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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 maile; 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 linderstanding 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 affrmance.

(115 U. S. 41) Pirie and others, Partners, etc., 0. TVEDT and another, Partners, etc. 1

(May 4, 1885.) In error to the Circuit Court of the United States for the District of Min. nesota.

*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 Ilinois, 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 me

ion, 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 discre. tion, 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 bad, 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 is 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 cach 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 0. JEROME and others.

(May 4, 1885.) PERPETUATION OF TESTIMONY.

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 lias reason to fear that it will otherwise be lost.

(115 U. S. 61) STEWART and others, Partners, etc., 0. DUNHAM and others, Partners, etc.,

and others.

(May 4, 1885.) 1. United STATES COURT-JURISDICTION ONCE HAD NOT TO BE OUSTED BY THE ADMIS

SION 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 or 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 bim 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 denieil, 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 hy 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.

ants, at and before making of said pretended transfer and conveyance, were, and still are, creditors of the said John W. Broughton, and that the amount due each of them respectively, including interest to this date, is as follows: Dunham, Buckley & Co., ten thousand two hundred and twenty-two 50-100 dollars, ($10,222.50;) Edwin Bates & Co., four thousand three hundred and ninety-one 8-100 dollars, ($4,391.08;) John I. Adams & Co., seven hundred and six 37-100 dollars, ($706.37;) and Katz & Barnett, nine hundred and thirty 82-100 dollars, ($980.82.) Total, sixteen thousand two hundred and fifty 77-100 dollars, ($16,250.77.) 'It appears to the court that the defendant John W. Broughton is insolvent, and without property or means, and that the defendants Stewart Bros. & Co. had in their hands and possession, at the time of filing the bill of complaint in this cause, and still have, property, assets, and money, being the same fraudulently transferred and conveyed to them by the defendant John W. Broughton, as aforesaid, and the proceeds of the same, amounting to a sum largely in excess of the said sum of $16,250.77, due complainants as aforesaid. It is therefore ordered, adjudged, and decreed, that the defendants John W. Broughton, and Andrew Stewart, Andrew D. Gwynne, and P. H. Haley, composing the firm of Stewart Bros. & Co., do pay to the complainants the above-mentioned sums respectively due them, with interest thereon at the rate of six (6) per cent. per annum from this date until paid, that is to say: To Dunham, Buckley & Co., ten thousand two hundred and twenty-two 50-100 dollars, ($10,222.50); to Edwin Bates & Co., four thousand three hundred and ninety-one 8-100 dollars, ($4,391.08;) to Katz & Barnett, nine hundred and thirty 82-100 dollars, ($930.82;) and to John I. Adams & Co., seven hundred and six 37-100 dollars, ($706.37;) for which amounts and costs executions in favor of said creditors respectively may issue as at law." The appeal is from this decree.

The appellants assign as error that the court proceeded to decree, after admitting Katz & Barnett and John I. Adams & Co. as co-complainants, alleging that, as the case then stood, it was without jurisdiction, as the controversy did not appear to be wholly between citizens of different states. This, of course, could have furnished no objection to the removal of the cause from the state court, because at that time these parties had not been admitted to the cause; and their introduction afterwards as co-complainants did not oust the jurisdiction of the court, already lawfully acquired, as between the original parties. The right of the court to proceed to decree between the appellants and the new parties did not depend upon difference of citizenship; because, the bill having been filed by the original complainants on behalf of themselves and all other creditors choosing to come in and share the expenses of the litigation, the court, in exercising jurisdiction between the parties, could incidentally decree in favor of all other creditors coming in under the bill. Such a proceeding would be ancillary to the jurisdiction acquired between the original parties, and it would be merely matter of form whether the new parties should come in as co-complainants, or before a master, under a decree ordering a reference to prove the claims of all persons entitled to the benefit of the decree. If the latter course had been adopted, no question of jurisdiction could have arisen. The adoption of the alternative is, in substance, the same thing. It is, however, objected by the appellees Edwin Bates & Co., Katz & Barnett, and John I. Adams & Co. that, as to them respectively, this court has no jurisdiction of the appeal, for the reason that the decrees in their favor are several, and that the amounts adjudged to be paid to them respectively do not exceed the sum or value of $5,000. On the authority of Seaver v. Bigelows, 5 Wall. 208; Schwed*v. Smith, 106 U. S. 188; S. C. 1 Sup. CT. REP. 221; Farmers' Loan & T. Co. v. Waterman, 106 U.S. 265; S. C. 1 Sup. Cr. REP. 131; Adams v. Crittenden, 106 U. S. 576; $. C. 1 SUP. Ct. Rer. 92: Hawley v. Fairbanks, 108 U. S. 543; S. C. 2 SUP. CT. REP. 846; and Fourth Nat. Bank v. Stout, 113 U, S. 684; S. C., ante, 695, the motion

