JEWETT v. BRADFORD SAV. BANK & TRUST Co. cl al. (Circuit Court, D. Vermont. April 7, 1891.) 1. FEDERAL COURTS-JURISDICTION-CHOSE IN ACTION. A proceeding in equity to compel the transfer upon the books of a corporation of corporate stock which the complainant had purchased from a third person, is not a suit "to recover the contents of any promissory note or other chose in action in favor of any assignee" of which jurisdiction is excluded from the federal courts by Act Cong. 1888, § 1. 2. SAME-CITIZENSHIP OF PARTIES. The exemption from suit out of the district of inhabitancy, secured by Act. Cong. 1888, 1, is personal to a defendant, and may be waived; and where suit is brought by a citizen of Massachusetts against a Vermont corporation and a New York corporation in the circuit court of Vermont, it will not be dismissed on motion of the Vermont corporation for want of jurisdiction of the parties in the absence of objection by the New York company, especially if the suit is a proceeding to enforce an equitable claim to property in the district within the meaning of Rev. St. U. S. $ 738. In Equity. John R. Poor and C. A. Prouty, for complainant. WHEELER, J. The orator is a citizen of Massachusetts, the Bradford Savings Bank & Trust Company of Vermont, and the Hanover National Bank of New York. The bill is brought to compel the savings bank to transfer on its books to the orator 94 shares of its stock, bought of the Windsor National Bank, a citizen of Vermont, of which he holds certificates and transfers, and about which the Hanover National Bank has some interest. The latter bank has appeared in the suit. The savings bank has moved to dismiss for want of jurisdiction of the parties, because the other defendant is not a citizen of Vermont; and for want of jurisdiction of the cause, because the orator's claim is that of an assignee of the stock as a chose in action. The other defendant might have objected to being sued in this district, but this defendant is sued in the district whereof it is an inhabitant, and has no ground to complain of that place. Full jurisdiction of suits, in which there is a controversy between citizens of different states, is given to the circuit courts at the beginning of section 1 of the Acts of 1887 and 1888; the exemption from suit out of the district of inhabitancy is personal to a defendant, and may be waived. Ex parte Schollenberger, 96 U. S. 369. Especially is this so in a suit to enforce an equitable claim to property in the district where it is brought, as this appears to be. Rev. St. U. S. § 738. Shares of stock in corporations are mere rights to dividends of the corporate profits or property, and in many, and perhaps most, senses choses in action; and if this suit was brought to recover such dividends that had accrued to a former owner of the stock, and been acquired by assignment, it could not probably be maintained. The language of the latter part of that section in this respect is: v.45F.no.12—51 "Nor shall any circuit or district court have cognizance of any suit except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee." But this suit is brought to perfect the record title to the stock, and not to recover the contents of the stock in the sense of that word in these statutes. The suit is not upon the shares of stock to recover dividends which would be their contents, but is for the shares of stock to perfect the right to the dividends as they may accrue, and the right to sue for them in whatever may be the proper jurisdiction when they have accrued. Deshler v. Dodge, 16 How. 622; Corbin v. County of Black Hawk, 105 U. S. 659. The jurisdiction kept away from these courts appears to be that of enforcing choses in action in favor of assignees to recover what they will bring. The cases cited in behalf of this motion, where jurisdiction has been denied, were all brought for that purpose. Shoecraft v. Bloxham, 124 U. S. 730, 8 Sup. Ct. Rep. 686; Corbin v. County of Black Hawk, 105 U. S. 659; Bradley v. Rhines, 8 Wall. 393; Coffee v. Bank, 13 How. 183; Mollan v. Torrance, 9 Wheat. 537; Turner v. Bank, 4 Dall. 8. An action in favor of an indorsee of a promissory note against his immediate indorser accrues to him, and he can maintain it in the courts of the United States, notwithstanding this statute. Although he is an assignee of the note, he is not an assignee of this cause of action. Mollan v. Torrance, 9 Wheat. 