Objection is made, however, that, if the case was removable, the application therefor, coming after appeal from the court of ordinary to the superior court of Floyd county, came too late. Code Ga. §§ 331, 2421, 3479, 3611, 3627, 5628, 3630, show that, while the proceeding to probate a will in solemn form must be instituted in the court of ordinary of the county in which the testator had his residence at his death, which court of ordinary, under the statute, has original and exclusive jurisdiction in the matter of probating wills, yet the trial and decision of the ordinary is not final and conclusive upon the facts involved, as either party may appeal the matter to the superior court of the county, carrying up the whole case for a trial de novo upon new and additional evidence, and, if desirable or necessary, upon amended pleadings, and where, for the first time in the proceedings, the issues involved can be submitted to a trial by jury. Section 2 of the act of 1887, re-enacted August 13, 1888, (25 St. at Large, 433,) provides that "removals of cases pending in the state courts to the circuit courts of the United States, on the ground of prejudice or local influence, may be had at any time before the trial. thereof." The third clause of section 639 of the Revised Statutes, which was the law controlling removals in cases of prejudice or local influence prior to the act of 1887, provided that the removal should be on a "petition filed at any time before the trial or final hearing in the suit." Under this statute, there is a line of decisions holding that, no matter how many previous trials might have been had in the case, the removal might be had at any time before the final and effective trial. v. Dunn, 19 Wall. 214; Vannevar v. Bryant, 21 Co. v. Bates, 119 U. S. 464, 7 Sup. Ct. Rep. 285. v. Henarie, 32 Fed. Rep. 417, which was a case removed under the act of 1887 on the ground of prejudice or local influence, after a number of trials had been had in the case, and after there had been one appeal to the supreme court of the state, resulting in a new trial being ordered, Judge DEADY, after considering the whole question in a very able and elaborate opinion, holds that, "the phrase "before the trial,' as used in the act of 1887, fairly construed, means the same as the phrase in the third clause of section 639, Rev. St., 'before the trial or final hearing of the suit.""

He says:

See Insurance Co. Wall. 41; Railroad In the case of Fisk

"In the nature of things the trial of the case is not any one, but the fir.al one, the one that stands as the thing accomplished in the case. Where a jury is discharged without a verdict the proceeding is properly known as a 'mistrial;' and where a verdict is set aside because it ought not to stand the result is the same, the proceeding has miscarried, and the consequence is not a trial, but a mistrial; and in the case of removal from local prejudice or influence, there is a good reason for giving the non-resident party the right to make the application after a mistrial, for, as was said by Mr. Justice MILLER in Hess v. Reynolds, 113 U. S. 75, 5 Sup. Ct. Rep. 377, the hostile local influence may not become known or developed at an earlier stage of the proceedings.'

We agree with the opinion of Judge DEADY, and merely add to the reasoning part of what was said by the chief justice in Yulee v. Vose, 99 U. S. 545, when considering the removal under the act of 1866, and

which seems to be perfectly applicable to removals for prejudice and local influence under the act of 1887:

"In view of the fact that sometimes, in the progress of a cause, circumstances developed themselves which made such a transfer desirable, when at first it did not appear to be so, the right of removal in this class of cases was kept open until the trial or final hearing, instead of being closed after an entry of appearance, as was the rule under the act of 1789. We think this gives such a party the right of removal at any time before trial, when the necessary citizenship of his co-defendants is found to exist, and a separation of his interest in the controversy can be made. There is nothing in the act to manifest a contrary intention, and this construction does no more than give the party to whom this new privilege is g.anted an opportunity to avail himself of any circumstances that may appear in his favor previous to the time when he is called upon finally to act.

But the objection is specifically made in the present case that, although a cause may be removed for prejudice or local influence after a mistrial in the state court, it cannot be removed after there has been a trial in one state court, and an appeal taken therefrom to another. The jurisdictional act of 1887 says:

"Where a suit is now pending or may be hereafter brought in any state court in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, the defendant, being such citizen of another state, may remove said suit into the circuit court of the United States for the proper district, at any time before the trial thereof,” etc.

