that the mortgage of the appellants was inferior | chasers from Mandle of certain certificates of in lien to that of the appellees; and this was so clearly right that we are not inclined to hear an argument upon the question. The Act of Congress relied on by the appellants is now found in sections 4192 and 4193 of the Revised Statutes. These, so far as they are material to the present inquiry, are as follows: "Sec. 4192. No bill of sale, mortgage, hypothecation or conveyance of any vessel or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation or conveyance is recorded in the office of the collector of customs where such vessel is registered or enrolled. * * Sec. 4193. *** But no bill of sale, mortgage, hypothecation or conveyance or discharge of mortgage, or other incumbrance of any vessel, shall be recorded, unless the same is duly ac knowledged before a notary public or other officer authorized to take acknowledgment of deeds." To our minds, there is no doubt that Congress only intended to require that a mortgage on a vessel should be acknowledged for the purpose of authenticating it for record; and that, as between the parties and as against persons having actual notice thereof, it was valid without ac knowledgment or record. As this was the decision of the court below, we deny the motion to dismiss, and grant that made under Rule 6, to affirm. Affirmed. the Auditor of the Board of Public Works of the District of Columbia, which it was alleged were the property of the Paving Company. Mulford and Campbell, the appellees, were two of the defendants, but they were proceeded against as holders of separate and distinct certificates. Their liability as set forth in the bill was several only. There was no pretense of a joint obligation, and it is conceded that in no event could there be a recovery against either of them separately for more than $2,500. On the hearing, the bill was dismissed as to these defendants, and the Paving Company has appealed. We think it clear that we have no jurisdiction in this case. Although many defendants have been brought into the suit, the proceeding is, in fact, against each of the several purchasers, to enforce his separate and distinct liability. It is a joinder of distinct causes of action against distinct parties. The same decree is to be entered against each as in case of separate suits. The recovery, if any, must be against each defendant separately for the amount he may personally be found accountable. Such being the case, the value of the matter in dispute with each defendant must be the sum for which he is separately liable. It is well settled that neither co-defendants nor co-complainants can unite their separate and distinct interests for the purpose of making up the amount necessary to give us jurisdiction on an appeal. Seaver v. Bigelow, 5 Wall., 208 [72 U. S., XVIII., 595]; Rich v. Lambert, 12 How., 347; Oliver v. Alexander, 6 Pet., 143; Stratton v. Jarvis, 8 Pet., 4. In such cases the appeal of each separate defendant or complainant must stand or fall according as his own interest in the con BALLARD PAVING COMPANY ET AL., troversy exceeds or falls short of our jurisdic Appts., v. JOHN C. MULFORD ET AL. (See S. C., 10 Otto, 147, 148.) Jurisdiction as to amount-uniting claims. 1. In a suit in equity against two persons, in which there is no pretense of a joint obligation, and in no event can there be a recovery against either of them separately for more than $2,500, this court has no jurisdiction. 2. Neither co-defendants nor co-complainants can unite their separate and distinct interests for the purpose of making up the amount necessary to give this court jurisdiction on an appeal. [No. 441.] tional amount. The same principle applies here. For the purposes of an appeal, each separate controversy must be treated as a separate suit. Under this appeal, two separate controversies have been brought here, and in neither is the amount involved sufficient to give us ju risdiction. For this reason the appeal is dismissed. FRANCIS E. HINCKLEY, LATE RECEIVER, ETC., Appt., v. GILMAN, CLINTON AND SPRINGFIELD RAILROAD COMPANY. (See S. C., 10 Otto, 153-157.) Mr. Chief Justice Waite delivered the opin- Receiver, accounting of—when chargeable with ion of the court: This was a suit in equity brought by the Ballard Paving Company against Michael Mandle, and sundry persons who claimed to be pur interest. 1. A receiver in a suit in a state court, which was subsequently removed into the Federal Court, may be required to account in the latter court. 2. Where the receiver deposited the fund to his NOTE.