537; Coffee v. Bank, 13 How. 183. Jurisdiction concerning choses in action which have been assigned does not appear to be prohibited unless the cause of action has been assigned, and is for the contents of the chose. That is not the case here. The refusal to transfer the stock was made to the orator, and that furnishes the ground of this bill. The contents of the stock are not here sought to be recovered. Motion denied. CONNER v. SKAGIT CUMBERLAND COAL Co. (Circuit Court, D. Washington. March 13, 1891.) FEDERAL COURTS-REMOVAL OF CAUSE-TIME FOR REMOVAL. The voluntary appearance of defendant, and demurrer, in a state court, before expiration of the time within which he was required to plead, in no way limits his right to file a petition and bond for removal of the cause to the federal court at any time before expiration of such time. Act Cong. March 3, 1887, provides that he may file the petition for removal "at the time, or at any time before" defendant is "required," by law or rule of court, to answer or plead. * * ** Act Cong. March 3, 1887, (24 St. 554,) relating to the removal of causes from the state to the federal court, provides that "whenever any party, entitled to remove any suit, may desire to remove such suit from a state court to the circuit court of the United States, he may make and file a petition in such suit in such state court, at the time or at any time before the defendant is required, by the laws of the state or the rule of the state court in which such suit is brought, to answer or plead to the declaration or complaint. * * Lindsay & King and Moore & Turner, for plaintiff. HANFORD, J. The plaintiff has moved to remand this case to the state court in which it was commenced, on the ground that the petition and bond for removal to this court were not filed until the right to remove had been lost by expiration of the time limit. Whatever the facts may be as to the service of the jurisdictional process upon the defendant, the proof of service contained in the record is unsatisfactory, and I consider that it would be unsafe to hold such proof to be sufficient. I shall therefore decide the issues presented by the motion, assuming it to be a fact that the summons has not been served upon the defendant. Ten days prior to filing the petition and bond for removal the defendant entered a voluntary appearance in the state court, by filing a general demurrer, and the plaintiff contends that with the filing of said demurrer the time allowed by law and the rules of the state court for answering expired, and, that being the time limited for filing a petition for removal, the right to remove expired simultaneously. I think, however, that by the act congress intended to and did prescribe a general rule by which to measure the time within which a party having a right to remove a cause may claim such right; and while it is true, as held in cases cited by counsel for the plaintiff, that neither the parties nor the court can, by any special rule or stipulation enlarging the time for answering in a particular case, also enlarge or extend the time for making application to remove a cause, it is equally true that by no act of the parties or special rule of court in a particular case can the time for filing a petition to remove be abridged. I do not mean to say that the right to remove cannot be waived, but, so long as the right remains, the limit of time within which it may be exercised is not subject to any change. In the case of Gavin v. Vance, 33 Fed. Rep. 84, this question was passed upon, and the same conclusion was reached by Judge HAMMOND. In his opinion on page 92 he says: "Furthermore, I am of the opinion that the filing of the defendant's answer in no way affects his right of removal by imposing any limitation of time upon it, under this act of congress. The original judiciary act of 1789 did require that the defendant proposing to remove a case should file his petition at the time of entering his appearance in such state court,' and under that act the right of removal was gone after any plea or answer was filed. Act 1789, c. 20, § 12; 1 St. 79. But this act uses entirely different language. It does not at all say that the petition shall be filed the first thing that is done on appearance. The conduct of the defendant is not referred to in defining the limitation of time, nor is any act of his designated as fixing the terminal point. The laws of the state and the rules of the court determine the time by fixing a period when his right to answer or plead terminates. To illustrate, it is a familiar law and rule of court or practice in cases at law that the plaintiff has the first three days of the term to file his declaration, and the defendant two days thereafter to plead, etc. Now, often the plaintiff files his declaration before the term cominences, and the defendant pleads immediately, or it is all done on the first day; and, surely, such a premature and voluntary action cannot be said to close the right of removal under this act of congress, but the expiration of the two days allowed the defendant to plead would close it, perhaps whether he actually did plead or did not." The opinion in the case of Lockhart v. Railroad Co., 38 Fed. Rep. 274, cited by counsel for the plaintiff, was also written by Judge HAMMOND, and he therein refers to the case of Gavin v. Vance, and plainly adheres to his views therein expressed by distinguishing it from the case then under consideration. This will be made apparent by the following extracts from the latter opinion: "This court held in Gavin v. Vance, 33 Fed. Rep. 84, 92, that the filing of an answer prematurely - that is, before the time specifically fixed by the statutes or rule of court-did not terminate the right of removal, and that a removal petition filed before the time allowed for pleading had expired was in time. * * * In Gavin v. Vance, supra, the answer that was filed, and which was held not to terminate the right of removal, was filed before the time which was fixed by a day certain to plead, which is not the case here." The appearance entered in this case brought the defendant for the first time within the jurisdiction of the court, and it was entitled, by law and the rules of the court, to at least 20 days thereafter within which to answer or plead. As the petition and bond were filed within that time, there is no ground for this motion to remand. STATE ex rel. TILLMAN, Governor, et al. v. Coosaw MIN. Co. (Circuit Court, D. South Carolina. April 21, 1891.) 