Opinion of the Court.

of the laches of the plaintiffs. We think there was good cause on that ground for the dismissal of the bill, and the decree of the Circuit Court must be affirmed.

David White died in December, 1841. Whatever cause of action, if any, the plaintiffs had, arose either then or in March, 1842, when Lipscomb assigned to one James Love shares of the stock. It is contended for the plaintiffs that the discovery on which their suit was based was made only a short time before 1881; but an agent was sent to Texas in 1843 expressly to obtain information. He saw Lipscomb, and obtained from the office of the Galveston City Company, in June, 1843, a full report as to the persons who surrendered the original certificates and got renewals. The report showed that the 3 certificates embraced in this suit, numbered 33, 36 and 39, were renewed to Lipscomb. It showed the fact of the renewal of 16 shares to Love. There was information enough to make it the duty of the agent to make further inquiry. In July, 1844, Robert J. Ware, executor of David White, visited Texas for the purpose of seeing Lipscomb, but did not meet him. Then ensued the period from 1844 to 1854, when no diligence was shown by the representative of White's estate. In July, 1844, administration on the estate of White was opened in Texas by W. B. Lipscomb, the son of A. S. Lipscomb. He brought a suit against Menard, claiming that the latter owed White's estate over $14,000 and interest, and that the claim was a lien on all the property of the Galveston City Company. Jones, the trustee, was made a party to the suit, and an injunction was prayed against all the operations of the company. This suit was brought with the knowledge and privity of Ware, the executor; but the administration in Texas did not assert any rights against the company, such as are asserted in the present suit. Ware visited Texas again and saw Lipscomb prior to 1854, and had an opportunity to make inquiries of the company.

In 1854, one A. F. James, as agent of David White's estate, made inquiry at the office of the company as to the rights and interest which White had in the company at the time of his death. The books, records and papers were all opened to his inspection, and the agent of the company made out for him an

Opinion of the Court.

historical record of White's stock. At that time, no suspicion existed of a claim against the company in the matter, and it was supposed that the search was made as the foundation of a liability on the part of Lipscomb. Therefore, there could have been no purpose on the part of the company of any concealThe information contained in the report of the company's agent was sufficient to put James upon inquiry.

ment.

Ware went to Texas again in 1858, when James, as his agent, made a further examination. This was after A. S. Lipscomb had died. It appears that then, in 1858, the question arose between Ware and James as to the liability of the company to account to the heirs of White for the stock which, it was alleged, was transferred by Lipscomb after the death of White. Thus, in 1858, twenty-three years before this suit was brought, the attention of Ware was directed to the point of the liability of the company for any transfers of White's stock made by Lipscomb after White's death. Then the whole matter appears to have been dropped for eleven years, until 1869. At that time, Ware had died, and his executor, with Mr. Molton, went to Galveston in the interest of Ware's estate and of his widow; and the question arose as to a claim for the stock against the company.

On June 17, 1873, the firm of Ballinger, Jack & Mott, of Galveston, lawyers at that time employed by the company, wrote to Molton that very careful and thorough examination had satisfied them, without doubt, that the heirs of David White could not recover against the company for stock improperly transferred to others in the company's books. The matter was then dropped until 1881, when a bargain was made with a land agent of Galveston to employ counsel and bring a suit, for a contingent interest of one-half.

On all these facts, the defence of laches is sustained, on the principles established by this court in the cases of Stearns v. Page, 7 How. 819, 829; Moore v. Greene, 19 How. 69, 72; Beaubien v. Beaubien, 23 How. 190; Badger v. Badger, 2 Wall. 87, 94; New Albany v. Burke, 11 Wall. 96, 107; Broderick's Will, 21 Wall. 503, 519; Upton v. Tribilcock, 91 U. S. 45; Sullivan v. Railroad Co., 94 U. S. 806, 811, 812; Godden

Opinion of the Court.

v. Kimmell, 99 U. S. 201; Wood v. Carpenter, 101 U. S. 135; Hoyt v. Sprague, 103 U. S. 613; Lansdale v. Smith, 106 U. S. 391; Philippi v. Philippi, 115 U. S. 151, 157; Speidel v. Henrici, 120 U. S. 377, 386, 387; Richards v. Mackall, 124 U. S. 183, 187, 188; Hanna v. Moulton, 138 U. S. 486, 495; Underwood v. Dugan, 139 U. S. 380, 383; Hammond v. Hopkins, 143 U. S. 224, 274.

