pany does not separate this part of the controversy from the rest of the action. What Huntington wants is not partial relief * * * against the Fidelity Company alone, but a complete decree, which will give him a sale of the entire property, free of all incumbrances, and a division of the proceeds as the adjusted equities of each and all the parties shall require. The answer of this company shows the questions that will arise under this branch of the one controversy, but it does not create another controversy. The remedy which Huntington seeks requires the presence of all the defendants, and the settlement not of one only, but of all, the branches of the case.”

The language here used-and the like may perhaps be found in other cases seems to imply that the presence on the same side with the petitioner of any party necessary to the granting of the complete relief sought by the opposite party will defeat a removal under the second clause of the statute; but this, as I suppose, is so only when the alleged separable controversy is determinable, and, in order to the granting of complete relief to the complainant, must be determined as an incident to the principal action. In Ayres v. Wiswall, supra, it is said:

"The rule is now well established that this clause in the section refers only to suits where there exists a separate and distinct cause of action, on which a separate and distinct suit might have been brought, and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other. To say the least, the cause must be one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more states on one side and citizens of other states on the other, which can be fully determined without the presence of the other parties to the suit as it has been begun." Fraser v. Jennison, 106 U. S. 194, 1 Sup. Ct. Rep. 171.

It is evident that neither Bissell nor Fitzgerald has any separate and distinct cause of action which he might prosecute to complete or even partial relief against the petitioner; and it is equally clear that the petitioner has no cause of action which he can maintain against Bissell or Fitzgerald without the presence as a party of the railway company, or of its representative in the person of the receiver appointed by the Elkhart circuit court, from which removal is sought. Other questions discussed need not be considered. Cause remanded.

COHN v. LOUISVILLE, N. O. & T. R. Co.

(Circuit Court, S. D. Mississippi, W. D. July 6, 1889.)

1. REMOVAL OF CAUSES-LOCAL PREJUDICE-ALIENS.

A cause to which an alien is a party is not removable to the United States circuit court under the "local prejudice" clause of the removal act of 1887, which provides for the removal of controversies between citizens of the state in which the suit is brought and citizens of other states, on the ground of local prejudice.

SAME-CORPORATIONS-CITIZENSHIP.

A corporation created by the consolidation of several corporations existing in different states, by an act of the legislature, which provided that such cor

poration should be treated as a corporation created by the laws of the state authorizing the consolidation, is, as concerns a suit against it by an alien, a citizen of that state, and not entitled to a removal of such suit under the local prejudice clause of the act of 1887.

HILL, J. This is an action at law, brought by the plaintiff to recover damages for alleged personal injuries inflicted on him while a passenger on defendant's train, and alleged to have been caused by the negligence and carelessness of defendant's employés. The cause was removed from the circuit court of Washington county into this court, upon the petition of defendant under the fourth clause of the second section of the act of 1887, known as the "Prejudice Clause" of the removal act. The questions now for decision arise upon plaintiff's motion to remand the cause to the circuit court of Washington county, from whence it was removed into this court. It is agreed on the hearing of this motion that the plaintiff is not a citizen of the United States, but is a subject of the emperor of Austria. It is further agreed that the defendant corporation, as it now exists, and did exist when the injuries complained of occurred, was created by the consolidation of different railroad corporations, created by the acts of the legislatures of Louisiana, Mississippi, and Tennessee, respectively, and that the consolidation was authorized by the respective acts of the legislatures of these several states. It is further admitted that the act of the legislature of this state, authorizing this consolidation, provided that by whatever name the consolidated company should be called in the future, it should be held, deemed, and treated as a corporation created by the laws of this state, and liable to all the responsibilities, and entitled to all the rights of such as though said consolidation had not been made. The petition for removal avers that the defendant is a corporation created by the laws of Tennessee, and has its principal office and place of business in that state. While this is true in the state of Tennessee, it is clear from the admitted facts, as well as the act of consolidation of this state, that it is equally a corporation created under the laws of this state, and must be held and treated as such, so far as it relates to its contracts and liabilities incurred in this state. The grounds of the motion for remanding the cause to the court in which the suit was brought are, first, that the plaintiff is an alien, and not a citizen of this state or district; and, secondly, that the defendant is a citizen of this district and state, and that for the want of necessary citizenship of the parties this court has no jurisdiction of the cause under the clause of the act of 1887, under which the removal of the cause was sought to be made. This clause reads as follows:

"And where a suit is now pending, or may hereafter be 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, any defendant being such citizen of another state may remove such suit into the circuit court of

the United States for the proper district at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court, to which the said defendant may, under the laws of said state, have the right, on account of such prejudice or local influence, to remove said cause."

There is no provision in this clause, nor was there any provision in the act of 1875, of which this act is an amendment, where an alien is a party, for the removal of causes from a state court, whether the alien be a plaintiff or defendant; and if there was no other reason, the motion to remand the cause to the circuit court of Washington county must prevail. But if this were not so, it is clear that the defendant is a citizen of this state, so far as this suit is concerned, and was sued as such, and under the provisions of the fourth clause of the second section of the act of 1887, is not entitled to a removal of the cause, and for this reason, the motion to remand must prevail, and such will be the order of the court.

SUNFLOWER RIVER PACKET Co. v. GEORGIA PAC. R. Co.

(Circuit Court, 8. D. Mississippi, W. D. July Term, 1889.)

FEDERAL COURTS-JURISDICTION-NAVIGABLE WATERS.

The federal courts have jurisdiction of an action by a steam-boat company to recover damages of a railroad company for obstructing a navigable river of the United States by building a bridge across it, regardless of the citizenship of the parties.

At Law. Motion to dismiss.
Albert M. Lea, for plaintiff.
Yerger & Percy, for defendant.