This statute plainly reads that a suit pending for trial in the state court may be removed, if a proper case, before the trial. If it be true, as claimed, that the act of 1837 was passed for the purpose of restricting and limiting the jurisdiction of the United States courts, and therefore to be strictly construed, it does not follow that the courts should insist upon additional conditions relative to the right of removal. If the suit is pending in the state court, and the trial is yet to be had, and the right of removal from prejudice and local influence is not affected by any number of preliminary trials, not conclusive on parties, previously had in that court, why should the right of removal be affected by any number of preliminary and inconclusive trials in any other state court from which the suit has been removed by the operation of the laws of the state? In Boom Co. v. Patterson, supra, a case removed under the act of 1875, where the petition for removal was required to be filed in the state court "before or at the time at which said cause can be first tried, and before the trial thereof," the trial before commissioners (the appeal from whose decision constituted the pending suit) was held to be preliminary, and in the nature of an inquest; stress being laid on the fact that, under the laws of the state, on the appeal there was to be a trial by jury. In Hess v. Reynolds, supra, a case removed under section 639, Rev. St., on account of prejudice and local influence, and where the pending suit was an appeal from the decision of commissioners appointed by the probate court, Mr. Justice MILLER, for the court, says:

"It is said, however, that the trial spoken of had taken place before the commissioners of Ionia county, to whom the case had been referred. But we do not look at that proceeding as a trial within the meaning of the statute. It

was merely a report, subject to be affirmed or rejected by the probate judge, and, by the express terms of the statute, subject to a right of appeal to a court in which a trial by jury could be had. The latter was the trial or final hearing of the suit which would conclude the right of removal, and, until such trial commenced, the right of removal under this provision remained."

Here, again, stress was laid upon the fact that the original proceeding was by the statute subject to a right of appeal to a court in which a trial by jury could be had. In Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113, where one of the pending suits in the state courts held to be removable under the act of 1875 was an appeal from a trial before a mayor and jury, the case was held to be controlled by Boom Co. v. Patterson, supra, and that the said trial by the mayor and jury did not affect the right of removal. In the cases of Railway Co. v. Jones, 29 Fed. Rep. 193, and Mineral Range R. Co. v. Detroit & Lake Superior Copper Co., 25 Fed. Rep. 515, cited with approval in the case of Searl v. School-Dist., 124 U. S. 197, 8 Sup. Ct. Rep. 460, which was a similar case, it was held that proceedings for expropriation instituted before commissioners under special or general statutes of a state, for assessment of damages, were controversies removable under the federal statute to a proper circuit court of the United States; and that the removal could be properly made in the case pending before such commissioners, and before any appeal to another court. In Delaware Co. v. Diebold Safe Co., 133 U. S. 473, 10 Sup. Ct. Rep. 399, which was a case commenced, under the Indiana statute, against Delaware county, before the board of county commissioners, and after trial before said commissioners was appealed to the circuit court of the county, and thereafter removed by reason of prejudice and local influence to the circuit court of the United States, the case was held removable; the court using this language:

"It follows, according to the decisions of this court in analogous cases, that the trial in the circuit court of the county was the trial' of the case at any time before which it might be removed to the circuit court of the United States under clause 3, § 639, Rev. St.;" citing Boom Co. v. Patterson; Hess v. Reynolds, supra; Railway Co. v. Kansas City, 115 U. S. 1, 5 Sup. Ct. Rep. 1113; and Searl v. School-Dist., supra.

From these adjudged cases, it seems clear that, while a proper controversy may be removed under the statutes of the United States as soon as properly made before any state tribunal, yet, where the time of removal under the statute is before the trial thereof, the removal is not too late if the case is yet to be tried upon its merits before a state tribunal of either original or appellate jurisdiction; and, particularly, if such trial is to be a jury trial; and in this connection we may notice that Const. U. S., Amend. 7, provides "that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," from which we think it a fair inference that the trial mentioned in the removal act refers to and was intended to mean the trial by jury secured by the constitution, and that while the defendant still has the right to challenge the array of jurors, it cannot be too late to remove the cause for prejudice and local influence. In the present case the whole case was carried to the superior court of Floyd county,

in which court there was to be a trial de novo with the right to present additional evidence and to amend the pleadings; and, for the first time in the progress of the cause, a trial by jury was to be had.

It is further objected, however, to the right of removal in this case, that the order of removal was obtained from the circuit court without notice to the parties, and upon affidavits which, it is alleged, are not true. In the case of Cooper v. Railroad Co., 42 Fed. Rep. 697, this court held that

"Since Act Cong. March 3, 1887, which provides for the removal of causes on the ground of local prejudice, does not prescribe any mode of procedure, a petition for removal, accompanied by an affidavit by a person authorized to make it, stating of his own knowledge the existence of prejudice and local influence, is sufficient to justify an order of removal; and where such an affidavit is presented the court will not permit the adverse party to traverse it, and will not hear evidence on the subject."

Since that decision it has been the rule of this court. On the whole case presented on this motion to remand we are of opinion, for the reasons aforesaid, that the cause was properly removed from the state court to this court. The motion to remand is denied.

NEWMAN, J., concurs.

CENTRAL TRUST Co. v. SHEFFIELD & B. COAL, IRON & RAILWAY Co., (ANNISTON LOAN & TRUST Co., Intervenor.)

(Circuit Court, N. D. Alabama, N. D. December 23, 1890.)

