innovation upon established practice, it could not be considered a departure from the principle of the jurisdiction; for, to quote what Lord MANSFIELD said in Rex v. Barker, 3 Burr. 1267, "the original nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced to prevent disorder from a failure of justice and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." The present writ, however, is not without prece dent, modern and ancient. It is, indeed, precisely like that which was passed upon in the case of the Cherokee Co. Com'rs v. Wilson, ubi supra, although there the objection was made by the commissioners alone, who, it was held, were not entitled to complain on that account.

In the case of Farnsworth v. Boston, 121 Mass. 173, cited and approved in Attorney General v. Boston, 123 Mass. 460, where an owner of land, assessed to pay for an improvement, had, under the statute, a right to surrender his estate, and receive compensation for its value, which the city council sought to defeat by an attempted vacating of the assessment, which it was held they could not lawfully do, a mandamus was issued, not only to the city council to take the land, but also to the mayor to sign the description and statement, although he could not do so, or be in default for not doing so, until the city council had passed an order taking the land, and although he might, by the statute, sign the description and statement at any time within 60 days after the taking.

The case of The King v. The Mayor and Burgesses of Tregony, 8 Mod. 111, was a motion for a peremptory mandamus, where a former mandamus was directed to the mayor and burgesses of Tregony, in Cornwall, commanding them, "quod eligetis et juretis majorem, etc., secundum authoritatem vestram, etc." "It was moved," says the report, "for a supersedeas to that mandamus, for that the writ was not good, because it was directed to the mayor and burgesses to elect and swear a mayor, whereas the power of electing is only in the burgesses, and the power of swearing in the mayor alone; so that the mayor cannot make a return of this writ as directed to him to elect, nor the corporation as directed to them to swear a mayor, so that if the burgesses should make a return as to the swearing part, they would be usurpers, and if they do not make a return, they will be in contempt of this court. Besides, it is incongruous for a mandamus to be directed to swear a mayor not yet elected," etc. But the court were all of opinion in this case that they ought to make a return, for the writ commanding them "quod eligetis et juretis secundum authoritatem vestram," it shall be taken reddendo singula singulis, and to be the return of both. Accordingly, a return having been made, the objection was renewed, and was further argued, but the court remained of the same opinion on this point, and on the final argument for a peremptory writ it was finally said, (page 128:) "The objection to the writ is that it is directed To the mayor and burgesses to elect and swear a new mayor,' which is wrong; for though the mayor and burgesses are to elect, yet it is the mayor alone who must administer an oath to the person, for the burgesses cannot; therefore, this direction is wrong. But this may receive a very plain answer by a reasonable construction of the matter distributively in the manner as directed by the writ, the words being eligetis et juretis secundum authoritatem vestram,' so that it is a writ to the body corporate to elect, they having the inheritance as to the election of a mayor; and it is a writ to the mayor, who has a special power to swear the person elected into the office; so that reddendo singula singulis, the writ is well directed. And it could not be otherwise, unless there had been two writs granted, the one to elect, and the other to wear the person elected, so that this, being a ministerial writ, is so far good." The same point had been previously raised and decided in The King v. The Mayor of Abingdon, 1 Ld. Raym. 559, by Chief Justice HOLT, who said: "There

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have been a hundred writs directed to the mayor and aldermen of London in cases of acts to be done by them separately." The report continues: "The second exception to the writ was to that part of the writ which commanded" the mayor to swear Sellwood and Spinnage, that they sued this too soon; for a mandamus ought not to go until the officer has refused to do the act and his duty; or, at least, that there was some person who had right to have the thing done to them, which was not in this case, because they were not yet elected; that this was to sue a mandamus qui« timet, and, like the case of an original bearing teste, before the cause of action accrued. But per HOLT, C. J., it will be well enough in this case, because they are acts depending the one upon the other; first, they ought to elect him, and then the mayor ought to swear him. And the writ was held good, and the return disallowed, and a peremptory mandamus was granted."

We are of opinion, therefore, that there is no error in the judgment of the circuit court, and it is accordingly affirmed.

(112 U. S. 233)

PEOPLE OF THE STATE OF CALIFORNIA ex rel. HASTINGS v. JACKSON and another.

(November 17, 1884.)

1. ACTION FOR LAND-JURISDICTION OF UNITED STATES COURT-LITIGANTS CLAIMING UNDER COMMON GRANTOR WHOSE TITLE FROM UNITED STATES IS ADMITTED.

In a suit for the recovery of lands, where both parties claim under a common grantor, whose title from the United States is admitted, the supreme court has 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 are not in themselves of a federal character.

2. SAME-ACT OF CONGRESS, JULY 23, 1866, CH. 219.

Act of congress of July 23, 1866, c. 219, (14 St. 218,) does not provide for the settlement of the rights of conflicting claimants under the state.

In Error to the Supreme Court of the State of California. John N. Pomeroy, for plaintiff in error. M. A. Wheaton, for defendants in error.

WAITE, C. J. This was a suit brought by the state of California at the instance of S. C. Hastings to set aside a patent of the state granting the S. & of section 14, township 5 N., range 1 W., to A. P. Jackson. The lands are part of the 500,000 acres which went to California on its admission into the Union, September 9, 1850, (9 St. 452, c. 50,) under the provisions of the act of September 1, 1841, c. 16, § 8, (5 St. 455.) By that act the lands granted were to be selected by the state in such manner as the legislature thereof should direct, and by the constitution of California (article 9, § 2) they were devoted to the support of schools. The legislature of California, by an act passed May 3, 1852, c. 4, (Acts Cal. 1852, 41,) authorized the governor to issue land warrants to the amount of 500,000 acres in all and deposit them with the treasurer of state. These warrants were to be sold by the treasurer at two dollars per acre, and the interest of the proceeds was set apart "as a permanent fund for the support of schools." The purchasers were authorized to locate their warrants in behalf of the state "upon any vacant and unappropriated lands belonging to the United States within the state of California subject to such location." Provision was then made for the issue of patents to locators by the state as soon as the lands were surveyed.

The material averments in the complaint filed by the state are that one Isaac Thomas located a school-warrant on the lands in question on the twentieth of June, 1853; that as the government surveys had not then been made, the lines of the location were run by the county surveyor, and a correct entry thereof made in the office of the county clerk; that the government surveys were completed and plats thereof filed in the general land-office on the first of

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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

t

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 schoolwarrants, 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.

(112 U. S. 229)

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.

HANCOCK . 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.

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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 decided 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