instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record," (Wag. Stat. 227, § 26), the supreme court, in sustaining the doctrine of notice by possession, have not placed it on the ground of constructive notice, for the reason that the statute required actual notice. In Beatie v. Butler, 21 Mo., 313, Scott. J., in delivering the opinion of the court, thus expresses himself: "The fact that another is in possession, when known to a purchaser, may be submitted to a jury in connection with other circumstances, to show that he had actual notice of an adverse title. But the mere fact itself, with nothing more, can not, as we conceive, tend in the least to a conviction that there was any notice such as is required by stafute. Actual notice does not require positive and certain knowledge, such as seeing the deed; but that is sufficient notice, if it be such as men usually act on in the ordinary affairs of life." Ryland, J., concurs in the judgment, but not in what is said of notice by possession; the other judge (Leonard) not sitting. The subsequent case of Vaughan v. Tracy (22 Mo. 415), was heard before a full bench, composed of the same judges. Leonard, J., in delivering the opinion of the court reversing the judgment of the court below, because of an instruction to the effect that, as matter of law, possession was actual notice, declared his individual opinion to be; that "the fact of possession might be presumed to have been within the purchaser's knowledge; and if knowledge is brought home to the purchaser, that a third person is in the possession and apparent ownership of the land, it ought, under ordinary circumstances, to be deemed sufficient information to the second purchaser that the possessor is the owner in fee, under a title derived from a former owner." Ryland, J., concurs, not only in the judgment, but in that part of the opinion relating to notice by possession, and Judge Scott refers to the case of Beatie v. Butler, as expressing his views. The case of Vaughan v. Tracy was again before the supreme court, in 25 Mo. 318, and was again reversed for substantially the same error as before, and the same views are expressed by the court, without dissent, in regard to the question under consideration. The difference of opinion between the learned judges, who considered these cases, seems to be in regard to the weight to which the fact of possession, (which they agreed should be submitted to the jury), was entitled as evidence of actual notice of ownership. One view being that it was entitled to no consideration at all, and the other that, under ordinary circumstances, the knowledge of such possession amounted to sufficient information to the second purchaser, that the possessor was the owner. If the latter of these views be correct, it would seem that the only question for the jury in such a case would be, whether the subsequent purchaser had knowledge of such possession, or, from the circumstances, such knowledge could be presumed.

This question seems to lie in the neighborhood of that shadowy line which separates constructive notice from actual notice established by presumptive evidence. According to the definition of actual notice, as laid down by Wagner, J., in Speck v. Riggin, 40 Mo. 405, such.possession would create such a strong presumption of notice that the subsequent purchaser would not be permitted to deny the knowledge imputed to him. Says the learned judge: "Notice may be either actual or constructive. It is actual when the purchaser either knows of the existence of the adverse claim, or is conscious of having the means of knowledge, although he may not use them. In Maupin v. Emmons, 47 Mo. 304, it is held sufficient evidence of notice of an unrecorded deed, if the jury may infer from it either full knowledge or voluntary ignorance on the part of the purchasers. The fact that one other than the vendor is in possession of real estate, when brought to the knowledge of a purchaser, would certainly place at his disposal the means of ascertaining by what right such possessor held. He could not fail to be conscious of having such means of knowledge in his possession. To fail to use them, would be "voluntary ignorance." Nor is it at all certain, that in cases where it is admitted that possession is open, notorious, and exclusive, it would be necessary to submit to the jury even the question of knowledge of the possession. The actual notice upon which the occupying claimant relies, might be established without it. It is incumbent upon a purchaser to inquire. Inquiry would inevitably lead to knowledge of a fact which is notorious. The fact of possession being ascertained by the purchaser, he is bound to pursue his inquiry until he ascertains the nature of the possessor's claim. Having these means of knowledge at his command, and failing to use them, the law treats him precisely as though he had used them and learned all that might have been ascertained upon inquiry. McLaughlin v. Shepherd, 32 Me. 143; Handy v. Summers, 10 Gill & Johnson, 316; Wickes v. Lake et al, 25 Wis. 71; McCulloch v. Cowhen, 5 W. & S. 427; Woods v. Farmere, 7 Watts, 305; Bailey v. White, 13 Tex. 114; Baynard v. Norris, 5 Gill. 538; Davis v. Hopkins, 15 Ills. 519; Bailey v. Richardson, 15 Eng. L. & E., 218; Lea v. Polk Co. Copper Co. 21 How. 493; Hughes v. U. S., 14 Wall. 232; Shumate v. Reavis, 49 Mo. 333. In the absence of statutes requiring actual notice, the courts have inclined to regard possession as constructive notice, and in the following cases it is held not to be subject to rebuttal or denial: Chesterman v. Gardener, 5 Johns. Ch. 29; Governor v. Lynch, 2 Paige, 300; Grimestone v. Carter, 3 Id. 421; Krider v. Lafferty, 1 Wharton, 304; Lightner v. Mooney, 10 Watts. 412; Sailor v. Hertzog, 4 Wharton, 259; Kerr v. Day, 2 Harris, 112; Knox v. Thompson, 1 Little, 350; Morton v. Robards, 4 Dana, 258; Buck v. Holloway, 2 J. J. Marshall, 178; Hackwith v. Dameron, 1 Monr. 235; Macon v. Sheppard, 2 Humph. 335; Burt v. Cassity, 12 Ala. 734; Dixon v. Doe, 1 Smeedes. & Marshall, 70; Wilty v. Hightower, 6 Id. 245; Brice v. Brice, 5

