the hands of a receiver as having equities superior to those of bondholders. If such claims as are here in question could be allowed, there would seem hardly to be a limit to the allowance of demands which it might be as forcibly urged were superior in their equities to those of the secured creditors, but which could not be allowed upon any sound principle of equity, nor without substll,ntially impairing and perhaps destroying an otherwise valuable security. The demurrer to such pa:rts of the petitions as state causes of action against the railroad company accruing prior to the appointment of the receiver, is sustained. And it is not improper. to add that this ruling is supported by the practice of the learned circuit judge of this circuit, who has uniformly .disallowed claims against a receiver of the character of these.
(Circuit Court, D. Ma88achuseUs. Dccember'22, 1880.)
1875, § 2.-Suit was brovght by the lIferchants' National Bank of Boston to foreclose equity of redemption of thedefendant, Edward 'rhompson, of Charlestown, New Hampshire, in five shares of trust property held by the plaintiff as collateral security for the payment of the defendant's bond. The defendant Bv'erred in his answer that he had sold one of the shares to Henry M. Clarke, of Boston. The plaintiff thereupon amended its bill, and made Clarke a party defendant, who subsequently entered an appearance. Held, that such cause could not be removed under the second clause of section 2 of the act of 1875. 2,' SA.."'E-JuRIsDICTION-PRooF.-Held, f1trther, that it would be pre. sumed that Clarke was a citizen of Massachusetts. in the absence of any proof to the contrary.
In Equity. Russell Gray, for plaintiff. Jabez Fox, for defendant Thompson. LOWELL, C. J. This is a motion to dismiss or remand. The National Bank of Boston brought a bill in equity in the supreme judicial court of Massachusetts to foreclose
the e,quity of redemption ,of Thompsou, of town" in the state of Hampshire, in fi va' sha;res of, ,the trust property known as the Huntington.-avemie held by the plaintiff as collateral security for the payme,nt of ,said Thompson's bond for $20,000 and interest, which, had to the plaintiff by assignment from the, original holders thereof, and on which all but $1,000 of the principal, large arrears of interest, were overdue andp.npaid. The defendant Thompson appeared and answered, admitting most of the allegations of the bill, but averring that, under ,the peculiar terms of the trust deed of the lands, a pledgee or mortgagee of shares had no right of foreclosure; and, further, that he had sold one of the five shares to Henry ¥.Clarke, of Boston. Thereupon, June 15, the plaintiff amended its bill and made Clarke a party defendant, and on ,same day a subpcena was issued to said Clarke to appear on the first .' :\Ionday of 1880. September ,in the state.court a petition to remove 1jhe cause to averring that the bank is a corporation located 41' dqing busine,ss.)nthe ,#tate of Ma!,sachusetts,anq. ;tl¥lr petia tioner was, at the' commencement of the suit, and; 8,till eitizen of A bond was filed,; toO: \Vpich no is, taken. , Thesl1it was. entered in this court on' the first day.of this term, October 15, 1880, and I find copies of tLe bill, do not find any order of the supreme court con.cerning the removal, nor is one necessary, t'hoQgb it is usual. I do find a certificate of the clerk thatan.apPElarance was entered for Henry M. Clarke "during the April term, A. D. 1880," but whether before the petition for ,removal was filed, on the last day of that term, does not appear. The defendant Clarke, having been brought in .by amendment, is a party to the suit as much as if he had originally been named as a defendant. The first objection taken to the removal is that the defendant Thompson has adapted his petition to the first clause of section 2 of the act of 1875, (18 St. 470,) as if he were, the Bole defendant, taking no notict' of Clarke, while he now at.
