DEFORD V. MEHAFFY.
foreign citizen the right peremptorily to elect to have his cause tried in the courts of the Union if he exhibited to the court proof by affi· davit that he feared he could not obtain justice by reason of local prejudice. The allegation of local prejudice cannot be traversed, and need not specify any grounds. When made and exhibited to the court in the form of an affidavit, it works absolutely and arbitrarily a removal. 'rhe election of the party to remove, and the statement of his fear and belief, verified by the oath of some person who reasonably knows the same, are, it seems to me, the sole requisites imposed by con· gress. To require more would restrict unreasonably the protection afforded by the law. The affidavit in behalf of a party in his absence, made by the attorney, as to a fact which the attorney might and almost necessarily must know, affords to the opposite party even a better security than that of the client could, and is the affidavit made by the party, within the meaning of the statute. The motion to remand is denied.
See Hobqy v. Allisol/" 13
401, and note, 405.
& Co. v.
lCircuit (Jourl, W. D. Tennfss6e.
REMOVAL OF CAUSE-INDISPENSABI.E PARTms-GARNIsHEES.
Although certain defendants were made parties to a biil In equity on the allegation that lhey were indebted kllhe principal defendant, and thus became real parties lot.he suit, yet it does not follow that they are indispensable parties to the controversy.
Stokely Ha.,1js, for the motion. H. W. JlcCorry, contra.
HA"IMOND, D. J. This is a second motion to remand this case, upon a ground not urged on the hearing of the first motion, which was overruled. Deford v. Mehaffy, 13 FED. REP. 481. It is now said that the defendants who were made parties upon .the allegation that they were indebted to the principal defendant are citizens of this state, as are the plaintiffs', and that this defeats our jurisdictiol1. The case of Hydev. Ruble, 194 U. S. 407, is relied upon. I thirik it has no. application. While the resident defendants to this bill in equity do not oGcupy precisely the attitude of mere garnishees at law. in the sense that the case can be said to be at issue before they
answer or there has been pro confesso against them, they are not, though proper parties, indispensable parties, and they have no such interest in the controvesy as makes this an inseparable controversy with citizens of the same state as the plaintiff, thereby defeating our jurisdiction. The judgment on the former motion does not lead to this result. It was there held that, unlike bare garnishees at law, these defendants were substantially parties to the record,-not quasi parties, but real parties,-entitled to answer, and the case was not ready for trial, so as to close the principal defendant's right of reo moval by a lapse of the first trial term, until they had answered, or there had been a pro confesBo. But it does not follow that they are indispensable parties to the controversy with the principal defendant, and as they clearly are not, the motion to remand must be overruled. So ordered.
Since the foregoing jUdgment, Mr. Justice HART,AN'S opinion in the case of Bacon v. Ri'ves, not yet reported,. (to appear in 105 U. S.,) has been receiVed, It fully sustains the above ruling. HAMMOND, D. J.
