S. 547; Albright v. Teas, 106 U. S. 613, 1 Sup. Ct. Rep. 550; Manufacturing Co. v. Hyatt, 8 Sup. Ct. Rep. 756. The controversy does not involve the validity or the construction of the patent. In nowise whatever is the patent drawn in question, and therefore the decision in Littlefield v. Perry, 21 Wall. 205, does not apply. In truth the case springs altogether out of a contract, and the manifest purpose of the suit is to enforce that contract. The infringement of the patent is not the real ground of the action. Indeed, without the recited agreement the bill would have no solid basis. Clearly one part owner of a patent cannot maintain a suit for infringement against his co-owner. Manufacturing Co. v. Gill, 32 Fed. Rep. 697, 702. Now, Keller is not a nominal defendant here. The bill contains special matter of complaint against him, and all the prayers for relief include him. Then the other defendants stand in such relation to Keller that they cannot be treated as infringers; so that, whatever case the plaintiff may have against any of the defendants is to be referred to the contract, the breach of which is the graramen of the bill. There is no question in the case depending upon the construction or effect of the patent laws. True, section 4898, Rev. St., enacts that "every patent, or interest therein, shall be assignable in law by an instrument of writing," and provision is made for recording such "assignment, grant, or conveyance" in the patent-office for the purpose of notice to subsequent purchasers or mortgagees. But a collateral agreement between assignor and assignee, such as we have here, restrictive of the power to dispose of their respective interests in the patent, and governing their rights in the use of the invention, whether incorporated in the instrument of assignment or not, is not provided for or regulated by section 4898, or by any act of congress. That the rights of the parties under such contracts depend altogether on common-law and equity principles, is the declared doctrine of all the above-cited decisions of the supreme court. Let a decree be drawn dismissing the bill for want of jurisdiction, with costs. NOTE. PATENTS JURISDICTION OF STATE AND FEDERAL COURTS. Plaintiff assigned to defendant one-third of the right to an invention. The patent-office divided the application for the patent into three applications for as many inventions, Held, that the question whether this subdivision divested defendant of his interest in one of the patents issued was purely one of patent law, of which the circuit court of the United States had jurisdiction. Puetz v. Bransford, 32 Fed. Rep. 318. On application for an injunction to prevent defendant from assigning a patent, held, that if complainant's case were founded solely upon some contract with defendant, it did not arise under the patent laws, and the circuit court of the United States would have no jurisdiction. WatchCase Co. v. Leach, ante, 2. In Store-Service Co. v. Clark, (N. Y.) 3 N. E. Rep. 335, MILLER, J., says: "It is very apparent that cases may arise upon contracts relating to patents and their validity, which are especially within the power and jurisdiction of the state courts; but it by no means follows necessarily that this jurisdiction confers upon the state courts the right to adjudicate and determine questions arising as to infringements made upon rights and privileges which are secured by patents issued by the government. The interpretation of the contract, the effect to be given to its various parts, and even the right to the patent, may well be the subject of consideration within the courts of the state; while any interference beyond this is in contravention of the general rule that in such an action the jurisdiction rests exclusively within the courts of the United States. " See, also, Manufacturing Co. v. Reinoehl, (Ñ. Y.) 6 N. E. Rep. 264. COOLEY v. MCARTHUR et al. (Circuit Court, E. D. Michigan. July 2, 1888.) 1. REMOVAL OF CAUSES-ACTION AGAINST NON-RESIDENT-ALIEN ACT OF 1887. The circuit courts of the United States have jurisdiction, by removal, of a suit begun in a state court by a resident citizen against a non-resident alien defendant, notwithstanding the provision of the act of 1887 that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant. "1 2. SAME. In such case jurisdiction exists by virtue of the citizenship of the plaintiff and alienage of the defendant, and the provision that the defendant shall not be sued in any other district than that of which he is an inhabitant is only a privilege, of which he may or may not avail himself, as a personal exemption from suit within such other jurisdiction.1 (Syllabus by the Court.) On Motion to Remand. This was an action of tort begun in the circuit court for the county of Wayne by a citizen of Michigan against non-resident alien defendants, and removed to this court upon petition of defendants. Plaintiff moved to remand upon the ground that defendants, not being inhabitants of of this district, within the meaning of section 1 of the act of March, 1887, the case is not one of which this court would have had original jurisdiction, and therefore, under section 2, it can have no jurisdiction by removal. Alfred Russell, for plaintiff. H. C. Wisner, for defendants. BROWN, J. By the first section of the act of March, 1887, the circuit courts are given original cognizance of all suits of a civil nature involving upwards of $2,000, in