Barb. 535; Johnson v. Glancy, 4 Blackf. 94; Webster v. Madox, 6 Me. 256; McLaughlin v. Shepherd, 32 Id. 143; Jenkins v. Bradley, Sneedes & Marshall, Ch. 338; Tuttle v. Jackson, 6 Wend. 213; Parks v. Jackson, 11 Id. 442; Matthews v. Demeritt, 22 Me. 312.

There are numerous cases, in which, however, it is treated as constructive notice, which may be explained away or rebutted by direct testimony, or by countervailing circumstances. Williams v. Brown, 15 N. Y. 354; Cunningham v. Buckingham, 1 O. 264; Harris v. Arnold, 1 R. I. 125; Flagg v. Mann, 2 Sumner, 556; Rogers v. Jones, 8 N. H. 264; McMechan v. Griffing, 3 Pick. 154; Hewes v. Wisnell, 8 Me. 94; Rupert v. Mark, 15 Ills. 540. The weight of authority, in the absence of statutory provisions to the contrary, would seem to be on the side of considering the constructive notice, as not subject to rebuttal or denial, except where the purchaser had made diligent inquiry of the possessor. It seems quite clear, both upon authority and principle, that, in order that possession may operate as notice or even evidence of notice, the title and the possession under it must be contemporaneous with the purchase. The grantee will not be affected with notice of what occurs after his purchase, nor of antecedent possession, where the real estate is unoccupied at the time of his purchase. Rupert v. Mark, 15 Ill. 540; Lightner v. Murray, 10 Watts. 407; Ehle v. Brown, 31 Wis. 405; Boggs v. Varner, 6 W. & S. 469-74; Campbell v. Brackenridge, 8 Blackf. 471.

Where the record shows the title in the occupant, his possession will be referred to his record title, in preference to any other, and a purchaser will not be charged with notice of an unrecorded title, or equitable claim under which the possessor pretends to hold. As where the mortgagee is in possession under a recorded mortgage, a purchaser from the mortgagor will not be bound by notice of an unrecorded conveyance of the equity of redemption from the mortgagor to the mortgagee, unless by the terms of the recorded instrument the mortgagor was entitled to possession at the time of the last purchase. Plumer v. Robertson, 6 S. & R. 184; Woods v. Farmere, supra.

