.586
IEDERAL REPORTER.
tlNo. 573. "ERIE, PA., October 12, 1875. "Pay to Mr. J. Heffner, or bearer, five dollars in goods, and charge to "$5. ERIE ROLLING MILL Co." The petitioners each hold a number of such orders, and they are the basis of their claims to preference. The petitioners were merchants at Erie, and upon the presentation to them of the said orders, by the operatives to whom they were issued, paid the latter the amount of the orders in goods. Under this state of facts is the claim to preference which the petitioners set up well founded. It is not pretended that they themselves are operatives or laborers. Can they be regarded as assignees of the operatives, or entitled to stand in the shoes of the latter by substitution? It is certain that the petitioners have no formal assignment of these claims, and there is nothing to show that the operatives intended to assign them. Such intention, it seems to me, is not to to be presumed. To keep such liens alive, in favor of parties paying the orders, might be highly prejudicial to the laborers; for these orders, in the hands of the merchant paying them, if still alive, might come in competition with the claims of the laborers themselves for preferences under the law. In my judgment the true view of the case is this, that when the petitioners paid the orders in question by furnishing goods to the operatives, the labor claims were extinguished, and the Erie Rolling Mill Company became debtors to the petitioners, respectively, for the amount of goods furnished to the operatives pursuant to said orders. And now, to-wit, February 5, 1880, the rules to show cause why the petitioners' claims should not be paid as preferred claims are discharged, and said petitions are dismissed.
RUCKMANv.RUCKMAN.
587 etc., tJ. RucKMA.N
MA.RGARET RUCKMAN,
by her next friend, and others.
(Oircuit Oourt, D. New J(;rsey. April 6, 1880.) REMOVAL OF CAUSE-ACT OF MARcn 3, 1875-UNNECESSARY PARTY.-In a suit in equity to determine the ownership of a bond and mortgage, the mortgagor is not, under the circumstances of the case in controversy, a necessary party defendant, and, therefore, the suit may be removed, under the act of March 3, 1875, where all the other defendants join in the petition for removal. SAME-GROUND OF I{EMOVAL-PETITION.-A cause may be removed under the act of March 3, 1875, where the whole record discloses a case over which the court has jurisdiction, although the ground of removal be erroneously alleged in the petition.
Motion to Remand. Robert Allen, Jr., for petitioner. Jacob Weart, for complainant. NIXON, J. The suit is brought by Margaret Ruckman, wife of one Elisha Ruckman, a citizen of the state of New York, by her next friend, Samuel M. Hopping, a citizen of the state of New Jersey, against Elisha Ruckman, a citizen of the state of New York, and John F. Boylan and James H. Marley, citizens of the state of New Jersey. The case differs from the suit by the same complainant against the Palisade Land Company and others,· which 1 have just considered, from the fact that one of the defendants, (Boylan,) who petitions for the removal, is a citizen of a dif· ferent state from that of the complainant, and seems to be "actually interested" in a controversy which is wholly him a.nd her, and which can be "fully determined as between them." The bill sets up, in substance, that the complainant is the wife of the defendant Ruckman, now living in a state of separation from him; that he was a man of large wealth, and began in the year 1877 to make settlements of his estate upon her by placing loans in her name, and having bonds and mortgages made to her, and having other bonds and mortgages assigned to her to hold feS hel' :::Jparate estate j ,that in *Ante, 367.·
588
FEDERAL REPORTER.
the month of September, 1878, he loaned to the defendant James H. Marley $5,000, with the promise to complainant that the bond and mortgage to be given by Marley as security for the loan should be made directly to her as part of said settlement; that the bond and mortgage were in fact executed by Marley and wife to John F. Boylan, who shortly afterwards, in pursuance of an understanding and agreement with her husband, signed, sealed and acknowledged an assignment of the same to the complainant, whereby the title to the mortgage became vested in her; that afterwards, on demand, he refused to surrender the papers to her, claiming ownership in himself, by purchase for valuable consideration from Elisha Ruckman, which she charges is a mere contrivance between the defendant Boylan a.nd her husband to deprive her of the benefit of the gift. The prayers of the bill are, (1) that the defendant Elisha Ruckman may be decreed to pass over to the complainall't the bond and mortgage, if the same are in his possession or under his control; (2) that the defendant John F. Boylan may be decreed to deliver up to complainant the bond, mortgage and assignment thereof, if the same continue in his possesion or under his control; (3) that if the assignment heretofore made by the said Boylan to the complainant has been destroyed, he may be decreed to execute and surrender to her a second assignment, so as to fully vest the legal title in her; (4) that as between the complainant and defendants Ruckman and John F. Boylan, and every person who has obtained a secret interest in the bond and mortgage, a decree may be made vesting the title, Ilnd the debt secured by the same, in the complainant; and (5) that it may be decreed in what sum the said Marley was indebted to the complainant upon said bond and mortgage, and thai; he may be protected by a decree from all loss in the pay--nent of the mortgage debt to the complainant. The answer of Boylan admits the due execution of the bond and mortgage to him by Marley and wife, and states that he had no interest in the transaction at that time, as Ruckman furniehed the money for the loan; that he understood, either
