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Argument for Petitioner.

curities are, as alleged in said complaint, invalid and void; and that such controversy is a separable and distinct controversy between the plaintiff and this petitioner.

"That a complete determination of said controversy can be had without the presence of any of the defendants in this action other than this petitioner; and that all of said other defendants are neither indispensable nor necessary parties to the complete determination of said controversy.

"That the foregoing controversy, which is solely between the plaintiff and the petitioner, must be determined before any other controversy alleged in the complaint can be considered and determined; and that said controversy between the plaintiff and this petitioner, as above set forth, is separate and distinct from any other or further controversy.

"That said fundamental and primary controversy herein between the plaintiff and this petitioner is a controversy wholly between citizens of different States-to wit: Between the plaintiff, a citizen of the State of New York, and this petitioner, a citizen of the State of Ohio."

The cause was removed, and Pollitz made a motion to remand, which was denied by the Circuit Court, Lacombe, J., presiding.

Pollitz thereupon applied to this court on March 18 for leave to file a petition for a writ of mandamus directing the cause to be remanded to the state court. Leave to file was granted March 25, and a rule was entered thereon returnable April 8, to which return was duly made to the effect that the order denying the motion of Pollitz to remand the cause had been made and entered in the exercise of the jurisdiction and judicial discretion conferred upon the circuit judge by law and for the reasons expressed in his opinion filed with the order. The case was heard on the return to the rule.

Mr. Roger Foster for petitioner:

The Circuit Court of the United States had no original jurisdiction of the case, since the presence of all the defendants

Argument for Petitioner.

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was indispensable to an adjudication concerning any part of the relief prayed against the Wabash Railroad Company. There can be no right to the removal of the case of a controversy, of which that court could not have taken original jurisdiction. Ex parte Wisner, 203 U. S. 51.

There can be no separable controversy where all the parties are indispensable to the determination of the matters in dispute between the plaintiff and the defendant, who seeks a removal.

There can be no removal, when an indispensable party to the controversy is a citizen of the same State as any party on the side opposite to him. When the removal is because there are two controversies, the case must be separable into parts, so that in one of them a controversy will be presented wholly between citizens of different States, which can be fully determined without the presence of the other parties. Gardner v. Brown, 21 Wall. 36; Hyde v. Ruble, 99 U. S. 407; Fraser v. Jennisen, 106 U. S. 191; Winchester v. Loud, 108 U. S. 130; Shainwald v. Lewis, 108 U. S. 158; Ayers v. Wiswall, 112 U. S. 187; St. Louis & S. F. R. Co. v. Wilson, 114 U. S. 60; Torrence v. Shedd, 144 U. S. 527; Merchants' Cotton Press & Storage Co. v. Insurance Co. of North America, 151 U. S. 368; Bixby v. Couse, Fed. Cas. No. 1451; S. C., 8 Blatchf. 73; Maine v. Gilman, 11 Fed. Rep. 214; Connell v. Utica, U. & E. R. Co., 13 Fed. Rep. 241; New Jersey Zinc & Iron Co. v. Trotter, 18 Fed. Rep. 337; Gudger v. Western N. C. R. Co., 21 Fed. Rep. 81; Capital City Bank v. Hodgin, 22 Fed. Rep. 209; Snow v. Smith, 88 Fed. Rep. 657; Insurance Co. of North America v. Delaware Mut. Ins. Co., 50 Fed. Rep. 243; Burke v. Flood, 1 Fed. Rep. 541; Lyddy v. Gano, 26 Fed. Rep. 177; Perrin v. Lepper, 26 Fed. Rep. 545; Vinal v. Continental Const. & Imp. Co., 35 Fed. Rep. 673; Rogers v. Van Nortwick, 45 Fed. Rep. 513; Barth v. Coler, 60 Fed. Rep. 466; Carter v. Scott, 82 Georgia, 297; S. C., 8 S. E. Rep. 421; Burch v. Davenport & St. P. R. Co., 46 Iowa, 449; S. C., 26 Am. Rep. 150; Succession of Townsend v. Sykes, 38 La. Ann. 410; National

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Argument for Petitioner.

Docks & New Jersey Junction Connecting Ry. Co. v. Pennsylvania R. Co., 52 N. J. Eq. (7 Dick.) 58; S. C., 28 Atl. 71.

Where there are separate remedies against the several parties upon the same cause of action, there is no separable controversy. Gudger v. Western N. C. R. Co., 21 Fed. Rep. 81; Winchester v. Loud, 108 U. S. 130; Merchants' Cotton Press & Storage Co. v. Insurance Co. of N. A. 151 U. S. 368; Ayers v. Wiswall, 112 U. S. 187.

Where defendants are interested in separate parts of the same subject matter, no separable controversy is presented. Temple v. Smith, 4 Fed. Rep. 392; Merchants' Nat. Bank v. Thompson, 4 Fed. Rep. 876; Freidler v. Chotard, 19 Fed. Rep. 227; In re City of Chicago, 64 Fed. Rep. 897.

The trustees of the new mortgage, the issue of bonds under which is attacked, and probably some other representatives of the bondholders, by whom the complaint prays that a reexchange may be compelled of whatever has been exchanged, and that a further exchange may be enjoined; the depositary of the new securities, the registrar of the new stock, and the directors charged with fraud, are all indispensable parties to the relief here sought. Brown v. Trousdale, 138 U. S. 389.

