein, and that the removal statute required a diversity of residence.

This seems to be the first case in which the question is squarely raised whether, for purposes of removal, "non-residents" should be interpreted to mean "non-citizens." The court here clearly answered in the negative, and held that residence in the state prevented removal, regardless of citizenship. Was this ruling correct, or should Section 28 be read "being non-citizens of that state?"

It has been frequently held that, despite the wording of the Fourteenth Amendment, residence and citizenship are wholly different things within the meaning of the Constitution. It would appear that the residence referred to in the Amendment is a domicile, a fixed and permanent residence. And so, in relation to the jurisdiction of the federal judiciary, under section 24, domicile in a state, in respect to citizenship, is necessary to bring the case within the scope of the federal courts, and a mere averment of residence in a particular State is not an averment of citizenship in that State for the purposes of jurisdiction. "And if an allegation of residence is a state is not necessarily, even under the amendment, the equivalent of an allegation of citizenship, then the mere fact of residence in a state is not 2Italics are writer's.

Prentiss v. Brennan, 2 Blatch. (U. S.) 162 (1851); Parker v. Overman, 18 How. (U.S.) 137, 141 (1855); Bradwell v. State, 16 Wall. (U. S.) 130, 138 (1872); Mitchell v. U. S., 21 Wall. 350 (1874); Robertson v. Cease, 97 U. S. 646 (1878); Morris v. Gilmer, 129 U. S. 315 (1889); Martin v. B. & O. R. R. Co., 151 U. S. 673, 676 (1894); Steigleder v. McQuesten, 198 U. S. 141, 143 (1905); Woolridge v. McKenna, 8 Fed. 650, 683 (1881); Sharon v. Hill, 26 Fed. 337 (1885); Fales v. Chicago, M. & St. P. Ry. Co., 32 Fed. 673, 678 (1887); Haskell v. Bailey, 63 Fed. 873 (1894); Marks v. Marks, 75 Fed. 321, 322 (1896); Nichols v. Nichols, 92 Fed. I (1899); Hammerstein v. Lyne, 200 Fed. 165, 169 (1912); Hough v. Société Electrique Westinghouse De Russie, 231 Fed. 341 (1916).

'Prentiss v. Brennan, supra, n. 3; Mitchell v. U. S., supra, n. 3; Morris v. Gilmer, subra, n. 3; Sharon v. Hill, supra, n. 3; Willingham v. Swift & Co., 165 Fed. 223 (1908).

Robertson v. Cease, supra, n. 3; Grace v. Insurance Co., 109 U. S. 278 (1883); Everhart v. Huntsville College, 120 U. S. 223 (1887); Timmons v. Elyton Land Co., 139 U. S. 378 (1890); Denny v. Pironi, 141 U. S. 121, 123 (1891); Shaw v. Quincy Mining Co., 145 U. S. 444, 447 (1892); Wolfe v. Insurance Co., 148 U. S. 389 (1893).

necessarily the equivalent of citizenship." The distinction put between mere residence and the domicile necessary for citizenship is the presence of an animus revertendi or of an animus manendi.' The latter, an intention to remain for an unlimited time, is held essential for citizenship. And the circumstances relied on to establish this animus manendi are the declarations of the party, the exercise of political rights, the payment of personal taxes, a house of residence, and a place of business. The conclusion to be drawn is that a person is only prima facie a citizen of the state wherein he resides, and it is possible that he may be a citizen of one state and a resident of another. And further, it is to be seen that the word "resides," as used in the Amendment, is not to be taken in the ordinary sense of the word, but is to be read "domiciled."

9

Now turning to Section 28, dealing with removal, would it not seem that the same meaning should be put upon the word "resident" as is put upon it in the Fourteenth Amendment? It seems arguable that if the intent of the framers of the Amendment was that "residence" should mean "domicile," then the intent of the framers of Section 28 was that "non-residents" should mean persons not having a fixed and permanent residence in the state so as to become citizens. And so, if the animus manendi must be present to give a party the right to sue in the Federal courts on grounds of diversity of citizenship, then it must also be present to prevent a defendant from removing to the Federal court when sued in the state wherein he temporarily resides.10

The courts have said that the reason and object of this removal clause is to assure a trial free from local prejudices which may exist, and to provide a tribunal which is presumed to be more impartial." Now what is this possible prejudice that the courts think is meant to be avoided? Is it the prejudice that is liable to be present when the defendant is a stranger and the jury is one picked from the neighbors of the plaintiff, or is it a deeper prejudice? It seems possible that the lawmakers may have contemplated that the question of sovereignty might have an influence in an action, that the state tribunal might have a tendency to favor the citizen of its own state when he sued a citizen of another, even though the latter might reside for the time being in the same jurisdiction. Too, the person residing in one state might be the more disfavored for his desire to retain his citizenship elsewhere.

There is one more point to be considered in this argument. Taking the court's conclusion in the principal case that the defendant was a

"Sharon v. Hill, supra, n. 3, p. 344.

'Prentiss v. Brennan, supra, n. 3; Mitchell v. U. S., supra, n. 3; Morris v. Gilmer, supra, n. 3; Marks v. Marks, supra, n. 3.

Mitchell v. U. S., supra, n. 3.