; tempts to support the jurisdiction of this court under the sec,:>nd clause, contending that there is a controversy wholly between himself and the plaintiff. I understand the law to be that if, upon the whole record, the jurisdiction of the i}ourt can be sustained, the cause will not be remanded for such a misconception in the petition. Osgood v. Chicago, etc;, R. Co. 6 Biss. 330; Ruckman v. Ruckman, 1 FED. REP. 587: I have once, with the approval of the circuit justice, allowed such a petition to be amended in the circuit court in New Hampshire. It was a case which had been tried after its removal, and a verdict obtained, which, being set aside, the plaintiff discovered that the petition was defective in its allegations of citizenship. I did not feel at liberty to order . the plaintiff to amend his own writ, but I did permit defendant to amend his petition. This rule is reciprocal; for if the record shows, at any time, that the suit does not really and involve a controversy properly within the jurisdiction, the court is required to remand it. St. 1875, § 5; 18 St. 472. Is there a controversy in this suit wholly between the plaintiff and the defendant Thompson? I think not. The suit is to foreclose the equity of five shares in certain lands mortgaged by one person, at one time, for a single debt. When the plaintiff supposed that Thompson still owned all the shares, and brought suit against him, it was a controversy wholly· between them. If the plaintiff had not chosen to bring in Clarke, or if Clarke had disclaimed or had made default, and a final decree had been made for or against him, the controversy might once more be between these parties only. But it is the right of the plaintiff to have a single foreclosure of his single debt and mortgage. He is not bound to undergo the expense of two suits, upon whitt is to him a single cause of action. Clarke, I suppose, has a similar right to insist that a single suit shall settle his position relatively to the defendant Thompson. Thompson has no right to say that the controversy concerns only his four shares, if either the plaintiff or Clarke wish the controversy as to the whole five to be disposed of.
MERCHANTS NAT. BANK V. THOMPSON.
I have looked at many of the cases, but none of them resemble this case very closely. It is for the good sense of the court in each case to discover whether there is one distinct and independent controversy between citizens of different states. If there is, the cause may be removed by anyone of the party, no matter how many other controver-' sies may be involved in the same suit, between persons who could not be impleaded in the circuit court. It has been intimated, though not decided, that if defendants are jointly sued upon a joint and several contract, as trespassers for a joint trespass, that, inasmuch as each defendant is severally liable, anyone having the requisite citizenship might remove the cause, at least when. form of action was such that no question of contribution between the defendants could be effected by it. I have not seen even an intimation that they could sever when the plaintiff's right was single, and the defendants had, of themselves, for their own convenience, split up the subordinate titles. I am of opinion, therefore, that there fs not, at present, a controversy wholly between the plaintiff and the petitioner . Thompson. I have presumed, as both counsel did, that Clarke, who is described as of Boston, isa citizen of Massachusetts. This ought to appear affirmatively, if the jurisdiction of this court depended upon its affirmation; but, as the burden of proof is on the removing defendant, and it does not appear that Clarke is not a citizen of the place of his residence, no amend. ment is necessary in order to find that the jurisdiction is not made out. Cause remanded.
ROMANS t1. NEWTON
((Jircuit Oourt, D. Ma88achu8ettB. December 21, 1880.)
contract between a cit. izen of New Jersey and a citizen of Maine, called a conditional license, authorizing the grantee to enter upon the lands of the grantor, in the state of New Hampshire, and cut logs therefrom, contained this clause : "Said grantor reserves and maintains full control and ownership of all logs and lumber which shall be cut under this permit, wherever and however situated, until all matters and things appertaining to or connected with this license shall be settled and adjusted, and the sum or sums due, or to become due, for stumpage or otherwise, shall be fully paid." Held, that a bona fide pur· chaser of logs cut under this permit could not acquire a better title than the grantee. 2. BAME-TROVER-DAMAGES.-It was further provided that if any default should be made, the grantor should have full power and authority to take all or any part of said lumber, and to sell and dispose of the same at public or private sale, and, after deducting reasonable expenses, commissions, and all sums which were then due, or might become due, for any cause" herein expressed," should pay the balance to the grantees. Held, under this clause, that the grantor was not entitled to recover, in trover, of such bona fide purchaser, the whole value of the logs sold. 8. BAME-PAYM::ENT-WAIVER.-A memorandum upon the foot of an account settled between the grantor and grantee, acknowledging the receipt of certain accepted drafts, running from three to eight months, for the sum of the account, contained these words: "which, when paid, will be in full for the above." Held, that the acceptances were not taken in payment of the account, and therefore could have no effect as a waiver of the grantor's rights. L
LOGGING PERMIT-Bmu FIDE PuRCHASER·....:.A
Trover. Tort, in the nature of trover, for the conversion of certain logs, valued at about $14,000. In November, 1875, the plaintiff, a citizen of New Jersey, owning a large tract of land on, or near, the Connecticut river, in New Hampshire, made a contract with Ross & Leavitt, of Bangor, Maine, called a cpnditionallicense, by which he granted them permission to enter upon his land and cut logs of certain kinds during the then next logging season, which were to be Bcaled-that is, measured-by a Bealer appointed by the plaintiff, and the agreed stumpage was to be paid for by satisfactory paper, on