which there shall be "a controversy between citizens of a state and foreign states, citizens, or subjects," with the further proviso that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant," with an exception to this proviso not necessary to be noticed here. By the second section the right of removal is limited to cases "of which the circuit courts of the United States are given original jurisdiction by the preceding section," and a further clause provides that such right can only be exercised "by the defendant or defendants therein being non-residents of that state." It necessarily follows that, if this court would have original jurisdiction of an action against a non-resident alien, we have jurisdiction of this case; otherwise, not. The language of the first section indicates very strongly that if the defendant chose to plead in abatement of such a suit the plea would be sustained. We regard it as clear, however, that if such plea were not interposed, and the defendant pleaded in bar, 2 See note at end of case. it would be a waiver of such plea, and the judgment would be valid. The difficulty arises from a misapprehension of the distinction between cases of which a court has not jurisdiction, and cases in which the defendant is privileged from suit within the jurisdiction. In the first class of cases all the facts necessary to give the court jurisdiction must be averred in the pleadings, or the judgment will be a nullity. In the second class no averment is necessary; the privilege is one which may be waived, and is waived by a plea of the general issue. The case under consideration falls within the latter category. As the action is between a citizen and an alien, and it so appears by the pleadings, the court has jurisdiction of the case; and as the defendants themselves have invoked this jurisdiction, their action is a clear waiver of any personal privilege as to them, and it does not lie in the mouth of the plaintiff to make the claim for them. The distinction here drawn is by no means a novel one. So long ago as 1823 Mr. Webster moved to dismiss the case of Gracie v. Palmer, 8 Wheat. 699, upon the ground that there was no averment in the record that the defendant in the circuit court was an inhabitant of the district, or was found therein at the time of serving of the writ. Mr. Chief Justice MARSHALL stated, however, that the uniform construction under the judiciary act had been that it was not necessary that this averment should appear upon the record; "that it was sufficient if the court appeared to have jurisdiction by the citizenship or alienage of the parties. The exemption from arrest in a district in which the defendant was not an inhabitant, or in which he was not found at the time of serving of the process, was the privilege of the defendant, which he might waive by a voluntary appearance; that if process was returned by the marshal as served upon him within the district, it was sufficient; and that where the defendant voluntarily appeared in the court below, without taking the exception, it was an admission of the service, and a waiver of any further inquiry into the matter." In the more recent case of Ex parte Schollenberger, 96 U. S. 369-378, Mr. Justice WAITE observed: "The act of congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases; and certainly jurisdiction will not be ousted because he has consented." See, also, Page v. City of Chillicothe, 6 Fed. Rep. 599. In the light of these authorities there can be no question that, if this suit had originally been begun in this court, and the defendant had, with or without service of process upon him, entered his appearance and pleaded to the merits, the court might have lawfully proceeded with the the case; in other words, the court would have had full jurisdiction. Practically the same view of this question is taken by Judge SHIRAS in Fules v. Railway Co., 32 Fed. Rep. 673-676, and by Judge HAMMOND in Gavin v. Vance, 33 Fed. Rep. 84. It results that the motion to remand must be denied. NOTE. REMOVAL OF CAUSES-CITIZENSHIP OF PARTIES-ACT MARCH 3, 1887. Under act Cong. March 3, 1887, defining the jurisdiction of federal courts, which provides that when jurisdiction is founded on the fact that the action is between citizens of different states suit shall be brought only in the district where either the plaintiff or defendant resides. an action brought in the state court of plaintiff's district against a non-resident defendant may be removed to the federal court by the defendant, Tiffany v. Wilce, 34 Fed. Rep. 230; and he may remove it to the federal court of the district of which plaintiff is a resident, Mining Co. v. Markell, 33 Fed. Rep. 386; Swayne v. Insurance Co., ante, 1. But a defendant cannot remove a cause brought in a state court of the state of his residence. Anderson v. Appleton, 32 Fed. Rep. 855; Weller v. Tobacco Co., Id. 860. Foreign corporations sued in a state court by a citizen of the state have a right to remove the cause, under the statute. Wilson v. Telegraph Co., 34 Fed. Rep. 561; County Court v. Railroad Co., ante, 161; Railroad Co. v. Ford, d. 170. JOHNSON V. ACCIDENT INS. Co. OF NORTH America. (Circuit Court, W. D. Michigan. June 19, 1888.) REMOVAL OF CAUSES-PROCEDURE AFTER REMOVAL--PLEA IN ABATEMENT TO PETITION FOR REMOVAL. A plea in abatement to a petition to remove a case from a state to a federal court will not be tested by technical rules, but it is sufficient