The mate of the Scotia also testifies as follows: "The captain asked me if I thought we could get under the stern of the Thayer. I told him it looked as though there was room enough. He said: 'I think we can get under there if the raft does not hook on to her.' I said I thought we could." Further, he says: "At the time the Scotia starboarded her wheel it looked as if the raft was going to strike the Thayer." The master of the Scotia further says: "I had made up my mind to go under the schooner's stern if the raft did not catch her; but I was pretty sure she would catch her, and she probably had made 100 revolutions, the port engine backing, and I then didn't stop the port engine, but rang to stop the starboard engine, the one that was going ahead, and rang to back as quick as I could between the bells so the engineer would understand it."

Thus it appears that after the Thayer was seen lying at anchor, and before the raft had struck her, but with the belief in the mind. of the master of the Scotia that the raft and schooner would become entangled, he persisted in a maneuver by which he hoped to pass both the raft and vessel by going under the latter's stern; and to this, I think, in the light of all the circumstances, the collision must be fairly attributed. In other words, if the Scotia, when the position of the schooner and the raft with reference to each other was discovered, had backed with both engines, or had stopped both engines so that her forward movement would have been entirely arrested, my judgment is there would not have been a collision. The Scotia was under control, and when the situation was clearly one where danger was apparent, it was the duty of her master to withdraw his vessel from the position she was then in rather than to attempt the execution of a maneuver which brought the two vessels into even more dangerous proximity.

Decree for libellant.

GREENE V. KLINGER."

SAME V. SAME.

SAME V. SAME.

(Circuit Court, E. D. Texas. February, 1882.)

1. REMOVAL OF SUITS-ACT OF MARCH 3, 1875.

Under the second clause of the second section of the act of March 3, 1875, (18 St. 470,) when in any suit mentioned therein there is a controversy wholly between citizens of different states, which can be fully determined as between them, then either one or more of the plaintiffs or the defendants actually interested in such controversy may, on complying with the requirements of the statute, remove the entire suit.

Barney v. Latham, 103 U. S. 205, followed.

2. SAME-WARRANTOR.

And one who was not sued by the plaintiff, but was brought into the suit as warrantor, on the motion of the defendant, has the same right to remove as if he had been an original defendant.

3. LANDLORDS AND WARRANTORS-SECTIONS 4788, 4789, REVISED CODE OF TEXAS. The same rights are given landlords in suits for lands by section 4789 of the Revised Code of Texas, as in the same kind of suits are given to owners and warrantors by section 4788 of same Code.

Walton, Greene & Hill, for the motion.
Hancock & West, contra.

PARDEE, C. J. The above cases have been up and heard three times on motions to remand to the state court from which they were removed:

First. Before Judge Duval at the October term, 1879, who denied the motion, giving elaborate reasons. The statement of the case, the grounds of motion, and the reasons of Judge Duval, are reported in 10 Cent. Law J. 47. Second. Before Judge Woods, then circuit judge, at the October term, 1880, who also denied the motion, but who afterwards expressed himself as dissatisfied with his decision and suggested a reargument. Third. Before me at this term.

Since the decision of Judge Woods, the points involved have been passed upon by the supreme court in the case of Barney v. Latham, 103 U. S. 205, with Judge Woods (now Justice Woods) on the bench and not dissenting.

In that case it was decided that under the second clause of the second section of the act of March 3, 1875, when in any suit mentioned.

*Reported by Joseph P. Hornor, Esq., of the New Orleans bar.

v.10,no.7-44

therein there is a controversy wholly between citizens of different states which can be fully determined as between them, then either one or more of the plaintiffs or the defendants actually interested in such controversy may, on complying with the requirements of the statute, remove the entire suit.

In these cases under consideration it appears that at the time of application for removal the plaintiffs and all of the defendants, except Morgan C. Hamilton, were citizens of the state of Texas, and that defendant Hamilton was a citizen of New York. It further appears that the suits were actions of trespass to try title to real estate wherein defendant Morgan C. Hamilton is the grantor and warantor of title to all the other defendants.

Section 4788 of the Revised Statutes of the state provides that"When a party is sued for lands the real owner or warrantor may make himself or may be made a party defendant in the suit, and shall be entitled to make such defence as if he had been the original defendant in the action."

Section 4811 of the same provides that

"Any final judgment rendered in any action for the recovery of real estate, hereafter commenced, shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered,” etc.

Now, as Hamilton was a party entitled to defend and liable to be included by the judgment rendered, there must have been a controversy between him and other parties to the suit. It is easy to see that that controversy was as to whether Hamilton had acquired from his grantor a just title as owner of the property sued for, and was bound to warrant and defend this title of the other defendants. That controversy was between him and citizens of a different state, as all the other parties were citizens of Texas. It was wholly between him and citizens of a different state, as no other defendant appears to have been interested in the controversy except adversely to him. It seems, also, to be clear that the controversy between Hamilton and citizens of a different state was one which could be fully determined as between them. It further is shown that there was a controversy between Hamilton and the other defendants, all citizens of a different state from Hamilton, because it appears that under the statute Hamilton was brought into the case and made a party defendant on the motion of the other defendants.

Counsel very earnestly insists that the plaintiff has no controversy with Hamilton, and asks no judgment nor relief against him. This

may be true, and yet not affect the question, as we have seen in Barney v. Latham that if the proper controversy exists, and the proper steps are taken, the entire suit may be removed.