The authorities are conflicting in this country, as to whether the possession of a tenant is notice of the unrecorded title of his landlord. The English cases confine the effect of possession to the title of the party actually in possession. The tenant's possession is simply notice of his tenancy, and not of his landlord's title. Barnhart v. Greenshields, 28 Eng. L. & Eq. 77; Sug. on Vendors, vol. 3, § 231-2, and cases cited. Many of the American authorities decide the question in the same way, and in the cases where it is so decided, the circumstances of each particular case seem to warrant this view of the law: Beatie v. Butler, 21 Mo. 313; Flagg v. Mann, 2 Sumner, 557. But in Sailor v. Hertzog, 4 Whart. 259, Hood v. Fahnestock, 1 Barr, 470, Kerr v. Day, 14 Penn. 112, Wright v. Wood, 23 Id. 120, Wickes v. Lake, 25 Wis. 71, the contrary doctrine is held apparently with equally

good reason. Of course inquiry of the tenant in possession would elicit information as to who the landlord was, and in that way would inform the purchaser that some one else claimed to own the land. But should his diligence be unproductive of information concerning the title, further than that of the occupant of the premises, the effect of his possession as notice to purchasers would end with him, and any unrecorded or parol conveyance would be unavailing in behalf of a landlord of the tenant.

The possessor of real estate may be estopped from relying upon his possession as notice of title, by putting upon record a conveyance inconsistent with title in himself. Scott v. Gallagher, 14 S. & R. 333; Woods v. Farmere, 7 Watts. 382; Newhall v. Pierce, 5 Pick. 450; N. Y. Life Ins. Co. v. Cutler, 3 Sanf. Ch., 176. But in Randall v. Silverthorn, 4 Barr, 173, occupation of an easement in the premises, after the conveyance of the fee, is evidence of a parol reservation; and in Webster v. Madox, 6 Me. 256, Kent v. Plumer, 7 Id. 464, it was held that continued possession by the grantor was sufficient evidence of a re-conveyance by the grantee, although both conveyances were part of the same transaction, and the deed of the grantor was recorded though the re-conveyance was not. This extension of the rule may justly be regarded as very unsafe to follow, and when to meet a bad case it is so extended, there would be danger that it might come back to plague the court in the future. It is not believed that the continued possession of the grantor would be regarded as notice to purchasers, of a re-conveyance, outside of the states where it has already been so decided.

It should be borne in mind that, to have the effect of notice, the possession should be exclusive, (Buckmaster v. Needham, 22 Vt. 617; Kendall v. Lawrence, 22 Pick. 540), unequivocal and easily distinguished from that of the grantor. Bellington v. Welch, 5 Binney, 129; Hanrick v. Thompson, 9 Ala. 409; Holmes v. Stuart, 3 Green, Ch. 492; Kendall v. Lawrence, supra; McMechan v. Griffing, supra. When the possession is that of a tenant in common, it would not operate as notice of an unrecorded or parol conveyance from his cotenant. And where the possession appears to be in conjunction with the grantor, and the limits to the portion occupied by each are undefined, it will, in general, be regarded as a tenancy under the grantor, in the absence of distinct information to the contrary. W.

ANOTHER story of the late Senator Nye is going the rounds of the papers: It is related that he was trying a case in the southern tier, the presiding judge being peevish and irritable, as well as rather dull. Gen. Nye had not only cross-examined the witness at great length, but had frequently put the same questions, which the judge had frequently ruled against as improper. At last the patience of the judge was exhausted, and he rebuked Gen. Nye, and petulantly asked him: "Gen. Nye, what do you think I am sitting here for?" Nye looked up at the bench, and, with a grave countenance, but a twinkle in his eye, answered coolly and composedly, You have got me this time, your

Honor!"

By the demurrer to the bill the question is presented, whether this court has jurisdiction to entertain a suit in equity to foreclose a mortgage, prosecuted by a nonresident assignee in a case where the assignor is a citizen of the state and district in which the mortgagor resides and the action is brought. This question must be answered as we determine the construction to be given to the first section of the act of Congress of March 3d, 1875, relating to the jurisdiction of circuit courts of the United States. U. S. St. at L., vol. 18, part 3, p. 470. That act (section 1), after providing that "the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and in which there shall be a controversy between citizens of different states," declares that "no circuit or district court shall have cognizance of any suit founded on contract, in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon, if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange." Prior to the passage of this act, no suit at law upon a promissory note could be prosecuted in the federal court by the transferee or assignee of the note, in cases where the assignor, by reason of citizenship, could not have prosecuted such suit. By virtue of the enlarged jurisdiction conferred by the act, such an action may now be maintained by an assignee who is a citizen of another state, though it could not have been prosecuted by the assignor. Now, does the act give to the court jurisdiction to entertain a proceeding in equity in behalf of such assignee, to foreclose a mortgage given to secure promissory notes, in a case where the assignor could not, because of citizenship, have prosecuted such a suit?

