corps, with the temporary rank, pay, and emolument of major in the quartermaster's department under the act of July 4, 1864. He held the latter position until October 7, 1865, when he was honorably mustered out of the service of the United States. It does not appear that there was any attempt, between March 27, 1865, and June 9, 1865, to fill the vacancy by another appointment.

In Blake v. U. S. 103 U. S. 231, it was said that "from the organization of the government, under the present constitution, to the commencement of the recent war for the suppression of the rebellion, the power of the president, in the absence of statutory regulations, to dismiss from the service an officer of the army or navy was not questioned in any adjudged case, or by any department of the government." See, also, McElrath v. U. 8. 102 U.S. 426; Keyes v. U. S. 109 U. S. 339; S. C. 3 Sup. CT. REP. 202. But the seventeenth section of the act of July 27, 1862, c. 200, (12 St. 596,) authorized and requested the president to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force, any officer for any cause, which, in his judgment, either rendered such officer unsuitable for, or whose dismission would promote, the public service. In accordance with these decisions it must be held that that act, if not simply declaratory of the long-established law, invested the president with authority to make the order of March 27, 1865, dismissing appellee from the service of the United States. No restriction or limitation was imposed upon his authority in that regard, until the passage of the act of July 13, 1866, c. 176, (14 St. 92,) repealing the seventeenth section of the act of July 17, 1862, and by which, also, it was declared that "no officer in the military or naval service shall, in time of peace, be dismissed from the service, except upon and in pursuance of a sentence of a court-martial to that effect, or in commutation thereof." That act did not go into effective operation, throughout the whole of the United States, until August 20, 1866; for, not until that day, was the war against the rebellion recognized by the president and congress as having finally ceased in every part of the Union. McElrath v. U. S. 102 U. S. 438.

In view of these adjudications, it is not to be doubted that the effect of the order of March 27, 1865, dismissing appellee from the service, was to sever his relations with the army. Thenceforward, and until, in some lawful way, again appointed, he was disconnected from that branch of the public service as completely as if he had never been an officer of the army. So that his right to pay, as captain and assistant quartermaster of volunteers, from the date of his dismissal from the service by Pres. Lincoln to the date of the order of Pres. Johnson, depends entirely upon the question whether an officer of the army, once lawfully dismissed from the service, can regain his position and become entitled to its emoluments by means of a subsequent order revoking the order of dismissal, and restoring him to his former position. This* question must be answered in the negative, upon the authority of Mimmack v. U. S. 97 U. S. 436. The death of the incumbent could not more certainly have made a vacancy than was created by Pres. Lincoln's order of dismissal from the service. And such vacancy could only have been filled by a new and original appointment, to which, by the constitution, the advice and consent of the senate were necessary; unless the vacancy occurred in the recess of that body, in which case, the president could have granted a commission, to expire at the end of its next succeeding session. Const. art. 2, § 2. It results that, as the appellee was dismissed from the army during the recent war, by a valid order of the president, and as he was not reappointed in the mode prescribed by law, he was not entitled, as an officer of the army, to the pay allowed by statute for the period in question.

The judgment is reversed, and the cause remanded, with directions to dismiss the petition.

(115 U. S. 29)

WHEELER and others v. NEW BRUNSWICK & C. R. Co.'

(May 4, 1885.)

In Error to the Circuit Court of the United States for the District of Connecticut.

*BLATCHFORD, J., dissenting. Justices FIELD, HARLAN, MATTHEWS, and myself are unable to concur in the judgment of the court in this case. When the directors of the railroad company came to consider, as a board, the transaction between Murchie and Wheeler & Co., they took it up, as their resolution states, as a sale by Murchie to Wheeler & Co., and confirmed it on behalf of the railroad company, as a sale of tons of 2,000 pounds. When Wheeler & Co. received Murchie's letter inclosing a copy of the resolution of the board, their letter of reply of February 28, 1880, states their understanding to be that the sale was not made subject to approval by the railroad company, and that the ton was 2,240 pounds, and that they look for the delivery of the rails in gross and not net tons. But the resolution of the board expressed the contrary view, as to the ton, and so the letter proceeds to say that Wheeler & Co. make no doubt that Murchie's understanding of the contract, as he had made it, is in accord with that of Wheeler & Co., and that, in so far as the resolution of the board fixed 2,000 pounds for each ton, it did so by an oversight on the part of the directors. This was a plain appeal to Murchie to bring his understanding of the contract to bear on the directors, to induce them to change their view and their statement of the contract in respect to the tons; and it was followed up by the closing words of the letter: "We hope to hear from you at your earliest convenience." The whole tenor of this letter was to throw the matter into the field of negotiation and arrangement, where the railroad company asked to have it put. That company plainly said to Wheeler & Co.: "If you regard the ton in this contract as a gross ton, we do not; and if you do, we do not think there is any contract. Wheeler & Co. replied: "We do and we think such was Mr. Murchie's view at the time, and that your directors have committed an oversight in their resolution which 'fixes' the ton at 2,000 pounds; but, in view of all this, we ask to hear from you at your early convenience about it." At that date old rails were $33.50 to $34 a ton of 2,240 pounds, without duty. The contract price was $30 and $28, without duty. The contract was a good one for Wheeler & Co., if they could then sell the rails, for future delivery, at the market rate of that date, and if the tons of the contract were 2,240 pounds. So it was important for them to know whether the railroad company would adhere to the view stated in the resolution or would recede from it; and they sought to learn. But they received no reply from Murchie or his company. They had a right to take the company at its word, and to act on its solemnly announced understanding of the contract. They did so, and refrained from turning the contract to any benefit by a resale of the rails. They were dealers in rails and bought only to resell. They did not buy to use otherwise. This the railroad company and Murchie knew.