9

to dismiss the appeal as to all the appellees, except Dunham, Buckley & Co., must be gra ited.

As to the remaining appellees, the cause must be disposed of on the merits. An outline of the transactions involved in the controversy is as follows: Broughton carried on business as a merchant in Rodney, Mississippi, and became indebted, by reason of advances made on account of cotton purchases, to the appellants Stewart Bros. & Co., merchants in New Orleans, in about the sum of $34,000. Being pressed for payment, on May 26, 1881, he gave his two promissory notes therefor, payable one in six, the other in eight, months after date, with interest at the rate of 8 per cent. per annum; and, to secure the payment of the same, a written instrument of that date was executed, by which Broughton conveyed to C. J. Pintard all his stock of merchandise and assets and property, in trust, in case he should make default in the payment of the principal or interest of the notes, to sell the property conveyed, at public auction, for cash, to the highest bidder, at the request of the holder of the notes, on 20 days' notice. The instrument also contained the following provision: “It is understood and agreed between the parties hereto that the said party of the first part shall have the right to carry on the business as heretofore, for the purpose of selling off the stock of goods and col. lecting in the notes and accounts due and to become due, and, in order to enable said party of the first part to carry on said business, the said parties of the third part hereby agree to advance to him the further sum of one thousand dollars, which last amount is also understood and agreed to be included in and covered by this deed in trust, and to be due and payable six months after this date, the maturity of the first note.” This paper, executed by all the parties, was recorded on May 27, 1881.

On June 13, 1881, having been advised that this conveyance was probablyg ineffectual and void as to other creditors, by reason of its form and contents, Broughton and Pintard, the trustee, united in a conveyance of the same property unconditionally to Stewart Bros. & Co., in satisfaction of the debt represented by the notes, and the latter took possession of the property conveyed; and on the same day Broughton executed also a bill of sale, for the same property, upon the same consideration, to Stewart Bros. & Co.

It is contended by the appellees that these conveyances, the last as well as the first, a fraudulent against creditors, per se, and void on their face; and such was the ground of the decree appealed from, as stated in the opinion of the court. To this we cannot accede. Assuming that the conveyance to Pintard, in trust, was of that character, according to the law of Mississippi, it does not follow that the subsequent sale and transfer, followed by delivery of possession, is tainted by the vice of the original transaction. The objection we are considering assumes that the whole transaction, from the beginning, was free from actual and intended fraud, and was meant to be a mode of securing and paying an actual debt, in good faith, without any design injurious to other creditors, beyond that implied in obtaining a preference, which is not forbidden by law. In this view, the admission that the conveyance to Pintard was illegal does not affect the subsequent sale, which, on the contrary, being free from objection, on account of its own nature and form, served to remedy the defects in the original security. It was quite competent for the parties to rescind and cancel the first conveyance, and unite in the execution of another, free from objection. This is all they did.

It is further urged, however, that the sale to Stewart Bros. & Co., however formally correct, and technically legal on its face, was made in pursuance of a design, participated in by both parties, actually to hinder, delay, and defraud the creditors of Broughton. On this point we have examined and weighed the evidence with attention and care, and are of opinion that it does not sufficiently establish the case of the appellees. It would not be proatable to rehearse the testimony, and point out the facts and circumstances relied on,

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