the debts aforesaid "were due for the purchase money for said property." The answer of each of the Robinsons, and that of Haymond and Magruder, denies the allegations of the complaint in this respect, and asserts the integrity and validity of the mortgage to Robinson.

The plaintiff also alleges that the defendants Hawkett & Robinson have taken out of the mine $3,000 worth of gold dust which they have failed to account for; but this is denied by the answer of Robinson.

The defendant Hawkett has not answered. He and E. C. and Jesse Robinson are citizens of California. The plaintif and the rest of the defendants, namely, Irwin, Smith, Kubli, Gazley, Fink, Haymond, and Magruder, are citizens of Oregon.

A receiver was asked for and appointed by the state court, and the property is still in his possession. An injunction was also allowed against the Robinsons.

The complaint asks that an account be taken of the products and expense of the mine since August 21, 1878; that the priority of the liens be determined; that said contract be enforced; that Hawkett and the Robinsons be required to pay the debts aforesaid and the costs of this suit, and that in default thereof their interest in the property be sold and the proceeds applied to pay the same according to their priority. On the argument of the motion the objection that the petition for removal was not filed in time was abandoned. other grounds of the motion are, in effect, that all the defendants are not citizens of California, and did not join in the petition for removal; and that the controversy in the suit cannot be determined without the presence of the defendants Magruder and Haymond.

The

This removal, if sustained, must rest upon section 2 of the act of March 3, 1875, (18 St. 470,) which reads: "That any suit of a civil nature, at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their

authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state, claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects, either party may remove said suit into the circuit court of the United States for the proper district; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district."

In Removal Cases, 100 U. S. 468, it was held by the supreme court that under the first clause of this section, where a controversy involved in the suit "is between citizens of one or more states on one side, and citizens of other states on the other side, either party to the controversy may remove the suit to the circuit court, without regard to the position they occupy in the pleadings as plaintiffs or defendants. For the purposes of a removal the matter in dispute may be ascertained, and the parties to the suit arranged on opposite sides of that dispute. If in such arrangement it appears that those on one side are all citizens of different states from those on the other, the suit may be removed. Under the old law the pleadings only were looked at, and the rights of the parties in respect to the removal were determined solely according to the position they occupied as plaintiffs or defendants in the suit. Coal Co. v. Blatchford, 11 Wall. 174. Under the new law the mere form of the pleading may be put aside, and the parties placed on different sides of the matter in dispute according to the facts. This being done, when all those on one side desire a removal it may be had, if the necessary citizenship exists."

The opinion was announced by the chief justice, and while the court was unanimous in its judgment concerning the cases under consideration, Mr. Justice Bradley, Strong, and

Swayne dissented from so much of the opinion as seemed to assume that under the first clause of section 2 of said act of 1875 a removal could not be had unless each party to the controversy is "a citizen of a different state from that of which either of the parties on the other side is a citizen," and held that a "controversy," within the meaning of the constitution and the act, may exist between citizens of different states and also of the same state; but that notwithstanding, when any of the parties to such controversy are citizens of a different state from any other of such parties,— when "any of the contestants on opposite sides of the concontroversy are citizens of different states,"-a removal may be had by such party.

In Gaines v. Fuentes, 92 U. S. 20, Mr. Justice Field said: "A controversy was involved in the sense of the statute [March 2, 1867; 14 St. 558] whenever any property or claim of the parties, capable of pecuniary estimation, was the subject of litigation, and was presented by the pleadings for judicial determination." In this case there is a controversy (1) between Bybee and Jesse Robinson as to whether the latter was a member of the firm of Hawkett & Robinson, and is therefore liable to him accordingly; (2) between the same parties as to the validity and effect of Robinson's alleged mortgage; (3) between Bybee and Hawkett and the Robinsons - one or both of them, as the case may be-concerning the alleged liens of the debts assumed and alleged to have been assumed by Hawkett & Robinson; and (4) between the same parties concerning the working and disposition of the products of the mine.

These controversies are all between citizens of different states, and the parties to them also stand in the pleadings as plaintiffs and defendants in the suit-Bybee, a citizen of Oregon, on the one side, and Hawkett and the Robinsons, citizens of California, on the other. It matters not what other controversies or parties there are in or to the suit. Under even the first clause of the section, and according to the restrained construction put upon it by the majority of the court in the Removal Cases, supra, the existence of these

controversies in the suit authorizes its removal upon the application of either of the parties thereto; that is, all of the parties on either side of them.

But Hawkett did not apply for the removal, and although he has now no interest in the subject-matter of the suit, and might, therefore, be regarded as a mere nominal party, still, as it is claimed that he is personally liable to the plaintiff in this suit, upon his alleged promise to pay the debts assumed by Hawkett & Robinson at the time they purchased the property, it will be assumed that the cause was not removable under the first clause of the section.

The second clause of the section has not been passed upon by the supreme court, but in Taylor v. Rockefeller, 18 Law Reg. 301, Mr. Justice Strong expresses the opinion that under this clause, whenever, in a suit mentioned in the section, there is a controversy, even if it is not the main controversy therein, which is wholly between citizens of different states, and which can be fully determined as between them, then any one of the plaintiffs or defendants actually interested in such controversy may remove the suit into the circuit court. He says: "The right of removal is given where any one of those controversies is wholly between citizens of different states, and can be fully determined as between them, though there may be other defendants actually interested in other controversies embraced in the suit. The clause, 'a controversy which can be fully determined as between them,' read in connection with the other words, 'actually interested in such controversy,' implies that there may be other parties to the suit, and even necessary parties, who are not entitled to remove it. Indeed, according to the literal reading of the statute, (a reading quite in harmony with the constitution,) the right of removal and the jurisdiction of this court exist, though the controversy between the plaintiffs and defendants, who are the petitioners for the removal, be not the main controversy in the case. And there is no necessary embarrassment attending such removal. The entire suit is removed because of the controversy it involves between citizens of different states, and the circuit court, having

thus obtained jurisdiction, 18 competent to determine all the controversies involved between the plaintiffs and the other defendants. The other questions are regarded as incidental."

It is difficult to conceive of any other effect being given to this clause. Its language is so clear and explicit there is no room for construction. It must be taken to mean what it says, and say what it means. There is no suggestion of any particular kind or degree of controversy as a main or principal one, or a minor or incidental one; so that the controversy is wholly between citizens of different states, and one which can be fully determined as between them. The right of removal exists in favor of any plaintiff or defendant in the suit actually interested in such controversy. All the controversies which I have mentioned as existing in this case come within this category. They are wholly between citizens of different states, and can be fully determined as between them, and the petitioners for the removal are actually interested in them.

The grant of judicial power to the United States expressly includes all such controversies, (Const. U. S. art. 4, § 2,) and its courts are not precluded from its exercise because other parties and controversies are or may be incidentally or otherwise involved in the suit for the determination thereof, or in which they exist.

In a case lately decided in the supreme court-The New Orleans M. & T. Ry. Co. v. The State of Mississippi-where it was held that a case arising under an act of congress was removable under section 2 of the act of 1875, Mr. Justice Harlan, in speaking for the court, says "that it is not sufficient to exclude the judicial power of the United States from a particular case, that it involves questions which do not at all depend on the constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the constitution forms an ingredient of the original cause, it is within the power of congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it."

But, even upon the theory that the controversy which