-Jurisdiction of U. S. Supreme Court de-private account, and when examined declined to pends on amount; interest cannot be added to give make explanation, he was properly chargeable jurisdiction; how value of thing demanded may be with interest on it. shown; what cases reviewable without regard to sum in controversy. See note to Gordon v. Ogden, 28 U. [No. 90.] S. (3 Pet.), 33. Argued Dec. 2, 1879. Decided Dec. 15, 1879. The case is stated by the court. Messrs. G. W. & J. T. Kretzinger, H. Crawford and S. P. McConnell, for appellant. Mr. R. Biddle Roberts, for appellee. Mr Justice Miller delivered the opinion of the court: The main features of this case, as presented here on appeal, are embodied in the following statement signed by counsel: "To obviate the necessity of examining a large part of the very voluminous record filed in this cause, the following statement is agreed upon between the counsel of the parties to this branch of the case: Levi P. Morton et al., the holders of sundry bonds issued by the Gilman, Clinton and Springfield Railroad Company, secured by a deed of trust made to Thomas A. Scott and Hugh J. Jewett, as trustees, filed a bill in the Circuit Court of McLean County, State of Illinois, seeking a foreclosure of the trust-deed and a sale of the property for their benefit. Shortly prior to the filing of this bill, Joseph J. Kelly had filed a bill as a stockholder of said railroad in the same court, and Francis E. Hinckley, a citizen of Chicago, had been appointed receiver, and continued to discharge the duties of such officer pending the proceedings in both cases against the road. On June 23, 1875, Thomas A. Scott and Hugh J. Jewett, the trustees named in the deed of trust, came into said Circuit Court of McLean County, and became parties to the said suit of Morton et al. against the railroad; and from that time the litigation was carried on in their names, the receiver still acting in both cases, and reporting to the Circuit Court of McLean County. On the 13th day of. December, 1875, the said cause was removed to the Circuit Court of the United States for the Southern District of Illinois, under the provisions of the Act of Congress of March 8, 1875. Prior to this, on August 12, 1875, the property was ordered to be turned over to the trustees under the provisions of the mortgage, by order of the Circuit Court of McLean County, and the receiver directed to settle his accounts up to that date; and his accountability as such receiver ceased from the 28th day of August, 1875, the property having at that time been handed over by him to the agent of the trustees as aforesaid. The subsequent proceedings in the Circuit Court of the United States for the Southern District of Illinois aforesaid were carried to completion, the sole parties then in court being the trustees and their cestuis que trust, and the said Gilman, Clinton and Springfield Railroad Company and its receiver, all other parties having been dismissed from the record, the final decree having been had, and the road having been sold by virtue thereof and a deed for the same duly executed and approved by the said court, and no appeal ever having been prayed." The remainder of the record before us consists solely of the proceedings in the Circuit Court of the United States against Hinckley, as receiver, to bring him to account, resulting in a decree against him for $18,776.25, from which this appeal is taken. The first appearance of appellant in the Circuit Court of the United States, as far as this record discloses, is by a report made to that court entitled as of the case of Kelly v. R. R. Co. In this paper, after showing a balance of $12,799.78, in his hands as receiver, he proceeds to state sundry liabilities of that fund, for which he asks of the court an order that he may pay them. This report was filed March 23, 1876, and on that day an order was made that he pay the sum so admitted to be in his hands into court. It seems, however, that after this the whole matter of the receiver's account was referred to a master, on whose report, after exceptions by the receiver, the decree was rendered which is now under review. The chief reliance of counsel in this court for a reversal of the decree is upon the proposition that Hinckley was never receiver of any other court but the McLean Circuit Court of Illinois, in the suit in which Kelly and others were plaintiffs, and that he could be called to account only by the court to which he was responsible in that suit. But the agreed case shows that, shortly after his appointment as receiver in the Kelly suit, the foreclosure suit of Levi P. Morton and others, bondholders, was commenced in the same court, and afterwards adopted by Scott and Jewett, trustees for said bondholders, and that thereafter "The litigation was carried on in their names, the receiver still acting in both cases, and reporting to the Circuit Court of McLean County." This is also stated in a previous paragraph. We can reach no other conclusion from this agreement, in the absence of the record of the McLean Circuit Court on the subject, than that Mr. Hinckley was receiver in the principal case, which was removed into the Federal Court. There is other evidence that it was so understood by Hinckley. The order of removal was made December 13, 1875, and on the 23d of March 1876, we find him reporting, without objection, to that court, and asking for orders in the nature of instructions as to the disposition of the