Opinion of the Court.

be taken as admitting any right of the plaintiffs to recover in this case. It being well understood by the plaintiffs that as to all facts necessary to be proved by the plaintiffs to entitle them to judgment they must make legal proof thereof, excepting only the value of the merchandise aforesaid."

Judgment was given for the company on facts found, and to reverse that judgment this writ of error was brought.

It was decided in Lee v. Watson, 1 Wall. 337, 339, that

"In an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed, and its amount, as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment at its conclusion, must be considered in determining whether this court can take jurisdiction on a writ of error sued out by the plaintiff."

Such is now the established rule. Schacker v. Hartford Fire Insurance Company, 93 U. S. 241; Gray v. Blanchard, 97 U. S. 564; Tintsman v. National Bank, 100 U. S. 6; Banking Association v. Insurance Association, 102 U. S. 121; Hilton v. Dickinson, 108 U. S. 65. In the present case, although the value of the goods is alleged to have been $5,010 and a judgment is asked for that amount, it appears distinctly, both in the petition of the plaintiffs and their reply to the answer of the defendant, that the insurance was for $4,000 and no more. The loss occurred at some time after February 26th, 1879, and the judgment was rendered January 4th, 1881, so that if the plaintiffs had recovered according to their claim as stated in the pleadings, their judgment, after interest was added to the amount of the insurance, would have been less than $5,000. Although it was agreed that the goods were actually worth more than $4,000 and the loss was total, it was one of the conditions of the insurance that the adjustment should be made upon the valuation specified in the policy. The actual value of the goods at the time of the insurance or of the loss is therefore unimportant.

We cannot accept the stipulation of the parties, that judg ment might be entered for $5,010, if the court should be of

Statement of Facts.

opinion that the plaintiffs were entitled to recover at all, as giving us jurisdiction. The dispute, as developed in the pleadings, was as to the liability of the company upon a contract of insurance for $4,000, and no more. Arrangements between parties contradictory to their pleadings, and so evidently made for the purpose of enlarging the case sufficiently to bring it within the jurisdiction of this court, cannot be recognized here. It follows that the writ should be dismissed for want of jurisdiction; and it is so ordered.

Dismissed.

CABLE v. ELLIS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

Submitted January 14th, 1884.-Decided February 4th, 1884.

Removal of Causes.

After a suit in equity involving title to real estate and priority of lien had been long pending in a State court, and the highest court in the State had decided some of the points in controversy, and had remanded the cause to the court below to have other issues determined. A became interested in the property by grant from one of the parties to the suit, and intervened in it by leave of the State court to protect his rights at a time when the right of removing the cause from the State court to the Federal court had expired as to all the parties: Held, that under the circumstances the intervention of A was to be regarded as incident to the original suit ; and that he was subject to the disabilities resting on the party from whom he took title; and that the time for removal having expired before he intervened, his right of removal was barred by that fact.

Bill in equity to determine priority of liens upon real estate in Illinois and for other relief. The only question decided was as to the right of removal of the cause from a State Court to a Circuit Court of the United States. The facts which make up the case are stated in the opinion of the court.

Mr. Charles M. Osborn for appellant.

Mr. George W. Spahr for appellee.

inass

Opinion of the Court.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This is an appeal from an order of the Circuit Court remanding a suit removed from a State court. From the confused of pleadings, exhibits, proofs, orders, and decrees, making a volume of more than five hundred printed pages, sent here as a transcript of the record below, and the reports of the decisions of the Supreme Court of Illinois in Sumner v. Waugh, 56 Ill. 531, Cable v. Ellis, 86 Ill. 525, and Ellis v. Sisson, 96 Ill. 105, referred to on both sides as part of the case, we have, with the help of the briefs of counsel, extracted the following facts, which, in our opinion, are decisive of the present controversy:

On the 3d of June, 1858, Thomas B. Ellis bought of John M. Waugh and Henry B. Ellis certain lands and mill property in Illinois. Waugh and Henry B. Ellis were at the time indebted to Thomas B. Ellis to the amount of $8,000 or thereabouts, and the mill property was encumbered by a mortgage to Benjamin T. Sisson for $9,280. Thomas B. Ellis paid for the property by releasing the debt due himself, assuming the mortgage to Sisson, and giving his own notes to Waugh and Henry B. Ellis, secured by mortgage on the property for $14,984.54. On the 30th of September, 1858, Thomas B. Ellis entered into a written contract with Sisson and John B. Rathbun for the sale, release, and conveyance of "all his paid in interest" in the property, for which the purchasers were to pay as in the agreement specified, including with the rest such a sum to Thomas B. Ellis personally as from authenticated bills it should appear he had "paid in." To secure the payment of such sum as should be found to be due him a mortgage was to be given on the property. Under this contract possession was delivered to the purchasers.

