, tween citizens of dUl:erent, states, and 'WhichpQanbe fully determined as betW,een theIn, tMU1eitper one, Qf more oithe' plaintiffs or in may remove said Buit into the circuitcollrt of ,theUnftoo State,s for;the , , The court" in :Barney v. Latham, found that there" was more than ane controversy in the suit" before it, and tbat as to that "entirely separate controversy, * **' with which the defendant in the other controversyhad no necessary coimection," the citizenship of the parties to it .was' such as tdwarrlint,removal. The facts shown in that case were substantially these, (omitting all mention of minor details, such as changes of interest by death ot;'otherwise:) Latham and six associates built a railroad under an agreement by which, in oonsideration of its constrtlction, the railroad company engaged to transfer to them the lands which it might receive from time to time as grants from the state. To the expense of construction Latham contributed one thirty-seventh, becoming thus entitled to one thirty-seventh of the land and its proceeds. The five other a -land company, to which the railroad company conveyed the greater part of the lands, and which managed and sold the same. Prior, to 4he creation of the land company, there had been sales of which Latham's five associates received the proceeds. Lathamsued the land company, praying to be adjudged the owner, of his the unsold lands, and to h,ave ,accouhting for his share of the proceeds of sales already made'bythe land company. He did not stop there, however, but also sued his' five associates for an accounting as to the proceeds. of sucl,1 sales as' they had made befor,e the land compal'ty was formed. The court held that these were causes of ac· tion which, under the settled rules of pleading, need not have been united in one suit, and that there was a separable controvel"SY. Since this decision, the second clause of the act, or section 2 of the act of 1872, haS' been repeatedly before the supreme court. In no cause, however, has that court found the facts such as to warrant the holding that there was a separable controversy in the particular case, while it has affirmed and repeatedly reaffirmed the proposition that, to entitle a party to removal under, that clause,. there must exist in such suit a separate and distinct cause of action; that the case must be one capable of separation into parts. Ayers v. Chicago, 101 U. S. 184; Blake v. McKim, 103 U. S. 336; Hydp. v. Ruble, 104 U. S. 407; Corbin v. Van Brwnt, 105 U. S. 576; Fraaer v· ·Tennison, 106 U. S.191, 1 Sup. Ct. Rep. 171; Winchesterv. Loud, 108 U. S. 130, 2 Sup. Ct. Rep. 311; Shainwald v. LewiJJ, 108 U. S.158, 2 Sup. Ct. Rep. 385; Ayres v. WiswalZ" 112 U. S. 187, 5 Sup. Ct. Rep. 90; Railroad Co. v. Ide, 114 U. S.52, 5 Sup. Ct. Rep. 735jRailroad ai, v. WilBDn,114 U. S. 60, 5 Sup.' Ct. Rep. 738; Pirie v. Tvedt, 115U. S. 41, 5 'Sup. Ct. Rep. 1034, !l161; Crump v. 'Thurber, 115 U. S. 56,5 Sup. Ct. Rep. 11M; Insuranceai. v. Huntington, 117 U. S. 280, 6 Sup. Ct. Rep. 733; Laidl'!Jv.'Huntingtmt.121 U. S. 179, 7 Sup. Ct. Rep. 855; Hedge Cd;v. Fuller, 122 U; S.535, 7 Sup. Ct. Rep. 1265; Mining Co.v. Canal 01.,.118 U. 8.264,6 Sup. Ct. Rep. 10M; Little v.GWbs, 118 U. S. 596,
.. Anp whe'ninariyslilt
shall be a controv'ersywhich' is wholly be-
7 Sup., Ct. Rep. 32; Brooks v. Olark, 119 U. S. 502,7 Sup. Ct. Rep. 301. Viewed in the light of these decisions, this suit presents no such distinct and separable causes of action, as werll found in Barney v. Latham. There is here but a single controYersy, : Is ,the will of J obn Anderson valid as a. will of real estate? and its characteris not changed merely by rearranging the parties to it. It does not become separable into parts because some of the defendants are interested jointly, and others are interested severally,. in ita determination. There may be a controYersy as to its validity anyone of the plaintiff's grantees and the heirs at law; butsuol:! controversy is, in all respects, identical with the between the plaintiff and the heirs at law. The controversy here is not separable, under the decisions, and the motion to remand is therefore ,granted.
J. B. PACE TOBACCO CO. and others.
(Oircuit Oourt, 8. D. NtIlJ York; December 14,1887.)
1. REMOVAL OF CAUSES-CITIZENSHIP-AcT OF MARCH 3,1887. Under the aqt of congress March 8, 1887, § 2, providing that a suit brought in any state court, wherein the controversy is between citizens of different states, and the amount in dispute exceeds, exclusive of interest and costs, the sum of be removed to the circuit court of the United States for the proper district by the, defendant or, defendantlJ therein, being non-residents of that state, "'defendants who are residents of the state in which suit is brought cannot remove, the' caus6', though plaintiff is a resident of another state. , 2. SAME-CITIZENSHIP,-AOT OF MARCH 8, 1887-SEPARABLE CONTROVERSY. Action was brought by a non-resident assignee of an insolvent debtor to compel the assignment, by a corporation, of stock belonging to the debtor. at a sale on execution levifld on the stock subsequent to the debtor'sassigninent, intervened,were made parties defendant, and asked for are· 'moval of the cause as to them, under act of congress March 3. 1887, \} 2, providingthat, "when there shall be a controversy which ill wholly between citizens of different states, and which can be fully determined as between them. then either one or more of the defendants may remove said suit," etc. Held that, the cause of intervenors being inseparable from that of the corporation, it could not be removed.
Reynolds « UQ,'l'7'ison, for plaintiff. North, Ward« Wagstaff, for defendants.
LACOMBE,J. The plaintiff, a resident and citizen of California, is. under decree of a California court, the receiver of the late firm of Esberg, .Baahman & Co. All the defendants are citizens and residents of New York. The firm of which plaintiff is receiver held and owned 273 shares of stoak of the J, B. Pace Tobacco Company. The original certific!J,te of stock is now held by plaintiff', with an assignment and ,power of uttorney from the assignor. He brought this action in the state court against tlle company, as sole defendant, to compel the transfer of ,theae sp.are8