868
JEDERAL REPORTER.
izen of the state of New York, and was made a. party to the suit, that he might be decreed to deliver over to the com. plainant the custody and possession of the mortgage and bond and .assignments, which, it was alleged, he had unlawfully retained after his transfer of the Baml'l to the complainant. The bill contained the prayer that if the said complainant should fail to get the possession of the bond, mortgage and assignments, the said bOlid and mortgage might be foreclosed without Buch possession, and proof made of the amount due thereon. The other defendants were made parties, either because they had become purchasers of some portion of the mortgaged premises, Bu}jject to the lien of the mortgage, or because they were the judgment creditors of Elisha Ruckman, and had attached his right and interest in the mortgage by proceedings in foreign attachment, by virtue of which they claimed to have a lien upon the mortgage debt. The petition for the removal of the cause into this court was filed by the defendant Elisha Ruckman under the second section of the act of congress of March 3, 1875, which provides "that any suit of a oivil nature, at law or in equity, now pending or hereafter brought in any state oourt, where the matter in dispute exceeds, exclusive of costs, the snm or value of $500, · · · · in which there shall be a controversy between cItizens of different states, · · · · either party may remove said snit into the circuit court of the United States for the proper district. And when, in any suit mention.ed in this section, there shall be a controversy which is wholly citizens of different states, and which can beJully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove said suit into the circuit court," etc. It will be observed that there are two clanses to this seo· tion, the first having referenc.e to A suit in ':fhich there is a. controversy between citizens of, different states, and the second too. suit in which there is a controversy which is wholly betwoon citizens of different states, and whioh can befuHy oetermiried as between them. A suit of the first
:BUClOIAN V. PALIS.lDB LA.ND 00.
eharacter is only remova.ble when. either party-i. all of the plaintiffs or all of the defendants-join in the, petition for removal. National Union Bank of Dover v. Dodge, 25 Int. Rev. Rec. 304. But a suit of the second character may be removed by one or of the plaintiffs or defendants actually interested in such controversy. If the present cause is removable by these proceedings, it must be under the las,t clause of the section, as only one of the defendants has filed the petition. We have, then, to consider, these two questions: (1) Does the suit embrace a controversy;which is wholly between citizens of different states, and which can be fully determined as between them? (2) Has the Ruckman an actual interest in such controversy? H both are answered in the affirmative the removal is within the law, otherwise the cause must be remanded. It is conceded that a suit may include more than one controversy There may be several. Many different subjects of controversy are often involved in a suit, in some of which one or more of the defendants are actually interested, and the other defendants are not. In Taylor v. Rockefeller, 18 Am. Law Reg. 307, Mr. Justice Strong, in interpreting this clause of the third section oftha act, says: "The right of removal is given where anyone of these controversies is wholly between citizens of different states, and can be fully determined, as between them, though there may be other defendants actually interested in other oontroversies embraced in the suit. The clause 'a controversy which can be fully determined as between them,' read in connection with the other words, 'actually interested in stwh controversy,' implies that thel'e may be other parties to the suit, and even necessary parties, who are not entitled' to remove it. Such other parties must be indispensable to;a determination of that controversy, which is wholly between the citIzens of different states, ot their being parties to the ' actioh is no obstacle to the removal of the case into the circuit court," ,v.l.no;6-·24 I
e.,
870
JZDBBAL BBPOBTEB.