Disputes having arisen as to the amount of the "authenticated bills," Thomas B. Ellis, on the 21st of March, 1861, filed a bill in chancery in the Mercer County Circuit Court to enforce a specific performance of the contract. To this bill Waugh, Sisson, and Rathbun were made defendants, and the prayer was that the mortgages of Waugh and Henry B. Ellis to Sisson, and Thomas B. Ellis to Waugh and Henry B. Ellis

Opinion of the Court.

might be cancelled, and that the amount of purchase money due Thomas B. Ellis from Sisson and Rathbun might be ascertained and adjudged to be the paramount lien on the property in the hands of the purchasers. As to Waugh, the averments were, in substance, that he was "in fact and in equity" a purchaser of the property with Sisson and Rathbun, and that by the terms of the contract, the notes and mortgage of Thomas B. Ellis, then held by Waugh, and the mortgage to Sisson, were to be cancelled and a first lien on the property given to Thomas B. Ellis as security for the purchase money to be paid to him.

In 1862 Sisson assigned his notes and mortgages to Austin, Sumner & Co., and in 1864 they began a suit for foreclosure in the Mercer County Circuit Court, making Waugh, Sisson, Thomas B. Ellis, and Henry B. Ellis defendants. Thomas B. Ellis answered, and also filed a cross-bill, in which he set up his sale of the property and a cancellation under that sale of the mortgage to Sisson before the transfer to Austin, Sumner & Co. The Circuit Court decreed against Austin, Sumner & Co., and dismissed their bill, but upon appeal to the Supreme Court, the decree dismissing the bill was reversed in 1869, but the lien of Austin, Sumner & Co. was postponed to that of Thomas B. Ellis for the purchase-money under his contract of sale. As to the mortgage of Thomas B. Ellis to Waugh and Henry B. Ellis, the language of the opinion is as follows:

"This contract postponed also the mortgage in question to the mortgage executed by T. B. Ellis to Waugh and H. B. Ellis. They were not parties to it, and could not be bound by its provisions. Although the contract seems to contemplate that their mortgage was also to be cancelled, it does not appear how or in what mode, and not being parties to the agreement, they cannot be affected by it. It is, therefore, the first lien on the property, and must be so held. The whole case, somewhat complicated, it is true, shows a contest between equities. That the complainants have some which should have been regarded by the Circuit Court and decreed to them, we cannot doubt. The bill should not, therefore, have been dismissed. In order that the equities of the complainants may be enforced, it seems necessary that there should be a foreclosure of the Waugh and Ellis mortgage.

Opinion of the Court.

The pleadings are not framed with a view to any relief as to the Waugh and Ellis mortgage, or as to any substitution of the complainants to the rights of Waugh in the Waugh and Ellis mortgage. Leave will be given to amend the pleadings as the parties may be advised, and to take further proofs." Sumner v. Waugh, 56 Ill. 541, 542.

The case was then remanded for further proceedings in conformity with the opinion, in which suggestions were made as to what should be done if the Waugh and Ellis mortgage should be found to be a valid and subsisting lien.

After this decision Philander L. Cable took from Waugh an assignment of the note and mortgage of Thomas B. Ellis to Waugh and Henry B. Ellis, and in 1872 began a suit in the Mercer County Circuit Court for a foreclosure. To this suit Thomas B. Ellis, Sisson, and Austin, Sumner & Co. were made defendants. Thomas B. Ellis answered, setting up his contract of sale, and claiming a cancellation of the mortgage thereby.

On the 6th of May, 1873, an order was entered in the Circuit Court consolidating the three suits, to wit, that of Thomas B. Ellis, that of Austin, Sumner & Co., and that of Philander L. Cable. From that time these three suits were proceeded in as one and involving the same general matter. On the 10th of June, 1875, the Circuit Court entered a decree establishing the claim of Thomas B. Ellis as against Cable. From this decree Cable appealed to the Supreme Court, where, in 1877, after holding that the Sisson mortgage could not be enforced as against Thomas B. Ellis, it was said in the opinion delivered :

"It was doubtless the intention of the contract of September 30th that the latter mortgage also [that to Waugh and Ellis,] as well as the former [that of Sisson] should be cancelled, so as to give T. B. Ellis a superior lien upon the property for the security of the payment of his paid-in interest, and for the carrying out of such intention, and being impressed with the justice of the claim of T. B. Ellis that he should have such security, we have anxiously sought for some satisfactory ground upon which we might rest the support of such a claim, but we have not been able to discover any. -The written contract of September