*235

October, 1853; that on the twenty-fourth of December, 1853, Thomas presented his location to the register of the United States land district in which the lands were situated; that the register accepted and approved the location; that afterwards Thomas filed with the register the warrant under which his location was made; that the register wrote the word "surrendered" across the face of the warrant, and gave to Thomas a certificate setting forth these facts; that Hastings has been duly invested with all the rights of Thomas under his location; that on the fourteenth of February, 1857, Jackson, one of the defendants, with full knowledge of all that had been done by Thomas, located other warrants on the same land, and, on the eighteenth of March, 1863, procured a certificate to that effect from the land-office of the United States, under which a patent was issued to him by the state; that the lands were "listed" to the state by the United States on the tenth of February, 1870; and that on the eighth of September, 1871, the commissioner of the general land-office canceled the location of Jackson, and returned to him the warrants which had been used in making that location.

The prayer was "that the said defendants be decreed to deliver up the said patent to be canceled, and that they and each of them, and every person claiming by, through, or under them, or either of them, be perpetually enjoined and restrained from setting up any claim or title to the said premises under and by virtue of said alleged patent," and for general relief.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, in this: "The performance of the acts stated in the complaint did not make valid selection of the premises mentioned in the complaint under said school-land warrant No. 133. No valid location of said warrant is shown, nor any valid selections of land under it. The allegations in the complaint as to the effect of the pretended locations, and the rights of I. Thomas and S. C. Hastings, are mere conclusions of law, and not allegations of facts. The complaint shows upon its face that this action is barred by the statute of limitations of this state. The facts stated show that defendant Jackson was entitled to the patent when it was issued to him." The court of original jurisdiction sustained the demurrer and dismissed the complaint; and that judgment was affirmed by the supreme court of the state on appeal. This writ of error was brought to reverse the judgment of the supreme court.

The first question which presents itself on this record is as to our jurisdiction. The suit, although in form by the state to cancel its patent to Jackson, was in reality between Hastings and Jackson to determine which of the two had in equity the better right to the land in controversy by reason of the locations of school-warrants under which they respectively claimed. There was no dispute about the grant from the United States to the state. That was conceded, and both parties claimed under it. The controversy related only to the alleged conflicting grants of the state. Hastings claimed that Thomas, whose title he had, was the first locator, and therefore, under the legislation of the state, in equity the first grantee of the state, while Jackson claimed that the Thomas location was invalid, and that, consequently, his own title was the best. Both parties thus claimed under the state, and neither asserted title from the United States except through the state. It is, indeed, averred in the complaint that the location of Thomas was accepted and approved by the register of the United States land-office, and that Jackson also obtained a like certificate, which was afterwards canceled by the commissioner of the general land-office, but it is not pretended that either of these things was done by the government officials under the authority of a law of the United States. The act of 1841 provided for a grant by the United States of lands to be selected by the state in such manner as the legislature should direct, and the legislature did, by the act of 1852, in effect, direct that a location of warrants by the holder should operate as a selection by the state of the particular tract located as

part of the lands granted. That perfected the right of the state to the land under the act of congress, but gave the locator no rights as against the United States. By the express provisions of the state statute under which he proceeded, his location was to be made "in behalf of the state," and he was to look to the state for his patent. What was done by the officers of the United States only showed that the state had, through a holder of one of its school-* warrants, made a selection of the particular tract located as part of the lands granted by the act of 1841. This gave the state a right to the title under the act of congress, but the warrant-holder's claim on the state for a conveyance of the land to him grew out of the state statute, and not out of the certificate of the United States officials.

Under these circumstances, the case is clearly governed by Romie v. Casanova, 91 U. S. 379, and McStay v. Friedman, 92 U. S. 723, in which it was decided that in a suit for the recovery of lands, where both parties claimed under a common grantor whose title from the United States was admitted, this court had no jurisdiction for the review of the decisions of a state court upon questions relating only to the title acquired by the several parties, under their respective grants, from the common grantor, and which were not in themselves of a federal character.