Now, what is the finding of the circuit court? It is that Murchie in fact understood that the tons of the contract were 2,240 pounds, as did Wheeler & Co.; that the company, while not misunderstanding, intended to induce Wheeler & Co. to think it misunderstood, for the purpose of having Wheeler & Co. agree that the tons should be 2,000 pounds; that this conduct was "disingenuous;" and that the natural effect of a failure to reply to Wheeler & Co.'s letter was to create "great uncertainty" on the part of Wheeler & Co., and to cause "annoyance and pecuniary loss" to them. On these facts, it is held that when the market price of the rails has fallen to one-half of the contract

1 See majority opinion, ante, 1061.

price, the company can insist on compelling Wheeler & Co. to take the rails at the contract price, because the company then chooses to turn around and say: "The ton was and is 2,240 pounds. We were wrong all the time, and you were right; and we now reply to your letter, by saying that we did commit an oversight' in our resolution, as you suggested."

We can sanction no such view of the rights of the parties to a commercial transaction. The company made statements, in its resolution and letter, which the circuit court finds were not true, as to its understanding regarding the ton; and which that court finds it knew were not true; and which that court finds it intended should be regarded by Wheeler & Co. as honestly made; and which it is clear it intended Wheeler & Co. should act upon; and which they did act upon, to their injury. The actual ground of recovery by the company in this case is based on proof of the untruth of the assertions made by the company, followed by the proposition that Wheeler & Co. had no right to believe and rely on those assertions. Every element exists to estop the company from denying the truth of those assertions, and from insisting that Wheeler & Co. should not have relied on them. There is not a suggestion impeaching the good faith and fair dealing of Wheeler & Co. They were not guilty of any deceit or misrepresentation; they held out no false lights; they did not attempt to procure an advantage by an untrue statement of their understanding of the contract; they did not mislead the other party to his injury. Their letter to Murchie of February 28th, was a model of mercantile candor and fair dealing. It demanded a reply. The absence of a reply was no ground for supposing that the company had abandoned the position it took in the resolution, for Wheeler & Co. did not then know, what they learned afterwards, that the resolution was a sham and a false pretense.

The conclusion seems to us to follow inevitably, under the findings of the circuit court, that the company had lost its right to recover on the contract; and we therefore dissent from the judgment of affirmance.

(115 U. S. 41)

PIRIE and others, Partners, etc., v. TVEDT and another, Partners, etc.1

(May 4, 1885.)

In error to the Circuit Court of the United States for the District of Minnesota.

*HARLAN, J., dissenting. Mr. Justice WOODS and myself dissent from the opinion and judgment in this case. Although the action is, in form, against all of the defendants jointly, it is, practically, a separate one against each defendant; for, it is conceded, that, by the laws of Minnesota, it would not be wholly defeated if the plaintiffs failed to establish a cause of action against all of the defendants. They would be entitled to judgment against the defendant or defendants against whom a case was made. Had the suit been only against the defendants who are citizens of Illinois, as it might have been, the right of the latter to remove it into the circuit court of the United States would not be questioned. But it seems, by the present decision, that their right of removal has been defeated by the act of the plaintiffs in uniting with them, as defendants citizens of Minnesota, against whom, as is conceded, it was not necessary to introduce any evidence whatever in order to entitle the plaintiffs to a judgment against the other defendants. As in most, if not in all, of the states the local statutes dispense with the verification of pleadings in actions of tort, this convenient device will be often employed. When, for instance, a citizen of New York has a cause of action, sounding in damages, against a citizen of New Jersey, who happens to go within the jurisdiction of