1. FEDERAL COURTS-REMOVAL OF CAUSES-JURISDICTION-JUDICIAL NOTICE. Where a complaint in the state court alleges that complainants claim under a designated state act, not set out in full in the complaint, and that defendant's claim arises under a previous designated act, alleged to be contrary to the state constitution, the federal court, on defendant's petition for removal, on the ground that the later act was contrary to the United States constitution, as impairing the obliga tion of their contract under the former act, will take judicial notice of the acts in determining its jurisdiction. 2. SAME-PETITION FOR REMOVAL-RECORD. The petition for removal of a cause from a state to the federal court is part of the record, and will be considered by the federal court in determining its jurisdiction. 3. SAME. When the petition for removal to the federal court and the bond are filed in the state court, the jurisdiction of the latter ceases, and of the former immediately at- . taches. 4. SAME-COURTESY TO STATE COURT. Where the judge of the state court in vacation passes upon the petition for removal and bond, courtesy does not require the federal court to withhold action. 5. SAME-COMITY. The question of comity between the federal and state courts does not arise on removal of a cause. In Equity. Y. J. Pope, Atty. Gen., Mitchell & Smith, and George S. Mower, for plaintiffs. McCrady, Sons & Bacot and Smythe & Lee, for defendant. SIMONTON, J. The summons and complaint in this case were filed in the office of the clerk of Beaufort county in South Carolina on 23d March, 1891. The complaint sets forth the ownership by the state of the beds of Coosaw river, including that part of it which "lies opposite to and south of Chisolm's island," and in the phosphate and phosphatic deposits therein. That the Coosaw Mining Company, a joint-stock company, claims a perpetual grant to all such deposits in that part of Coosaw river, and the exclusive right to mine the same, which claim relators deny. That, notwithstanding such denial, the Coosaw Company continues to assert its claim, and hinders and obstructs the relators, who are the duly qualified and appointed board of phosphate commissioners, and all persons authorized by them, from mining in said territory. That it is necessary to dispose of this claim, which is based on a certain act of the general assembly of South Carolina, approved 20th March, 1876, (setting out the title of the act,) which act relators charge to be in conflict with the state constitution. That the deposits are of great value, variable, however, in price, and liable in this respect to be affected by the discovery and the production of phosphate rock elsewhere. Charges that the Coosaw Company has brought and threatens suits against persons licensed by plaintiffs to mine in this territory, and that this cloud on the state's title should be removed. The prayer is for a perpetual injunction against the Coosaw Company, and in the mean time a restraining order, and also for the appointment of a receiver. After the filing of the complaint an order was made by his honor, Judge ALDRICH, sitting in chambers at Aiken, containing a rule against the Coosaw Company to show cause before him, on 7th April next thereafter, why the injunction as prayed for be not granted, and why the receiver be not appointed. In the mean time a restraining order was issued, and a temporary receiver appointed without bond. The defendant was served with summons and complaint on 23d March, 1891. On 30th March, 1891, a petition was filed with the clerk of the court of common pleas for Beaufort county for the removal of the cause into this court, accompanied by a bond with good surety in the sum of $5,000. The court of common pleas for that county was then and is now in vacation. The next regular term will be held on 4th of May next. The defendant exhibited a copy of the petition and bond to Judge ALDRICH at Aiken on 31st March. What action he took does not appear. A copy of the summons and complaint, petition and bond, with exhibits certified by the clerk of the court of common pleas for Beaufort county, was filed in this court on 1st April. On the 6th day of April the regular term of this court began. On the 7th of April the Coosaw Company came into open court, and asked leave to file a return to the rule issued by Judge ALDRICH. Thereupon the Honorable Y. J. Pope, who is the attorney general of the state of South Carolina, and who appears on the record as plaintiffs' attorney, entered a qualified appearance for the plaintiffs, simply to test the jurisdiction of the court. At the same time he filed |