1. RAILROAD COMPANIES-RECEIVER'S CERTIFICATES-ESTOPPEL.

Where, by consent of all parties, the receiver of a railroad company, though not engaged in operating the road, is authorized by order of court to issue certificates which shall constitute a lien on the company's property superior to certain prior mortgages, and the money obtained on such certificates is used in preserving and improving the property, the purchasers of the property at a subsequent sale to foreclose said mortgages are estopped from denying the validity of the certificates. 2. EQUITY-INTERVENTION-PLEADINGS-ADMISSION.

Where, on the ex parte application of the receiver, said order is modified so as to declare some of said certificates invalid, with the privilege to the holders of such certificates to intervene in the suit and have their validity adjudicated, a petition in intervention by such certificate holders, which recites the entry of the modified order, does not thereby admit the invalidity of the certificates.

3. SAME-PREMATURE SUIT.

The fact that the principal of such certificates is not due does not make the in tervention premature, if the interest thereon is then due and unpai.

4. SAME-PARTIES.

The receiver who issued the certificates, and who has in his hand the funds from which they should be paid if valid, is a necessary party defendant to such intervention.

5. SAME.

The complainant in the original suit is not a proper party defendant to such intervention, where it appears that he no longer has any interest in the fund in controversy, and no relief is asked as against him.

In Equity. On demurrer to intervention.

In this cause the Anniston Loan & Trust Company files an intervention, setting forth as follows:

"(1) Your petitioner, the Anniston Loan and Trust Company, a body corporate under the laws of the state of Alabama, respectfully represents unto your honors that on, to-wit, the 11th day of July, A. D. 1889, a decree was rendered by your honors authorizing and empowering Jacob G. Chamberlain, receiver of the Sheffield and Birmingham Coal, Iron, and Railway Company, to issue receiver's certificates or debentures in a sum not exceeding one hundred and fifty thousand dollars, bearing a rate of interest not exceeding 7 per cent. per annum, and constituting such certificates, when issued, a first lien on all the property, rights, appurtenances, and franchises of the said Sheffield and Birmingham Coal, Iron and Railway Company, as set forth and described in two mortgages or deeds of trust, the first executed on the 2d day of January, 1888, and the second mortgage executed on the 1st day of June, A. D. 1888, together with all other properties, rights, and franchises of the said Sheffield and Birmingham Coal, Iron, and Railway Company, of every nature and description, wheresoever situated, and also a lien upon whatever residue of the earnings, incomes, and profits of said property that there may be, which have accrued since the appointment of the receiver, and after deducting operating expenses, and the cost of needed repairs, and the expenses of the receivership; said decree and said certificates further providing that said lien should be prior to all other liens of any kind whatsoever against said property. The said second mortgage executed June 1, 1888, as aforesaid, although formally a lien upon a railroad known as the Sheffield and Birmingham Railroad,' was not a lien on said railroad when said certificates were issued, copies of which said mortgages are attached as Exhibits A and B to the original bill of complaint in the above-entitled cause, to all of which reference is hereby made, and all of which more fully and at length appear in and by said decree of this court in said cause, and to which reference is hereby made, and the same made a part hereof, as though they were herein particularly set out at length. Said receiver's certificates will be produced by the complainant on the trial of said cause.

"(2) That said Jacob G. Chamberlain, receiver as aforesaid, acting under and by virtue of the authority vested in him by said decree, engaged one Charles D. Woodson, president of the First National Bank of Sheffield, Ala., as his agent to negotiate the sale of eight of said certificates, to-wit, Nos. 1, 2, 3, 8, 9, 10, 11, and 12, respectively, of the par value each of five thousand dollars, bearing 6 per cent. interest, payable at the National Park Bank, New York city, three years after date, the said certificates 1, 2, and 3 being dated September 19, 1889, and the said certificates Nos. 8, 9, 10, 11, and 12 being dated, to-wit, the 10th day of October, 1889, with interest payable semi-annually, and said certificates 8, 9, 10, 11, and 12 were duly placed in the hands of said Charles D. Woodson to be negotiated and sold by him, with full power and authority to act for and represent the said Jacob G. Chamberlain in the matter of the sale of said certificates. That under and by virtue of said authority, and while the said certificates were in his possession and control, on, to-wit, the 10th day of October, 1889, the said Charles D. Woodson sold the same to one Duncan T. Parker, who is now dead, at and for the sum of, towit, five thousand dollars for each certificate, and the said Parker thereupon paid the said Woodson the said price of the said certificates, and thereupon they were turned over and transferred to him by said Woodson.

"(3) That afterwards, on, to-wit, the second day of November, 1889, the said Duncan T. Parker sold, transferred, and delivered said certificates Nos. 8, 9, 10, 11, and 12, for a valuable consideration, to-wit, for the sum of five