1 See majority opinion, ante, 1034.

the former state, the plaintiff can join a citizen of New York as co-defendant, charging them jointly with liability to him for the damages claimed. And when the citizen of New Jersey asks a removal of the suit to the federal court, he is met with the suggestion that it is for the plaintiff, in his discretion, to sue him separately, or jointly with others. Upon his application to remove the cause, the state court may not institute a preliminary inquiry as to whether the plaintiff had, in fact, a cause of action against the defendant citizen of New York. It is not for that court, in advance, to determine the good faith of the plaintiff in making a citizen of New York a co-defendant with the citizen of New Jersey. The removal statutes make no provision for such an inquiry, and the state court, by the decision just rendered, must look alone to the cause of action as set out in the petition or complaint. When, in the case supposed, the evidence is concluded, and it appears that there is, in fact, no cause of action against the defendant citizen of New York, it is too late for the removal to occur; for, it must be had, if at all, before the suit could be tried in the state court. It seems to us that where the plaintiff, in a suit against several defendants in tort, is not required to prove a joint cause of action against all of them, but may have judgment as to those against whom he makes a case, there is, within the meaning of the act of congress, a controversy in the suit, which is wholly between the plaintiff and each defendant, and finally determinable as between them without the presence of the other defendants as parties in the cause. The suit therefore belongs to the class which, under the act of 1875, may be removed into the federal court. The decision in this case, it seems to us, restricts the right of removal, under the act of 1875, by citizens of states other than that in which the suit is brought, within much narrower limits than those etablished by previous legislation; and this, notwithstanding it was intended by that act to enlarge the right of removal, especially in respect of controversies between citizens of different states.

(115 U. S. 55)

RICHTER. JEROME and others.

PERPETUATION OF TESTIMONY.

(May 4, 1885.)

On Motion for a Commission to take Testimony de bene esse. J. P. Whittemore, for the motion. H. H. Wells, in opposition. WAITE, C. J. This motion is denied. Equity rule 70 has no application to this case, and the affidavits presented do not show such facts as render it necessary for this court to make any special order in the premises. Under section 866 of the Revised Statutes "any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matter that may be cognizable in any court of the United States." There is nothing in the motion papers to indicate that the appellant may not proceed under this statute to take and perpetuate his testimony, if he has reason to fear that it will otherwise be lost.

(115 U. S. 61)

STEWART and others, Partners, etc., v. DUNHAM and others, Partners, etc.,

and others.

(May 4, 1885.)

1. UNITED STATES COURT-JURISDICTION ONCE HAD NOT TO BE OUSTED BY THE ADMISSION OF NEW PARTIES.

After a United States court has assumed jurisdiction by reason of the litigants being residents of different states, the admission of new parties, as co-complainants, who are residents of the same state as the defendants, does not oust the United States court of jurisdiction.

2. SUPREME COURT-APPEAL-DIVISION OF JUDGMENT-AMOUNT LESS THAN $5,000. The decree of a court being several as to the different parties, so that one or more is affected to an amount less than $5,000, an appeal to the supreme court will not lie as to such parties.

3. DEED-FRAUD-Debtor and CREDITOR-ASSIGNMENT.

A debtor, in order to secure a creditor having assigned to a trustee, meantime retaining the goods for sale, which assignment is suspicious on its face, a subsequent deed by him, in which the trustee joins, in favor of the creditor, and a bill of sale of the property by him to the creditor are not to be looked upon as fraudulent without actual proof of fraud.

Appeal from the Circuit Court of the United States for the Southern District of Mississippi.

T. C. Catchings, for appellants. John F. Hanna and James M. Johnston, for appellees.

*MATTHEWS, J. The appellees, who composed the firms of Dunham, Buckley & Co., who were citizens of New York, and of Edwin Bates & Co., who were citizens of New York and South Carolina, filed their bill in equity, on July 14, 1881, in the chancery court of Jefferson county, Mississippi, against John W. Broughton, and Andrew Stewart, Andrew D. Gwynne, and P. H. Haley, composing the firm of Stewart Bros. & Co., and others, all of whom were citizens either of Mississippi or of Louisiana.

On September 16, 1881, the complainants filed a petition for the removal of the cause from the state court to the circuit court of the United States for that district, on the ground of citizenship, the amount in controversy being in excess of $500 in value, and presented a bond in conformity with the provisions of law. This was denied, notwithstanding which a certified transcript of the proceedings in the cause was filed in the circuit court on November 3, 1881, and that court proceeded thereon to final decree. The complainants in the bill were creditors severally of Broughton, and its object and prayer were to set aside a conveyance of a stock of merchandise, made by him to the defendants Stewart Bros. & Co., alleged to be fraudulent as against his creditors, and was filed on behalf of the complainants and all other creditors who might come in and share the costs of the litigation. After the cause was removed into the circuit court, the bill was amended by permitting Sigmond Katz, Jacob Katz, Nathaniel Barnett, and Selvia Barnett, partners, as Katz & Barnett, and John I. Adams and W. H. Renaud, composing the firm of John I. Adams & Co., creditors, respectively, of Broughton, to become co-complainants. The members of the firm of Katz & Barnett are described as "resident citizens of and doing business in the city of New Orleans, state of Louisiana, and in the city of New York, state of New York." The citizenship of? those who constitute the firm of John I. Adams & Co. does not appear.

On final hearing, on November 25, 1882, a decree was rendered in favor of the complainants, finding that the transfer and conveyance of his property by Broughton to Stewart Bros. & Co., described in the pleadings, was made with the intent to hinder, delay, and defraud the complainants and other creditors of Broughton, with the knowledge and connivance of Stewart Bros. & Co.. and the same was thereby canceled, set aside, and declared to be null and void. The decree proceeds as follows: "It appears to the court that the complain