In Osgood v. Chicago, Danville and Vincennes R. R. Co. et al., 7 C. L. N. 240, the circuit judge of this circuit, in construing the act of March 3d, 1875, regarded it as the intention of Congress, by that act, to consolidate in one act all the previous general acts conferring jurisdiction upon the circuit courts, and at the same time to give the court jurisdiction in some cases where no previous act of Congress had conferred it. By the act, not only is jurisdiction extended, but the right is

given to remove causes from state to federal courts in cases where removals were never before authorized. The language of the first section includes suits of a civil nature in equity, as well as at common law; and another section of the act contains new and ample provisions for acquiring jurisdiction of non-resident parties in suits for enforcement of equitable and other liens. Reference is made to these features of the act, as indicative of its spirit and general scope. A mortgage given to secure the payment of a promissory note is a mere incident to the note. It is extinguished by payment of the note. It passes with a transfer of the note. The debt is the principal thing, and the mortgage is collateral. No defense involving the validity of the debt can be set up against a mortgage in the hands of an assignee, which can not be set up against the debt itself. A mortgage is attached to the debt, and follows its destinies and ownership. It is beneficially assigned, transferred, released, surrendered, re-issued and revived, with the instrument evidencing the debt, and without any other forms or ceremonies than are requisite in case of the latter. Martineau v. McCollum et al., 4 Chand. 153; Croft v. Bunster et al., 9 Wis. 503; Blunt v. Walker et al., 11 Wis. 334.

Although it was formerly held by the Supreme Court of the United States that, in a foreclosure decree, it could not be adjudged that the mortgagor pay a balance that might remain unsatisfied after exhausting the proceeds of the mortgaged premises [Noonan v. Lee, 2 Black, 500; Orchard v. Hughes, 1 Wall. 74], it is now provided by rule of that court that, in suits in equity for the foreclosure of mortgages, a decree may be rendered for any balance that may be found due over and above the proceeds of sale, and execution may issue for the collection of the same. 1 Wall. 5. In view of the relation which the mortgage bears to the debt, it may be accurately said that an action to foreclose the mortgage is founded upon the debt. It rests upon the principal contract, which is the note, and its object is the recovery of the debt by exhausting the security, which is the incident; and, as we have seen, the security being exhausted, the debtor may be pursued in the same proceeding by execution for any balance against his general property.

In Sheldon v. Sill, 8 How. 441, cited in the argument, the court say that a mortgage is but a special security, and that the remedy obtained on it in a court of equity is but the satisfaction of the debt. "It is the pursuit, by action, of one debt on two instruments or securities, the one general, the other special." The jurisdiction, invoked by bill to foreclose, is appealed to for recovery of the debt, the evidence of which lies in the principal contract, the note. The mortgage following the debt, the holder of the debt has the equitable right to the security, and can therefore foreclose. As the result of this view of the question, I hold that, under the act of 1875, this court has jurisdiction in a suit in equity to foreclose a mortgage given to secure a promissory note where the assignee and holder is a citizen of another state, and the maker a citizen of this state and an inhabitant of this district, though the assignor could not, by reason of citizenship, have brought the suit. Demurrer overruled, with leave to answer.