N ominalparties are not to be treated as parties, although made parties, to the suit, (L'ivingston v. Gibbons, 4 Johns. Ch. 94; James v. Thurston, ti R. 1. 428;} so, if a citizen of the state where suit is brought is not a necessary party, and his presence is not essential, the non-resident defendant may remove, although the former does not unite in the petitio" (Hatch v. Ohicago, R. I. & P. R. 00. 6 Blatchf.105; Ex parte Girard, 3 Wall. Jr. 26.3; Hadleyv. J)unlap, 10 OhioSt.l; Livingston v. Gibbons, 4 Johns. Ch. 94;) aM if all the defendants join but one, and that one is an unnecessary party, Lhe cause may be removed. (Oooke v. Seligman, 7 FED. REP. 263.) The right to a l'emoval is not affected by the fact that a defendant, a citizen of the Bame state, is a proper but not. an indispensable party to a separable controversy. Barney v. Latham, 103 U. S. 205. So, where a landlord, the real owner; assumes the defense, he makes himself a party, and, being the real defendant, may remove the cause if he has the requisite citizenship, «(Jreene v. Klinger, 10 FED. REP. 689; Wilber v. Nat. Bank, 12 Chi. Leg. N. 75;) and so where a tenant disclaims tItle and has thtt landlord substituted as defendant, (State v. Lewis, 12 FED. REP. 1, and note, p. 7; see .Allin v. Robinson, 1 Dill. 119; Belfe v.Rundle, 103 U. S. 222; OhafIrawv. Board 01 Liquidation, 11 FED. REP. 638.) Where a married woman, sole ownerof 8 patent, brings suit thereon for an infringement, her husband need not be a party. LorllZard v. Standard Oil 00. 18 BIatch!. 199. Where the real party to 8 controversy is clearly entitled to have his rights. passed upon by the courts of the United States, he is entitled to remove, although the the nominal party has no such right, (Oohens v. Virginia, 6 264,) and though the nominal party be a party on the record, ((Jreene v.
"See IlQW BacQ" ··· 6 Morr. Tralll···
DEVOE MANUF'O 00.
10 :FED. REP. 689.) So, in ejectment, the sole owner may remove, although his grantor, a citizen of the same state as plaintiff, is a party. Calloway v. Ore Knob Co. 74N. C.200. Officers of a corporation, joined as defendants in Aguity, but as to whom no relief is prayed, are nominal parties, such as will not defeat the right to a removal. Latch v. Chicago, R. I. &: P. R. Co. 6 Biatchf. 105; and see Pond v. Sibley, 7 FED. REP. 129; Nat. Bank 01 Lyndon v. Wells Riv. Manuf'g Co. 7 FED. REP. 750. State and county officers are not necessary parties to a controversy relating to the validity of bonds. Town of Aroma v. .Auditor, 2 FEU. REP. 33. Jurisdiction is not .defeated bf joining as nominal parties the executors of a deceased persoll, citizens of the same state as complainant. Walden v. Skinner, 101 U. S. 577. A garnishee is not a partv to the suit. as proceedinWl in garnishment process are but incident to the suit: Cook v. WhitneY,3 Woods. 715. See Ellis v.Si&son, 11 FED. REP. 353.-[ED.
(Di.tric' Oourt, L
n. Ne'IlJ Jf/I',eg.
The extent of the jurisdiction of the federal courts cannot. be restrictEd or enlarged by state legislation or agreement; but such legislation or agreement may give definiteness or certainty to questions which congress had necessarily left undetermined.
SAME-COMPACT BETWEEN STATES.
By the compact entered into in 1833 between the statcs of New York and New Jersey, approved by act of congress, June 28, 1834, (4 St. at Large, 711,) it was agreed that the state of New York has exclusive jurisdiction of and over all the waters of Hudson river, and· of and over the lands covered by the said waters, to the low-water mark on the New .Tersey shore; and the state of New Jersey has the exclusive right of property in and to the land under the water lying west of the middle of the river, and exclusive jurisdiction of and over the wharves, docks, and improvements made and to be made on the Jersey shore, and on vessels aground on said shore, or fastened to any such wharf or 'dock, (except as to quarantine regulations,) and the exclusive right of regulating the fisheries on the westerly side of the middle of the river.
3. SAME-DISTlUCT OF NEW JERSEY.
A vessel fastened to a wharf or pier on the western side of the Kill von Kul1 is within the exclusive jurisdiction of New Jersey. Denying 1'h.e L. W. Eaton, 9 Ben. 289.
Libel in personam. Scudder « Carter, for the Devoe Ma.nufacturing Company. Beebe, Wilcox.« Hobbs, for libelant. NIXOlj, D. J. A libel in personam was filed in the ab9ve case, alleging as the cause of. action a collision between the canal·boat T. W. Griffin, whereof the libelant was owner, and the tug-boat F. W.