Within the rules laid down in the cases above cited, there are not in the bill sufficiently distinct averments as to the time when the alleged fraud was discovered, and what the discovery was; nor does the bill or the proof show that the delay was consistent with the requisite diligence. On the evidence in the record, the case stood in March, 1881, when the bill was filed, on no different ground from that on which it stood in 1858, or that on which it stood from 1843, or, in fact, from the date of White's death. Molton married a daughter of the plaintiff, Asenath A. Ware, and granddaughter of David White. He testified that in the spring of 1869 he went to Texas as agent of the heirs of David White, especially to examine carefully into the facts of the transfers of the shares of stock which had belonged to White.

Nor is there anything which takes any of the plaintiffs out of the operation of the statutes of limitation of Texas, so as to affect the question of laches. David White's widow was a feme sole from 1841 to 1853. The plaintiff Lumpkin became of age in 1843, the plaintiff Daniel O. White in 1847, the plaintiff Clement B. White in 1850, the plaintiff Cowles in 1852, and the plaintiff Mary A. Holtzclaw in 1854. Robert J. Ware died in 1867, and his widow since that time has been a feme sole. The longest period of limitation for any cause of action in Texas, is ten years.

Decree affirmed.

Opinion of the Court.

BELLAIRE v. BALTIMORE AND OHIO RAILROAD

COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.

No. 38. Submitted November 4, 1892.

Decided November 14, 1892.

The petition of a city in a state court, against the lessor and the lessee of a parcel of land, to condemn it for the purpose of extending a street, cannot be removed into the Circuit Court of the United States upon the ground of a separable controversy between the lessee and the plaintiff.

THE case is stated in the opinion.

Mr. J. A. Gallaher for plaintiff in error.

Mr. John K. Cowen, Mr. John H. Collins and Mr. Hugh L. Bond, Jr., for defendants in error.

MR. JUSTICE GRAY delivered the opinion of the court.

The original petition was filed May 5, 1887, in the court of common pleas for the county of Belmont and State of Ohio, under sections 2233-2238 of the Revised Statutes of the State, by the city of Bellaire, a municipal corporation of that State, against the Baltimore and Ohio Railroad Company, a corporation of Maryland, and the Central Ohio Railroad Company, a corporation of Ohio, to condemn and appropriate, for the purpose of opening and extending a street across the railroad tracks of the defendants, a strip of land about sixty feet wide and one hundred and sixty feet long, of which, the petition alleged, "said defendants claim to be the owners, legal and equitable," "but as to the proportionate interest of each of said defendants this plaintiff is not advised." Notice of the petition was issued to and served upon both defendants within the State of Ohio.

Opinion of the Court.

After the return day, and before trial, the case was removed into the Circuit Court of the United States for the Southern District of Ohio by the Baltimore and Ohio Railroad Company, which alleged that this defendant was in possession of the land in question under a lease from its codefendant, and that there was a controversy wholly between the plaintiff and this defendant and which could be fully determined as between them; and further alleged, on the affidavit of its agent, that from prejudice and local influence it would not be able to obtain justice in the courts of the State. The city of Bellaire moved to remand the case to the state court.

On July 5, 1887, the Circuit Court of the United States, as appears by its decision and order entered of record, overruled the motion to remand, upon this ground: "The Baltimore and Ohio Railroad Company has in this case a separate controversy, which is wholly between it and the city of Bellaire and which can be fully determined as between them. This is the question of the value of the leasehold interest of the Baltimore and Ohio Railroad Company in the land which the city seeks to appropriate. This interest is wholly apart from the interest of the Central Ohio Railroad Company in the fee, and entitles the Baltimore and Ohio Railroad Company to a separate verdict."

The case was afterwards tried by a jury, and a verdict returned upon which judgment was rendered for the Baltimore and Ohio Railroad Company. The city of Bellaire sued out this writ of error, assigning errors in the denial of the motion to remand, and in sundry rulings and instructions at the trial.

Under the act of Congress in force at the time of the removal of this case and of the refusal to remand it, prejudice and local influence which would prevent the party removing it from obtaining justice in the state court must be proved to the satisfaction of the Circuit Court of the United States, if its jurisdiction is to be supported on that ground. Act of March 3, 1887, c. 373, § 2, 24 Stat. 552; Pennsylvania Co., Petitioner, 137 U. S. 451, 457; Fisk v. Henarie, 142 U. S. 459, 468.

In the case at bar the question of prejudice and local influence appears not to have been insisted on or considered in the