Every party to a contract is a necessary party in a suit to set it aside, or unless its performance would amount to a nuisance to enjoin a person from bringing it into effect. Northern Ind. R. Co. v. Michigan C. R. Co., 15 How. 233; Shields v. Barrow, 17 How. 130; Coiron v. Millaudon, 19 How. 113; Gaylords v. Kelshaw, 1 Wall. 81; Ribon v. Railroad Cos., 16 Wall. 446; Lawrence v. Wirtz, 1 Wash. C. C. 417; Tobin v. Walkinshaw, 1 McAll. 26; Bell v. Donohoe, 17 Fed. Rep. 710; Florence S. Mach. Co. v. Singer Mfg. Co., 4 Fisher's Pat. Cas. 329; S. C., 8 Blatchf. 113; Chadbourne v. Coe, 45 Fed. Rep. 822; Empire C. & T. Co. v. Empire C. & M. Co., 150 U. S. 159; New Orleans W. Co. v. New Orleans, 164 U. S. 471; S. C., in C. C. A. 51 Fed. Rep. 479; Clarke v. Great Northern Ry. Co., 81 Fed. Rep. 282; Wall v. Thomas, 41 Fed. Rep. 620; Raphael v. Trask, 118 Fed. Rep. 777.

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Since both the debenture bondholders and the holders of the new bonds are numerous, it is absolutely indispensable that some one should be made a party to protect their interests. The trustee of the mortgage is, consequently, an indispensable party. Ribon v. Railroad Co., 16 Wall. 446; Wenger v. Chicago & E. R. Co., 114 Fed. Rep. 34.

The bondholders' committee is also an indispensable party, being a party to the original contract which provided for this illegal exchange of securities. Farmers' Loan & Trust Co. v. Cape Fear & Y. V. Ry. Co., 71 Fed. Rep. 38.

The trustee of an active trust is always an indispensable party. Knapp v. Railroad Co., 20 Wall. 117; Rust v. Britol Silver Co., 58 Fed. Rep. 611; Tell v. Walker, Fed. Cas. No. 13,812; Thair v. Life Association of America, 112 U. S. 717; Pepper v. Fordysche, 119 U. S. 469.

The registrar of the stock, the Mercantile Trust Company, and the United States Mortgage and Trust Company, which is the depositary of the new bonds, are also indispensable parties.

It is well settled that a stakeholder in the possession of property is an indispensable party to a suit affecting the same. Wilson v. Oswego Twp., 151 U. S. 56; Massachusetts & S. Constr. Co. v. Cane Creek Twp., 155 U. S. 283; Scoutt v. Keck, 73 Fed. Rep. 900.

The remand was not denied because of the pendency of any other suit in the Federal court; and had that been so, it would have been no justification for the removal.

Neither the opinion of Judge Lacombe, nor his order, nor the petition for the removal, makes any reference to any previous suit in the Federal court, as an alleged ground for the removal. The respondents are bound by the record below. They cannot ask this court to take judicial notice of papers below that are not recited in the order.

Were it otherwise, the courts would be liable to be misled by garbled statements of the contents of their records, not verified by affidavit, nor by the certification of the clerk. Thornton v. Carson, 7 Cranch, 596; Pennsylvania Co. v. Ben

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Argument for Respondents.

der, 148 U. S. 255; Rout v. Ninde, 118 Indiana, 123; S. C., 20 N. E. Rep. 704; Magee v. Hartzell, 7 Kan. App. 489; S. C., 54 Pac. 129; Dours v. Cazentre, McGloin (La.), 251; Stockbridge v. Fahnestock, 87 Maryland, 127; S. C., 39 Atl. 95; Scott v. Scott, 17 Maryland, 78; Cherry v. Baker, 17 Maryland, 75; Lyon v. Boilvin, 7 Illinois, 629.

Were the record of the suit, to which the respondents referred, to be examined, it would be found to be entirely different from that which is the subject of the present review, and that the present case in no respect could be deemed ancillary to the same.

Even, however, were the suit below ancillary to one previously brought, of which there is no suggestion in the pleading or the record, still that would constitute no ground for the removal.

In Gilmore v. Herrick, 93 Fed. Rep. 525, Judge Taft said: "There is no language in any removal act which justifies the removal of a cause from a state court to a Federal court, on the ground that it is ancillary to a suit in a Federal court." To the same effect are Ray v. Pierce, 81 Fed. Rep. 881; Pitkin v. Cowen, 91 Fed. Rep. 599; State Trust Co. v. Kansas City, P. &. G. R. Co., 110 Fed. Rep. 10.

Mandamus is the proper remedy.

It would be a needless waste of time of the court below to reserve a decision upon this vital point of jurisdiction until after a final hearing on the merits. Ex parte Wisner, 203 U. S. 51.

Mr. Rush Taggart, with whom Mr. Lawrence Greer was on the brief, for respondents:

Mandamus is not the proper remedy.

Where the record discloses no lack of jurisdiction, and where judicial acts have been performed by the inferior court, these may not be reviewed in any other manner than that properly prescribed through writ of error or appeal. United States v. Lawrence, 3 Dall. 42; Ex parte Bradstreet, 7 Pet. 634; Ex parte Bradley, 7 Wall. 364; Ins. Co. v. Comstock, 16 Wall. 258;