'Robertson v. Cease, supra, n. 3; Sharon v. Hill, supra, n. 3. 10"No reported case has been discovered....

where a defendant conceded

to be a citizen of another state has been denied the right of removal on the ground of residence in the state where the suit is pending." 23 R. C. L. 731. "Barrow Steamship Co. v. Kane, 170 U. S. 100, 111 (1898); Anaconda Mining Co. v. Copper Co., 200 Fed. 808, 811 (1912); Feister v. Hulick, 228 Fed. 821, 823 (1916).

resident of Iowa, but still a citizen of Missouri, it would seem that the plaintiff could have brought this action in the federal court. There is a diversity of citizenship present to satisfy the requirements of the section, so as to give a federal court jurisdiction. And so it would follow that the plaintiff, though allowed to sue in the courts of his own state, where no local prejudice could intervene, could yet bring his action in the federal court, whereas the defendant, when sued in the courts of a state in which he was not a citizen, could not remove, though there be a possibility of prejudice. To pursue the argument further, if the defendant were sued in a Missouri court by a Missouri citizen, he could not remove as the federal court could have no jurisdiction, due to lack of diversity of citizenship;12 and if sued in Iowa, by a citizen of Iowa, he could not remove under the ruling in this case, not being a non-resident of Iowa. Yet it would seem that in one of these cases he should have the right of removal.

Under the tests previously stated, it does not seem that the court erred in holding this defendant to be a non-citizen; his declarations all seemed to be that he intended to return to Missouri as soon as his work was completed; he exercised no political rights in Iowa; and his business was only temporary. The only possible rebuttal of these points was his sale of his Missouri home and purchase of one in Iowa. And the latter step seemed to have been taken, due mainly to his inability to rent a suitable house while in the latter state.

But it does seem, after a consideration of the cases dealing with this question of residence and citizenship in regard to the jurisdiction of federal courts, that it would be more in accord with these previous decisions to hold that "non-residents" in Section 28 should be interpreted to mean "non-citizens."

A. J. Monahan.

Suretyship: Bankruptcy.-The situation in the case, In re Thompson, 300 Fed. 215 (1924), presents the question whether a surety who has been compelled to pay the entire amount of a common indebtedness, may collect dividends from the estate of an insolvent cosurety on the whole amount or only on the proportionate share for which the co-surety is liable. The question is difficult and one which has been decided both ways. The court in the instant case decided that the dividends should be based upon the entire amount of the debt, the amount recovered in the aggregate not to exceed that proportion for which the co-surety was liable. The weight of authority has, in fact, so held.

In the instant case, the holder of notes endorsed by five co-sureties, upon the insolvency of both principals called upon Hess, one of the

12The jurisdiction of federal courts of removal by defendant under section 28 is limited to such suits as might have been brought in that court by the plaintiff under esction 24. Mexican National R. R. Co. v. Davidson, 157 U. S. 201 (1895); Yuba v. Pioneer Mining Co., 32 Fed. 183 (1887); Wahl v. Franz, 100 Fed. 680 (1900); McKown v. Coal Co., 105 Fed. 657 (1901).

iStearns on Suretyship (3d ed.) 451; 21 R. C. L. 1140.

sureties, to pay the entire amount of indebtedness. This he did and was in part repaid by collateral deposited with him by the principal. One of the co-sureties was insolvent and could pay nothing. Dividends on Thompson's estate were being distributed and the surety claimed the right to receive his pro rata share based upon the whole amount of the notes, until he had received one-fourth thereof, and not based merely on the proportionate amount for which the insolvent was liable.

It is now well established that the right of contribution arises between sureties where one has been called on to make good the principal's default, and has paid more than his share of the entire liability. In the beginning, under the old Roman Law3 there existed no such principle. One paying the debt extinguished it. Even now, according to the strict letter of the law payment by one operates to wipe out the obligation. If it is kept alive at all this is only in order that protection may be given to him who has been forced to pay more than, in equity and good conscience, he ought to pay. In the later Civil Law, two remedies were introduced, namely, Beneficium Divisionis, by which one might insist upon the others being called upon to pay their shares; and Beneficium Decendarum Actionum by which one surety on paying the debt was entitled to require the creditor to assign his right to him. Early in the law of England' the doctrine of contribution between persons jointly or severally bound for the same duty was established. Whether this obligation to contribute be based upon the equitable maxim that equality is equity, or upon an implied contract resulting from the universality of that maxim, is a subject of controversy but does not materially matter. There has, however, been doubt in the English law as to the basis upon which recovery shall be had in such a case as that under discussion. Some early cases decide that dividends be allowed only on the share of the debt recoverable against the insolvent co-surety. A later case in the House of Lords decided otherwise in interpreting a statute which had been passed determining the rights of a co-surety. Our courts

2Brandt on Suretyship, vol. I, sec. 279.

"Crimius' Manual of Civil Law, p. 204-205.

'Bell's Principles of Scotland, p. 197, sec. 268.

"Keith v. Forbes, 3 Paton (Scotch) 350 (1794); Maxwell's Creditors v. Heron's Trustees, 3 Ross. Lead. Cas. 92 (1794); Ex parte Elton, 3 Vesey (Eng.) 238 (1796).

Morgan v. Hill, 3 Law Rep. Ch. Div. 400 (1894).

Vict. Statute, 19 & 20 Vic. c 97, sec. 5, provides in substance that the surety who has paid the debt of the principal be subrogated to all the rights and remedies of the creditor against the principal and co-sureties; It provided also that no cosurety recover more than the just proportion to which each is justly liable. The court in Morgan v. Hill, supra, interpreted this to include also the right of the creditor to collect dividends upon the whole amount of the debt from the insolvent co-surety. The contention was in that case that the statute puts the cosurety in the same position as a joint debtor and entitles him on paying the debt, to an assignment of the securities held by the creditor; but that the statute expressly provided that the co-surety shall not recover more than a just proportion from his co-surety and that this proportion is the extent of the debt. If the statute has not settled the question for England, it has with the interpretation put upon it, at least strengthened the position of the majority.