THE oldest judge in England is the Right Hon. Sir Fitzroy Kelly, Lord Chief Baron of the Exchequer Division of the High Court of Justice, aged eighty-one; the youngest is Sir Nathaniel Lindley, Justice of the Common Pleas Division, aged forty-nine. The oldest judge in Ireland is the Hon. James O'Brien, of the court of Queen's Bench, aged seventy-one; the youngest, the Right Hon. Christopher Palles, LL.D., Chief Baron of the Court of Exchequer, aged forty-six. The oldest of the Scotch Lords of Session is Robert Macfarlane, Lord Ormidale, aged seventy-five; the youngest, Alexander Burns Shand, Lord Shand, aged forty-eight.

POWERS OF RECEIVERS.

COWDREY v. GALVESTON, HOUSTON & HENDERSON RAILROAD.

Supreme Court of the United States, October Term, 1876.

1. AUTHORITY OF RECEIVERS TO INCUR EXPENSES.A receiver is not authorized, without the previous direction of the court, to incur any expenses on account of property in his hands, beyond what is absolutely essential to its preservation and use, as contemplated by his appointment. Accordingly, expenditures incurred by a receiver to defeat a proposed subsidy from a city to aid in the construction of a railroad parallel with the one in his hands, were disallowed in the settlement of his final account, although such road, if constructed, might have diminished the future earnings of the road in his charge.

2. THE EARNINGS OF A RAILROAD in the hands of a receiver are chargeable with the value of goods lost in transportation, and with damages done to property during his management.

3. CLAIM OF ATTORNEY FOR PROFESSIONAL SERVICES. -Where an attorney and counselor-at-law was employed by trustees of certain mortgaged property to foreclose the mortgages upon a stipulated retaining fee, and he entered upon such retainer and commenced the suit and prosecuted it until prevented by the outbreak of the civil war, and, after the termination of the war, offered to go on with the suit; but in the meantime, the trustees having died, a new suit was commenced and prosecuted without his assistance by the bondholders (for whose security the mortgages were executed), to foreclose the same mortgages, in which suit a receiver was appointed; held, that his claim for his fee was chargeable against the funds obtained by the receiver from the mortgaged property.

Appeal from the Circuit Court of the United States for the Eastern District of Texas.

Mr. Justice FIELD delivered the opinion of the court:

In February, 1867, a suit was commenced in the Circuit Court of the United States for the Eastern District of Texas, for the foreclosure of certain mortgages, executed by the Galveston, Houston, and Henderson Railroad Company, a corporation created by the legislature of Texas, and the sale of the mortgaged property. The mortgages were adjudged valid by the court, and the sale of the mortgaged property was decreed. Subsequently, in 1869, by consent of the parties, Cowdrey, one of the complainants, was authorized to take the charge and management of the property and act as receiver of the court. He accordingly qualified, and for some years acted as such receiver, superintending the management of the road of the company until it was sold, and disposing, under direction of the court, of its earnings, and of the proceeds received when the sale was made. Reports of his proceedings were rendered from time to time to the court, and received its approval. His final report was filed in 1874, showing a balance of assets in his hands of $6,963.99, and the direction of the court as to its disposition was prayed. Exceptions to the allowance of the account being taken, the matter was referred to a master for his examination and report. The master refused to allow a credit for certain expenditures, incurred to defeat a subsidy from the city of Galveston, to aid the construction of a road parallel with the one in the hands of the receiver. These expenditures amounted to $14,029.15, and this sum being added to the amount of the assets admitted to be in his hands, the receiver was charged with $20,993.14.

The master allowed certain sums against the company for goods lost in transportation and damage done to property whilst the road was under the management of the receiver, amounting to $7,565. The

master also allowed a claim of John C. Bullitt, Esquire, for professional services to the trustees in a previous attempt to foreclose the mortgages, the complete execution of which was prevented by the war. The claim was for $5,000; but the court, in its decree, reduced the amount to $2,500. The report of the master, modified as to this amount, was confirmed, and, by the decree of the court, the receiver was directed to pay the several amounts allowed, besides certain costs incurred, out of the proceeds in his hands, in preference to the balance due the complainants. From this decree the appeal is to this court.