In determining the question of the jurisdiction of this court in the case we must look at the petition for removaJ, and the bill and answer filed, and ascertain whether such a controversy is found as the act of congress prescribes. None such is suggell.ted in the petition. The removal is prayed for beoouse the controversy in the suit is between citizens of different states. But that is one of the grounds of removal stated in the first clause of the section, in which the united action of all the defendants or all the plaintiffs is necessary to make the petition operative. I, might rest the decision of the motion upon this, aud remand the cause, (Gold Walking J Water 00. v. Keye" 6 Otto, 201,) but as it was not adverted to in the argument, and another quest;on was fully discussed, it will not be improper for me to give it some attention. n will be observed that. Margaret Ruckman, being a feme covert, has filed her bill of, ;complaint, by her Dext friend, eamueJ M. Hopping, who is a citizen of the- state' of New Jersey. It was insisted, on the hearing, that he thus became a necessary party to the suit, and as the petitioner fOl the removal was a citizen of New York, and the said Hopping a citizen of New Jersey, a oontroversy existed between oitizens of different states. It was in accordance with ·the long established principles of equity practice for the complainant. a feme covert, to file the bill her next friend. n may be doubted, however, in new of the legi8'lation of New Jersey in rp,gard to married women, whether such a course was necessary. The eleventh section of the married women's act, (Rev. St. of N. J. 638,) provides that a married woman may mainta.in an action in her own name for the recovery of money, and all property, real or personal, which by that act was declared to be her separate property. But, whether a necessary party or not, the next friend thus introduced has no possible interest in any controversy involved injhe suit. No decree could be made for him, whereby he would be personally benefited, or against him, exoept for costs, if the real oomplainant failed to establish her claim to
GARnETT
371
the property. m ascertaming me parues &0 ,he controversy we must look at the substance and not at the mere form. The bill was filed by Mrs. Ruckman for the foreclosure of a mortgage, and in the suit there was involved a controversy with her husband as to the rights of ownership and possession of the original papers evidencing the e:Dsten.ce of the mortgage. The petitioner was, doubtless, actually interested in that question, and so was the complainant. It was the principal controversy in the suit. The husband a:!ld wife were the real parties to it, and both are citizens and residents of the state of New York. But, besides this, admit it to be true that Samuel M. Hopping was a necessary party, what controversy arises in the proceedings which is wholly between him and the petitioner, and which can be fully determined as between them? Surely, not the controversy about the ownership and possession of the bonds and mortgages, because Mrs. Ruckman has an interest in that question, and was an indispensable party in a suit for its determination. In short, I am unable to find in the petition or the plead. ings any facts which warrant the removal by the dpfendant Ruckman, and the cause must be remanded to the oourt of chancery of New Jersey, with costs.
GARRETT SAYLES
and others
tl. SAYLES
and others. and othcta.
'U. GARRETT
(OWcui' OlYUrt. D. Rhode I8land. March I, leBO.} LIABILITY OJ!' 8'roClUlOLDER&-BoJlD8 BEOUlUID BY MORTGAGE OJ!' CORPORATE PRoPERTY.-The issue of negotiable
bonda, aecured by mortgage upon all the property of a corporation, and allotted fJ'/'O rata to the atockholders, does not relieve such stockhQlders trom their personal liability, under the stD.'u.tes of Rhode laland, to the assignees of such bonds.
872 SIGNEE IN BANKRUPTcy.-A
REPORTED.
BARXRUPT 8'rocmoLDER-CONTI1£lJING LIABILITy-INDEMNITY 01'
Asstipulation by a purchaser of such bonds to indemnify the assignee in bankruptcy of the original holder of a part of such bonds against all liability as a stockholder in said corporation, does not relieve the bankrupt or other members of the corporation from their personal obligation to the purchaser of such bonds.
The American File Company was incorporated by an aet of the legislature of Rhode Island in May, 1863, and was organized in the June following. The company bought a patent under which the manufacture of files had been before carried on in Baltimore, and the persons who sold them the patent took nearly one-half the stock of the new company. The capital appears to have been insufficient for the business, and for some years money was raised or credit was obtained upon the notes of the company, indorsed by the stockholders, all of whom were liable for the debts of the company under the statutes of Rhode Island, relating to manufacturing corporatbns, by reason of the omission to file certain statements necessary to relieve that liability. In 1870 the company duly resolved to issue bonds, secured by a mortgage of all their corporate property, real and personal, to be offered to the stockholders, pro rata, until April 1, 1870, and such as were not then taken were to be disposed of "in the order of applicants." The bonds and mortgage were made accordingly. The bonds were payable to bearer in five years from January 1, 1870, with interest at 10 per cent. per annum, for which coupons were attached to them. Allen A. Chapman was the principal stockholder in Baltimore, and he took and paid for, in the. indorsed notes of the company, the full proportion of bonds allotted to the stockholders in that city. The notes with which he paid for them belonged to his firm of Kirkland, Chase & Co. Several of the smaller stockholders refused to subscribe, and he, or his firm, retained the bonds. Kirkland Chase & Co. were merchants doing a large business in Baltimore, and for 30 years or more they had dealt with ihe plaintiffs, Robert Garrett & Sa11.8, bankers, of Baltimore, and among other things they used 1JO borrow money of the bankers upon collateral security. In the summer of 1872