Some reliance was had in the argument on the act of congress approved July 23, 1866, c. 219, (14 St. 218,) "to quiet land titles in California," but that act was not referred to in the complaint, and, besides, it purports only to confirm the title of the state, which, in this case, is perfect without it. No attempt is made in that act to provide for the settlement of the rights of conflicting claimants under the state. Congress contented itself with the confirmation of the state's title, and left all who claimed under that title to their remedies in the courts or other tribunals provided by law for that purpose. It follows that we have no jurisdiction of this case, and it is accordingly dismissed.

(112 U. S. 229)

HANCOCK Ɗ. HOLBROOK (now Mrs. Nicholson) and others.1

(November 17, 1884.)

1. REMOVAL OF CAUSE-IF SUCH REMOVAL FOUND IMPROPER ON APPEAL, COURT WILL NOT CONSIDER THE MERITS.

When a suit, which has been removed from a state to a federal court, is brought to the supreme court by appeal or writ of error, and it does not appear on the face of the record that the citizenship of the parties was such as to give the circuit court jurisdiction upon the removal, the judgment or decree of the circuit court will be reversed without inquiry into the merits, and the cause sent back with instructions to remand it to the state court, from which it was improperly removed.

2. SAME-ONE DEFENDANT OF MANY-CITIZENSHIP IN INSEPARABLE CONTROVERSY.

The fact that one only of several defendants is a citizen of a state other than that of the plaintiff, the controversy not being a separable one, is no ground for removal of a cause to a federal court.

3. SAME-IMPROPER REMOVAL-CONSENT OF PARTIES-COSTS IN SUCH A CASE.

An improper removal of a cause having been made by consent of the parties, and without the attention of either of the courts being called to the jurisdictional facts, the parties should share the costs in the supreme court.

Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

Eppa Hunton, Jeff. Chandler, J. D. Rouse, and Wm. Grant, for appellant. Thos. J. Semmes and Robert Mott, for appellee.

*WAITE, C. J. This suit was brought in a state court of Louisiana on the twenty-fifth of November, 1876, by Edward C. Hancock, a citizen of Louisiana, against Eliza Jane Holbrook, George W. Nicholson, R. W. Holbrook,

18. C. 9 Fed. Rep. 353.

•230

231

and Chas. T. Howard, all of the city of New Orleans, as stated in the petition, to establish an alleged title of Holbrook to 20-51 parts of all the property, rights, assets, and good-will of the "New Orleans Picayune Newspaper & Printing Establishment," then in the possession of the defendants at New Orleans. All the defendants were served with process by the sheriff of the parish of Orleans. On the thirteenth of December, 1876, Nicholson filed in the state court a petition for the removal of the suit to the circuit court of the United States for the district of Louisiana. In this petition he stated that he was a citizen of the state of Mississippi and Hancock a citizen of the state of Louisiana. No mention was made of the citizenship of the other defendants, and no other ground of removal was given than that Hancock and Nicholson were citizens of different states. It does not appear that this petition was ever formally presented to the state court. The transcript only shows that it was filed. On the nineteenth of December, 1876, after the date of the filing of the petition for removal, the petition in the suit was amended by adding the name of Richard Fitzgerald, a citizen of Louisiana, as a defendant, and a summons was thereupon issued to bring this new defendant into court.

On the eleventh of December, 1877, nearly a year after the petition for removal was filed, the clerk of the state court made a transcript of the record and proceedings in that court, and annexed his certificate of its correctness. On the same day the attorney of Hancock indorsed on the transcript the following: "I consent, on behalf of plaintiff, that this shall be considered a correct transcript of the record of the suit of E. C. Hancock v. Mrs. E. J. Holbrook, No. 23,653, Third district court, parish of Orleans, the same to be filed in the United States circuit court, in accordance with the order to trans. fer." The transcript, thus certified and indorsed, was filed in the circuit court of the United States on the thirteenth of December, 1877. No motion was ever made to remand the cause, and on the tenth of January, 1878, proceedings were begun in the cicuit court, at the instance of the attorney for the plaintiff. Answers were afterwards filed by the defendants and testimony taken, upon which the parties went to a hearing, which resulted in a decree, on the thirteenth of March, 1881, dismissing the bill. From this decree Hancock appealed.