The expenditures to defeat the subsidy proposed from the city of Galveston were properly disallowed. It was no part of the receiver's duty to interfere with the construction of a parallel line of railway, or to attempt to defeat any contemplated aid for such an enterprise. The proposed line may have been of great importance to the public and necessary to the prosperity of the city, though it might possibly diminish the future earnings of the company whose road was in his charge. At any rate, as an officer of the court, the receiver could not be allowed to determine the question of its importance, either to the public or the company, and, acting upon such determination, to appropriate funds in his custody to aid or defeat the measure, without sanctioning a principle which would open the door to all sorts of abuses. A receiver is not authorized, without the previous direction of the court, to incur any expenses on account of property in his hands, beyond what is absolutely essential to its preservation and use, as contemplated by his appointment.

The allowance for goods lost in transportation and for damages done to property whilst the road was in the hands of the receiver, was properly made. The earnings received were as much chargeable with such loss and damage as they were chargeable with the ordinary expenses of managing the road. The bondholders were only entitled to what remained after the charges of this kind, as well as the expenses incurred in their behalf, were paid.

The claim of the intervenor, Mr. Bullitt, for his professional services as an attorney and counselor-at-law, was a meritorious one. He had been retained in 1860 by the trustees to foreclose the first and second mortgages embraced in this suit, and was promised by them a retaining fee of $5,000. Upon his engagement he went from Philadelphia, the place of his residence, to Galveston in the State of Texas, and there filed a bill in the Circuit Court of the United States, to foreclose the mortgages, one of which was for fifteen hundred thousand dollars, and the other for seven hundred and fifty thousand dollars. Process was issued and served and issue was taken in the suit by the demurrer to the bill. The further prosecution of the suit was prevented by the outbreak of the civil war, during which the records of the court were destroyed by fire, and the trustees died. Upon the close of the war the intervenor took steps to continue the suit, and while engaged in correspondence with the representatives of the trustees on the subject, the present suit was brought by Cowdrey and others, bondholders, without consultation with him and without his assistance. Under these circumstances there can be no reasonable doubt of the justice of the claim, or that it was properly allowed by the master. Of its subsequent reduction to onehalf he does not complain, not having excepted to the decree in this particular or appealed from it to this

court.

The fact that the retainer was by the trustees in the mortgages, who have since died, and the present suit was prosecuted by the bondholders, the cestuis que trust, does not affect the position of the claim. The trustees, had they lived, would have been entitled to

retain, out of the funds received by them, sufficient to meet the claim. They would have had an equitable right, not merely to be reimbursed from such funds all reasonable expenses incurred, but also to retain from the funds sufficient to meet all reasonable liability contracted in the execution of their trust. From the time of the employment of the intervenor the funds derived from the mortgaged property were chargeable with the liability consequent upon the retainer; and it matters not whether those funds were obtained by the trustees, or, in consequence of their death or of the action of the court, by other parties having charge of the property. DECREE AFFIRMED.

REMOVAL OF CAUSES.

CAPE GIRARDEAU AND STATE LINE R. R. v. WINSTON ET AL.

United States Circuit Court, Eastern District of Missouri, January, 1877.

Before HON. JOHN F. DILLON, Circuit Judge, and HON. SAMUEL TREAT, District Judge.

1. PETITION FOR REMOVAL-TRUST DEED-NECESSARY PARTIES.-In a suit brought in a state court by the plaintiff corporation to set aside a deed of trust, made by its officers and another corporation of the same state, a removal of the cause to the United States Court was sought by the surviving trustee in the deed of trust and one of the bondholders under it. Held that, the latter corporation being a necessary party, and no final or effectual determination of the case made by the bill being possible without its presence, the petitioners could not have the cause removed under the act of 1866 (Rev. Stat. sec. 693, clause 2), as to them.

2. EFFECT Of Act of 1875-CONSTITUTIONALITY OF ACT OF 1866.-Per Treat, J.: That part of the act of 1866 embraced in clause 2 of sec. 639, Rev. Stat., is repealed by the act of March 3, 1875, or if this be not so, these provisions of the act must be held to be unconstitutional.

MOTION to remand to the Cape Girardeau Circuit Court.

