(Circuit aourt,kP. idin0i8.
Where im action is brought by, a party to a non-negotiable contract for the 1llle ofms assignee, citilllenship, of, tJie ,artyto the contract, l>t his assignee, determines the 0 of the, '. "
On Motion to Remand. Millard R. Powers, for plaintiff. Doolittle &: McK('!!j, for defendant. J;, (oraUy.) '1'his'oasewas in the name of Richard W. Dimrnock et al. against DoolitUe, for the Use of Powers. Doolittle applied fora removal of the case on the gronnd that the controversy was between citizens of different states, charging in the petition for removal that the Dimmocks were citizens of New Jersey, and the defendant a citizen of Illinois; and the case was accordingly sent, to this court by the statecoU,rt. The plaintiffs now move to. remand, on the ground thaUhe party fOI!whose use the suit is instituted is a citizen court has no jurisdiction. of Illinois, and therefore the The question, I firid on e±amiriation,'is by no means a new one; ,it was raised in the case of Sere v. Pitot, 6 Cranch, 332, and quite fully discussed; bui the,oase which finally settled the principles involved in this case is that of Irvinev.LaW1'y, 14 Pet. 293, where a distinction is drawn between the class of cases where an official bond was given,-:-as, for in the case of McNutt v. Bland, 2 How. 9, -and suits brought for the use of the equitableowner.of a contract. A statute of Mississippi required that sheriff's bonds should be made payable to the governor of the state, and in the lattel;' case a suit was brought in the name of the governor of the state of Mississippi for the use of a citizen of Massachusetts, against the suret,ies upon a sheriff's bond. The question, of jurisdiction was raised, and the .court there held that in that classof cases, the bond being given for the benefit of whoever might be injured by the acts or negligence of the sheriff, the citizenship of the party for whose use the suit was brought determined the jurisdiction. Butin Irvine v. Lowry the former case was fully discussed, and it was held there that' where, as in the case now before the court, the suit is brought upon a non-negotiable contract or right of action, where the legal title still remained in the original creditor, so as to require the suit to be brought in his name, the citizenship of the plaintiff holding the legal title, and not that of the person holding the equitable title, to the demand, controlled the jurisdiction. It will be readily appreciated that: in suits on official bonds made payable to a public officer, who merely holds the bond for the benefit of persons who may become entitled. to a remedy upo;n it, the designation of- the person for whose benefit the suit is prosecuted is a necessary part v.29F.no.12-35 .
of the case; as, unless some specific person has been illjured, there would be no right of action. But ina case like this,whtJl'e a right of action rests in a non-negotiable contract or l,'ight of action, 'exPress or implied, there is no necessity, as a matter of pleading, for naming the partyequitably or beneficially in the suit, and the sU9h p.erson's name upon the reoordia,really Il:0 part of the case, has J;io, effect except to: act as demand is not owned by the plaintiff. The motion to remand is therefore overruled.
P. :Ry.Co'. and others.
OF NEW YORK, (CITY
and another tl. WABASH, ST. L. de ST. LoUIS and another, Inter.
.', (Oircuit Oourt, E. D. Mi8souri.
A .single sentence of a contract should not be construed as if standing alone, but with reference to. the context.
SAME-'-PtmLIO POLICy-RAILROAD COMPANIES.
Railroads perform a quasi public service, and, so far 'as vested property-interests are not impaired, such construction should be given to all contracts made by them as will make them most fully subserve the interests and weI· fare of the general public; . . . . 'l'he law favors compromises. and upholds them as considerations of the COVel18l1ts of the compromil;lingparties. 2
A party who bas been paid for a privilege cannot resist its enforcement on :the mere ground that he cannot compel the other party to continue in its en· joymentoWhere a court of equity takes jUrisdiction of a controversy, it is bound to continue 'that jurisdiction up to the final determination of the entire contro· versy.
EQUITY-JURISDICTION' . RAILROAD COMPANIES'-
SPECIFIC PERFORMANCE RIGHT OF WAY.
Where a railroad company binds itself by contract to allow other companies to use its right of way under suoh reasonable regulations and terms as mar be agreed, upon by such companies, - ,thereafter refuses to recognize the nghi .and ;; '
1 EdIted by Benj. F. Rex. Esq., of the St. Louis bar; tThelaw the settlement of disputed matters without recourse to litigation, Hart v, Gould, (Mich.) 28 N. W.Rep. 831; Wellsv. Neff, (Or,) 12 Pac. Rep. 84. Such settlement ofclaims asserted in good faith, the validity of Which has been doubted, constitutes a valid compromise which will not be disturbed in the absence of fraud, undue advantage, or mistake, Shipman v. District of Collimbia;·7 Sup. Ct. Rep. 134 ; Stimpson v. ,(¥aflS.) 6 N..E. Rep. 705;. AdaJPs v. Adams, O:owa,) :So N.. W. Rep. 795.; .Zimmer (Wis.) 29 N. W. Rep. 228, ill'Jd'note; and. which furili'shes a sufficient considerationfor the mutual promises of the parties, Lipsmeier v, Vehslage, ante, 175, and note; Dllohljo,m:v. (lriswold, (N. Y.) a N.E. Rep. 76; Ada.J;U8v. Adams, (Iowa,) 30 N. W. Rep. 795.