It was decided at the last term, in Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, S. C. 4 Sup. CT. REP. 510, that when a suit which has been removed from a state court is brought here by appeal or writ of error, and it does not appear on the face of the record that the citizenship of the parties was such as to give the circuit court jurisdiction upon the removal, the judgment or decree of the circuit court will be reversed without inquiry into the merits, and the cause sent back with instructions to remand it to the state court from which it was improperly removed. This is such a case. All the defendants except one were citizens of the same state with the plaintiff, and there is no pretense of a separable controversy. Under these circumstances the cause was not removable, (Removal Cases, 100 U. S. 457,) and the circuit court, consequently, had no jurisdiction. In the same case it was also de'cided that upon such a reversal*this court may make such order in respect to costs of the appeal or writ of error as justice and right shall seem to require. In that case the removal was made on the application of the appellant, and although a judgment of reversal was entered, costs were given against him. It appeared there, however, that the appellee, after the case got to the circuit court, moved that it be remanded to the state court, and only remained in the circuit court because his motion was overruled. He submit. ted to the jurisdiction of the circuit court upon compulsion.

Here the appellee petitioned for the removal. The cause was not, however. docketed in the circuit court until a year after the petition for removal had been filed in the state court, and it nowhere appears that any action was taken

in the latter court in reference to its own jurisdiction. Neither does it appear by which party the case was docketed in the circuit court. It does appear, however, that the appellant consented to the docketing, and that he made no effort whatever to have the case remanded. He was the first to move in the circuit court, and there is nothing to show that he remained in that court against his will. We are strongly inclined to the opinion that the removal was effected with the consent of both parties, and without the attention of either of the courts having been called to the jurisdictional facts. Under these circumstances each party should pay one-half the costs in this court.

The decree of the circuit court is reversed, and the cause returned to that court with instructions to remand it to the state court from which it was improperly removed, and with liberty to make such order as to costs accruing in the circuit court after the removal as equity and justice may require. A judgment will be entered against the appellees for one-half the costs in this court.

(112 U. S. 227)

BRADSTREET Co. v. HIGGINS.

(November 17, 1884.)

JURISDICTION OF SUPREME COURT-AMOUNT IN DISPUTE.

The jurisdiction of the supreme court for the review of the judgments and decrees of the circuit courts, in so far as it is affected by the $5,000-limitation, depends on the value of the matter in dispute in the supreme court, and it is the actual matter in dispute, as shown by the whole record, and not the ad damnum alone which governs.

In Error to the Circuit Court of the United States for the Western District of Missouri. On motion to dismiss.

W. Hallett Phillips and C. L. Dobson, for motion. Henry Wise Garnett, for opposition.

*WAITE, C. J. This record shows that Higgins, the defendant in error, brought suit against the Bradstreet Company for $8,000, the price and value of certain property of his which the company had appropriated to its own use. The answer of the company contained (1) a general denial of the allegations of the petition; (2) a counter-claim of $1,104.18 for moneys collected by Higgins for the use of the company and not paid over; and (3) a counter-claim of $1,833.42, the expenses of the office of the company at Kansas City over its receipts, which Higgins, as superintendent of the office, was bound to pay. Higgins in his reply admitted the first counter-claim, and consented to its being applied as a credit upon the demand for which his suit was brought. As to the second counter-claim, his defense was, in effect, that the legitimate expenses of the office at Kansas City while he was superintendent, which he was bound to pay, did not exceed its legitimate receipts. Upon these issues a trial was had, which resulted in a verdict and judgment in favor of Higgins for $3,333.92. Upon the trial a bill of exceptions was taken by the company, from which it appears that evidence was introduced by the company "tending to show that the legitimate expenses of the Kansas City office exceeded its legitimate receipts, during the time plaintiff acted as its superintendent, in the sum of $61.10, including plaintiff's salary of $100 per month as expenses." This writ of error was brought by the company, and Higgins now moves to dismiss because the value of the matter in dispute does not exceed $5,000.