This cause was instituted in the Cape Girardeau Circuit Court, to declare a mortgage void, so far as the property of the Cape Girardeau and State Line R. R. is concerned, being a road-bed situate in the counties of Cape Girardeau, Bollinger and Stoddard, and to remove the cloud upon the title of said company occasioned by the mortgage. The petition substantially sets out that the president of the Cape Girardeau and State Line R. R., by authority of the directors of the company merely, without any authority therefor conferred either by the charter or the general laws of the state, and without being thereto authorized by a vote of the stockholders of the company, joined with another corporation, namely, the Illinois, Missouri and Texas Railway Company, in the execution of a mortgage to secure $1,500,000 of the first-mortgage bonds of said last-named company, and which had and were to be issued by said last-named company from time to time, and which mortgage was made to said Frederick Winston and one David Hoadley, who has since departed this life. Winston is made a defendant to the bill of the Cape Girardeau and State Line R. R.; so also the Illinois, Missouri and Texas Railway Company; and also William J. Alt, a bondholder of some of the bonds issued by the last-named company, and numerous other known holders of said bonds, as well as all the unknown bondholders.

In the Cape Girardeau Circuit Court, Winston and Alt made a motion to remove this cause to this court, and it has, accordingly, been docketed here. The plain

tiff now moves the court to remand the cause to the Cape Girardeau Circuit Court.

Louis Houck, for the motion; Hitchcock, Lubke & Player, contra.

TREAT, J.:

This cause was removed into this court by Frederick S. Winston and William J. Alt. Plaintiff brought suit against the Illinois, Missouri and Texas Railway; also the trustees under the deed of trust named (Winston being the surviving trustee), and several corporations and individuals alleged to be holders of bonds secured by a deed of trust executed by the defendant corporation, to-wit: the Illinois and Texas Railway Company, upon the property of the plaintiff, pursuant to the alleged contracts and other writings obligatory in the petition set out and referred to. The said cause was removed by Winston and Alt, on the hypothesis that the act of 1866-that is, the second clause of section 639 of the Revised Statutes of the United States, governed their rights, and that they were within its terms.

It is apparent that, if the act of 1866, in the respect named, is still in force, the controversy, so far as it concerns said Winston, who is the trustee, can not be determined without the presence of the grantor in the deed-which deed is sought to be invalidated-nor can the case be determined as to the rights of Alt, who is one of the many bondholders secured by the deed of trust. Therefore, if the motion is to be controlled by the act of 1866, the cause must be remanded.

If this be not correct, it becomes necessary to decide whether the act of 1875 (18 U. S. St. 470) repeals the act of 1866, as reproduced in clause 2, section 639, of the Revised Statutes. Section 10 of the act of 1875 declares that "all acts and parts of acts in conflict with the provisions of this act are hereby repealed." Section 2 of the act of 1875 declares that "when, in any suit mentioned in this section, there shall be a controversy WHOLLY between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit," etc. If the purpose of this act (1875) was to restore what, obviously, is the constitutional limit of the jurisdiction of United States courts, by confining them to controversies which are wholly between citizens of different states, then the act of 1866 is repealed.

The strange anomaly presented by the act of 1866, whereby suits were "split," leaving one portion to be tried in a United States court, and the other in a state court, it may have been designed by the act of 1875 to remove from the statute-book. It will be observed that section 2 of the act of 1875 contemplates, as does section 1 of the same act, that the controversy must be "wholly" between citizens of different states. Under repeated decisions of the United States Supreme Court, prior to the act of 1866, all of the parties, plaintiff and defendant, had to fall within the provisions of the act of 1789. If the act of 1866 was constitutional, the strange result followed that, where a United States circuit court had no original jurisdiction, and could have none constitutionally, from the joinder of parties, it could acquire jurisdiction, despite the status of the parties, by removal from a state court. The constitution contemplated, as frequently decided, that the party plaintiff and the party defendant, whether including one or many persons, should be citizens of different states. How, then, consistent with its requirements, could a suit instituted in the state court, which, as there instituted, would be beyond federal jurisdiction, be removable into a United States court by changing the suit, through the splitting process, into two suits? If this were allowable, then fragments of suits would