HILL, J. This is a suit brought by the plaintiff against the defendant to recover damages for the obstruction to the navigation on Sunflower river, by placing a bridge across said stream. The declaration alleges that the Sunflower river is one of the navigable streams of the United States, and has long been used as such for the transportation of persons and freights on steam-boats plying upon said river for many miles above the point where said bridge is built, and that the plaintiff, as a corporation created under the laws of this state, is engaged in transporting persons and freight upon steam-boats from the port of Vicksburg to points on said Sunflower River as high as the same is navigable, and that its boats are duly enrolled and licensed for the coasting trade, conformably with the provisions of title 50 of the Revised Statutes of the United States; that the defendant corporation obtained an act of the congress of the United States to place a bridge across said river, provided it should not interfere with the navigation by steam-boats upon said river; that the defendant, in the construction of said bridge, has so constructed

it that it does prevent and obstruct the plaintiff from running its steamboats above and beyond said bridge, to the damage of the plaintiff the sum of $5,000. The defendant moves the court to dismiss the suit for the want of jurisdiction in this court to try and determine the controversy between the parties, upon the ground that both the plaintiff and defendant are citizens of this state, and that there is no federal question involved in the suit, as shown by the declaration. Whether there is or is not such federal question is the only question now to be determined. It is not controverted that the Sunflower river is one of the navigable water-courses of the United States, and was so used at the point where said bridge has been built across said river, and for a considerable distance above said point, and was before the construction of said bridge navigated by plaintiffs, by their steam-boats, under a license from the United States. This right and privilege is certainly derived from the United States; and, for any unlawful obstruction or interference with the right to navigate the said river, this court certainly has the jurisdiction to try and determine the injuries done the plaintiff, and afford the proper remedy, if established as alleged in the declaration. I am satisfied that this court has full jurisdiction of the controversy stated in the pleadings, and that the motion to dismiss the cause must be overruled, and it will be so ordered.

UNITED STATES v. AMERICAN BELL TEL. Co. et al.

(Circuit Court, D. Massachusetts. July 2, 1889.)

EQUITY-REFERENCE TO EXAMINER.

On a motion for the appointment of an examiner to take testimony in an equity case, the court will not restrict the testimony to the single issue of fraud which is raised by the plea.

In Equity. Motion to appoint examiner.

G. A. Jenks, C. S. Whitman, and O. A. Galvin, for complainant.
C. Smith and B. F. Thurston, for defendants.

COLT, J. The plaintiff moves the court for the appointment of an examiner to take testimony. The defendant Bell also moves for the appointment of an examiner to take testimony upon the issue raised by his plea filed in this case. The defendant company have answered generally to the bill. The defendant Bell has filed a plea and an answer in support of the plea. To the answer of the defendant company and to the plea the plaintiff has filed replications. The cause, therefore, is at issue, and it is proper for the court to appoint an examiner to take testimony. The defendants' motion seeks, in effect, to restrict the testimony by order of court to the single issue of fraud which is raised by the plea. It is certainly unusual, upon a motion made in the ordinary way for the appointment of an examiner, to ask the court by an interlocutory order to

limit in advance the scope of the testimony to be taken. It is probable that no appeal would lie from such an order. But, however this may be, such action on the part of the court seems to be contrary to established equity practice. Objections may be taken to the evidence on the grounds of incompetency or irrelevancy, and these objections properly come before the court at the final hearing of the cause, but I find no precedent for limiting or restricting the taking of testimony in advance. The court should not be called upon at this stage of the case to determine what is proper testimony and what is not, nor to determine the scope of the decision of the supreme court upon the demurrer in this case. Upon a motion in the ordinary way for the appointment of an examiner it is not for the court to settle questions which cannot be properly and intelligently passed upon at this time. The fact that this is an important, and in some respects an exceptional, case, should not prevent the court from following the usual and ordinary course of equity practice. The defendants' motion is denied and the plaintiff's motion is granted, and Henry L. Hallett is hereby appointed examiner.

FIRST NAT. BANK OF ELKHART v. ARMSTRONG.

(Circuit Court, 8. D. Ohio, W. D. July 12, 1889.)

L BANKS AND BANKING-COLLECTIONS-INSOLVENCY.

By agreement and custom the Fidelity Bank received drafts from its correspondent bank at E., and credited them to it as cash, with the understanding that any draft which was unpaid should be charged back to the correspondent. The latter forwarded drafts which were credited to it, but were not collected before the Fidelity Bank failed. The drafts were paid after the appointment of a receiver, and the moneys actually came into his hands. The drafts were indorsed payable to the Fidelity Bank "for collection for the" bank at E. Held that, as the drafts were, when received, credited as cash to the bank at E., which had the right at once to draw against them, the indorsement for collection did not affect the result, and the bank had only the rights of a general creditor.

2. SAME-PROOF OF CLAIM.

The Fidelity Bank, when it failed, owed $5,361.40 to the bank at E., which had collected $1,873.97 on drafts of other banks sent to it by the Fidelity Bank for collection, and had credited the proceeds to the Fidelity Bank. The proceeds were claimed both by the banks which had sent them and by the receiver of the Fidelity Bank. Held, that the bank at E. should be allowed to prove up its claim before the receiver for whatever amount it saw fit. and the receiver should be allowed to accept the proof and pay a dividend thereon, without prejudice as to any claim he might have on the proceeds of the drafts collected by the bank at E.

In Equity.

Agreed statement for instructions in the matter of the First National Banks of Elkhart, Ind., against David Armstrong, receiver of the Fidelity National Bank of Cincinnati, Ohio.

J. M. Van Fleet, for complainant.