The case as it stands now only differs in condition from the way it was presented to Judge Duval, whose decision I have referred to, in so far as Hamilton's position as a grantor and warrantor differs from what it would be as landlord to the other defendants. Counsel for mover concurs fully in the correctness of the decision rendered by Judge Duval.

An examination of section 4789, Rev. Code of Texas, shows that exactly the same rights are given the landlord in suits for lands as in the same kind of suits are given to owners and warrantors by section 4788 of the same Code hereinbefore cited, and I am unable to see any substantial distinction that can be drawn between the cases. Where the tenant is sued and the landlord is brought in, the whole burden falls on the landlord; and if the plaintiff recovers, while the tenant is evicted, the landlord is bound for his damages. Where the grantee is sued and the warrantor is brought in, the whole burden falls on the warrantor; and if the plaintiff recovers while the grantee is evicted, the warrantor is bound for his damages. In the one case the tenant may recover for his improvements precisely as the grantee may in the other.

The other questions raised on the motion to remand are finally settled by the decision of Judge Duval, supra. See Cole Silver Mining Co. v. Virginia Co. 1 Sawy. 685.

It is proper to state that counsel have brought and reargued this motion to remand on the suggestion of Judge Woods, and that, therefore, while the motion is denied, the costs made will follow the judgment in the case as finally determined.

Let judgment be entered denying the motion, without costs.

NOTE.

SUITS REMOVABLE. The suits which are removable under this section are suits of a civil nature, at law or in equity, and it does not extend to criminal cases. (a) The fact that the claim is legal as distinguished from equitable has no bearing on the question of the right of removal.(b) So, where an action commenced in a state court in which the distinction between legal and equitable procedure is done away with, is removed, it is removed to that side of the court where appropriate relief can be obtained.(c) The suit must be a suit within the meaning of the state law;(d) and where there is no controversy the suit cannot be removed, (e) as where default has been made.(ƒ)

The jurisdictional limitation as to the amount in controversy has reference to the sum in dispute between the plaintiff and the defendant.(g) The claim of the plaintiff and not the counter-claim of the defendant should fix the amount in dispute;(h) and the petition should affirmatively state the amount;() and if the amount in dispute exceeds $500, exclusive of costs, at the time of the application, the case is removable, although the requisite amount did not exist when the suit was commenced.(j) The sections of the statute of 1875 should be construed together, and the remedy should not be allowed, where the plaintiff is assignee, unless the assignee might have brought suit in the federal court;(k) so, a party cannot acquire the right to remove by purchasing the interest of a co-defendant.(7)

Whenever the decision of a case depends upon the construction of the constitution of the United States, an act of congress, or treaty, the case may be removed if the matter in dispute exceeds $500.(m) A suit arises whenever upon the whole record there is a controversy involving the construction of either;(n) but they must be directly and not incidentally called in question;(0) and if a suit involves a federal question it may be removed, although other questions founded on principles of general law may be involved;(p) and although a state is plaintiff;(9) and the citizenship of the parties has nothing to do with the question.(7) If the plaintiff is a corporation, created by an act of congress, the case arises under the laws of congress;(s) but it is otherwise in the case of a national bank.(t) Cases involving questions under the bank

(a) Rison v. Cribbs, 1 Dill. 184; Green v. U. S. Wall. 653; State v. Grand Trunk Ry. 3 Fed. Rep. 887.

(b) Ketchum v. Black River Lumber Co. 4 Fed. Rep. 139.

(c) Benedict v. Williams, 10 Fed. Rep. 208. (d) In re Iowa & M. Const. Co. 6 Fed. Rep. 799. (e) Shumway v. Chicago & Iowa R. Co. 4 Fed. Rep. 385; Fashnacht v. Frank, 23 Wall. 416. (f) Berrian v. Chetwood, 9 Fed. 678.

(g) N. Y. Silk Manuf'g Co. v. Second Nat. Bank. 10 Fed. Rep. 204.

(h) Falls Wire Manuf'g Co. v. Broderick, 6 Fed.
Rep. 654.
Contra, Clarkson v. Manson, 4 Fed.
Rep. 257,

(i) Keith v. Levi, 2 Fed. Rep. 743.
(j) Clarkson v. Manson, 4 Fed. Rep. 257.
(k) Berger v. Douglas Co. 5 Fed. Rep. 23.
(1) Temple v. Smith, 4 Fed. Rep. 392.

(m) Gold Washing & W. Co. v. Keyes, 96 U. S. 199; Woolridge v. McKenna, 8 Fed. Rep. 650; Connor v. Scott, 4 Dill. 242; New Orleans, M. & T. R. Co. v. Mississippi, 102 U. S. 135.

(n) Cohens v. Virginia, 6 Wheat. 264; Mayor of N. Y. v. Cooper, 6 Wall. 247; Tennessee v. Davis, 100 U. S. 275; Van Allen v. Atchison, C. & P. R. Co. 3 Fed. Rep. 545; Hatch v. Wallamet Iron B. Co. 11 Law Rep. (N. S.) 630.

(0) State v. Bowen, 8 Rich. (N. S.) 382.
(p) Connor v. Scott, 4 Dill. 242.

(9) New Orleans, M. & T. R. Co. v. State, 13 Chi. Leg. News, 93.

(r) Wilder v. Union Nat. Bank, 12 Chi. Leg. News, 75.

(*) Union Pac. R. Co. v. Macomb, 1 Fed. Rep. 799.

(1) Pettilon v. Noble, 7 Biss. 449.