if it sets out fairly and with sufficient certainty matters of fact which, if true, negative the jurisdiction of the federal court.1 At Law. On demurrer. Action brought by Gertie Johnson in a state court against the Accident Insurance Company of North America. The cause was then removed to the circuit court of the United States for the Western district of Michigan on a petition of the defendant alleging that plaintiff was a citizen of the state of Michigan, and defendant a corporation organized and existing under the laws of the dominion of Canada. Plaintiff then filed the following plea, in the nature of a plea in abatement, to the petition: "And the said Gertie Johnson, plaintiff in this suit, by Wheeler, Bishop & Blodgett, her attorneys, comes, and prays judgment of the said defendant's petition for the removal of this cause from the circuit court for the county of Mason, state of Michigan, to this court, and whether this court will further retain jurisdiction of this cause, because she says that, at the time and before the commencement of her said action in the said circuit court for the county of Mason, she, the said plaintiff, was a citizen of Finland, and a subject of the czar of Russia, and that she never was a citizen of the state of Michigan, nor a citizen of any of the states or territories of the United States; and, further, that the said defendant, at the time of the commencement of said suit as aforesaid, and ever since, has been and now is a foreign corporation formed and existing under and by virtue of the laws of the dominion of Canada, as appears from said defendant's petition for the removal of this cause to this court; and this the said Gertie Johnson is ready to verify. Wherefore she 'As to pleading and procedure on removal of causes, see Railroad Co. v. Ford, ante, 170; Larson v. Cox, (Kan.) 18 Pac. Rep. 892, and note. prays judgment as aforesaid, and that this cause may be remanded to said circuit court for the county of Mason. GERTIE JOHNSON. "WHEELER, BISHOP & BLODGETT, Attorneys for Plaintiff." (Duly verified.) “And the said defendant, by Baker & Clark, its attorneys, saith that the said plaintiff's plea to this court's further retaining jurisdiction of said cause, and the matter in said plea contained, in manner and in form as the same are therein pleaded and set forth, are not sufficient in law to entitle said plaintiff to judgment upon said defendant's petition, (for the removal of said cause to this court,) and for the remanding of said cause to the circuit court for the county of Mason, and that the said defendant is not bound by the law of the land to answer the same; and this it is ready to verify, And the said defendant states and shows to the court the following causes of demurrer to the said plaintiff's plea, viz.: (1) Because the said plea of the said plaintiff to the jurisdiction of this court is not pleaded by said plaintiff in her own proper person, but by her attorneys; (2) because the said plaintiff's said plea states no new material matter as facts not contained in defendant's petition, except in contradiction to averments in said petition contained, and hath not concluded her said plea by putting herself upon the country; (3) because it does not appear from said plea that the circuit court for Mason county has jurisdiction of said cause, or of the parties thereto; (4) because it does not appear from said plea what court has jurisdiction of said cause, and over the parties thereto; (5) because it appears from said plea that the circuit court for Mason county has not jurisdiction of said cause, and of the parties thereto; (6) because it is not made to appear by said plea that the circuit court for Mason county has jurisdiction over the subject-matter of said suit, and has obtained jurisdiction over the parties thereto; and also that said plea is in other respects uncertain, informal, and insufficient. Wherefor, by reason of the insufficiency of said plea in this behalf, the said defendant prays for judgment that this court further retain jurisdiction of this cause. "BAKER & CLARK, Attys. for Deft." Wheeler, Bishop & Blodgett, (Fletcher & Wanty, of counsel,) for plaintiff. Baker & Clark, for defendant. SEVERENS, J., (orally.) This cause was instituted in a state court, and was thence removed upon the petition of the defendant, setting forth, among other things, that, at the time of the commencement of this suit, the plaintiff was a citizen of the state of Michigan, and the defendant a corporation organized and existing under the laws of the dominion of Canada, having its principal office in said dominion, and being, within the meaning of the acts of congress, a citizen of the said dominion of Canada. In due season the transcript was filed in this court, and within a short time thereafter the plaintiff applied to the court, by motion, (based upon affidavits designed to establish the fact that she had never been a citizen of the state of Michigan, but, on the contrary, had always been an alien, and a subject of the czar of Russia,) for an order remanding the cause to the state court. Upon the hearing of that application, I ruled that the disputed question of citizenship, disclosed by the petition for removal and the affidavits just referred to, could not properly be determined upon motion, nor be tried upon affidavits; and I then indicated to counsel some of the various methods of procedure in such cases which had |