In Hilton v. Dickinson, 108 U. S. 165, S. C. 2 SUP. CT. REP. 424, it was decided, on full consideration, that our jurisdiction for the review of the judgments and decrees of the circuit courts in this class of cases depends on the value of the matter in dispute here, and that it is the actual matter in dispute, as shown by the whole record, and not the ad damnum alone which governs. Here the recovery against the company was less than $5,000, and

$229

that, according to all the cases which were fully collected and commented on in Hilton v. Dickinson, it is not of itself enough to give us jurisdiction. The right of the company to bring the case here, therefore, depends on the jurisdictional effect of its various counter-claims. As the first of these claims was admitted by Higgins in his reply, there could not have been below, and there cannot be here, any dispute about that. The conclusive presumption upon the record is that the amount of this claim was credited upon the sum found due from the company for the property about which the suit was brought, and the verdict and judgment given only for the balance remaining after that deduction was made. As to the second, the record shows that while the claim in the pleadings was for $1,833.42, the evidence introduced in support of it only tended to prove that there was $61.10 due from Higgins on that account. The dispute in this court, therefore, according to the record, is (1) as to the right of Higgins to retain his judgment against the company for $3,333.92; and (2) as to the right of the company to recover $61.10 from Higgins. As these two sums combined do not make $5,000, it is clear we have no jurisdiction, and the motion to dismiss must be granted. Had it not been for the statement in the bill of exceptions, which, in effect, limited the counter-claim to the amount which the evidence tended to prove, the case would have been different, for then it would have appeared that the company might have been entitled to recover the whole amount of $1,833.42, after defeating the entire claim of Higgins, thus making the apparent value of the matter in dispute here in excess of our jurisdictional requirements. As it is, however, we can look only to the statement in the bill of exceptions of what the amount in dispute under this claim actually was. Dismissed.

(112 U. S. 216)

SNYDER v. UNITED STATES.
(November 17, 1884.)

1. INTERNAL REVENUE-INFORMATION FOR FORFEITure.

A general verdict, upon an information in several counts for a single forfeitureunder the internal revenue laws, is valid if one count is good.

2. SAME-VERDICT.

A verdict which speaks of "evaluating" instead of "valuing," is not therefore insufficient to support a judgment.

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

J. D. Rouse and Wm. Grant, for plaintiff in error. Asst. Atty. Gen. Maury, for defendant in error.

GRAY, J. This is an information in several counts, under section 3372 of the Revised Statutes, for the forfeiture of the tobacco, machinery, tools, and materials in a tobacco manufactory, for violations of the internal revenue laws. The property was released upon the claimant's giving a bond to abide the final decree. The claimant demurred to the information, as not setting forth any facts warranting the seizure or forfeiture of the property. The demurrer was overruled, the claimant filed an answer, and, upon a trial, a verdict was returned in this form: "We, the jury, find a verdict for the government, evaluating the goods and machinery seized at a sum of one thousand dollars." The claimant moved, in arrest of judgment, that several of the counts were insufficient, and that the verdict was general upon all the counts, and was vague and uncertain, and not responsive to the issue. The motion was overruled, and judgment rendered for the United States, and the claimant sued out a writ of error.

Informations under the revenue laws for the forfeiture of goods, seeking no judgment of fine or imprisonment against*any person, are not strictly criminal cases, in which the decisions of the circuit court are final, unless a