money in his hands. For aught that appears, this report was his own voluntary act, as well as his duty. Nor does any such objection appear in the exceptions to the master's report, nor was any exception taken to the order of reference. It does not appear from this record that the Kelly suit was prosecuted any further after the removal of the foreclosure suit into the Federal Court, nor do we know enough of its character to decide whether anything of it was left after the order of removal, or whether its subjectmatter was not necessarily removed with the other suit. No attempt to bring Hinckley to account in the state court is shown. Being voluntarily in the United States Court, in a suit where the funds in his hands might properly be distributed, at least under supposable circumstances, and having money in his hands as receiver in the suit removed into that court, we can see no want of authority to make him account for these funds. It is also urged that since the agreed facts show that the road had been finally sold and "Removal Cases." RAILROAD CONSTRUCTION COMPANY, Appt., v. MEYER LEWIS H. MEYER ET AL., Trustees. conveyed under the mortgage, the trustees had | DELAWARE Two objections are taken by appellant to the statement of the account by the master. The first is, that for nearly two years' service the master allowed him only $10,000, whereas he ought to have allowed him $1,000 per month. The principal witnesses of appellant to sustain this exception are two gentlemen who were themselves receivers of other roads, and thought they rightfully received $900 in one case and $1,000 in the other, per month. Perhaps they were the best judges of the value of their own services; but such is not always the case, and as there is conflicting testimony, and as this is the first time we have been called on to review the allowance made to railroad receivers by the circuit courts, we do not see that the economical administration of insolvent companies will be promoted, or that justice requires a higher standard of compensation than these courts generally give, to whose discretion the subject must be largely remitted. Appellant also complains that he is wrong. fully charged with $4,300 for the use of the money held by him as receiver. It does not very clearly appear how much of this money he so used, or how long he held it. But it does appear that the money as received was deposited in a bank at Springfield to his account as receiver, and that most of it was drawn from there on his check, and deposited to his private account with a bank in Chicago; and when on his examination as a witness he was asked to give explanations of this matter, and to state what sums he had so deposited, he declined to answer. Appellant was dealing with a trust fund. It was his duty to keep this money separate from his own. And if he used a bank for the custody of it, he should have had the account so kept as to show the fund to which it belonged. It was also his unquestionable duty, when called on in a proper case for accounting, as this was, to give all the information he had on the subject. His refusal to answer proper questions is wholly unjustifiable, and leaves his conduct open to criticism as to his motive. As he had it in his power to furnish the facts on which a just and true account could be stated. and refused to do so, we do not in this appeal feel authorized to reverse the finding of the master and the decree of the circuit court. The decree is, therefore, affirmed. Cited-103 U. S., 764. DELAWARE RAILROAD CONSTRUC TION COMPANY AND DELAWARE Appts., v. SAME. (See "Removal Cases," 10 Otto, 457-482.) Removal of causes- -form of petition-bond-application when made-before trial-failure to remove-mechanics' lien-security. 1. Under the Act of March 3, 1875, when the con troversy about which a suit in the state court is brought is between citizens of one or more States on one side, and citizens of other States on the other side, either plaintiffs or defendants may remove the suit to the circuit court. 2. The due form of a petition for removal, considered. 3. Where no objection was made in the state court on account of the petition not being signed, an objection on that account was too late in the cir cuit court. 4. The Act of Congress does not make it necessary that two persons should sign the bond as sureties. Where no objection was made to the pecuniary responsibility of one of the persons who signed as surety, and he was competent under the laws of the State to do so, it was error for the court to refuse to accept the bond because a second surety was an attorney of the court. 5. In suits pending when the Act was passed, the application was in time, if made at the first term of the court thereafter, 6. The petition must be filled in a way that it may be said to have been presented to the court before the trial is in good faith entered upon. The case must be actually on trial, before the right of removal is gone. moval and is forced to trial, he loses none of his 7. If a party fails in his efforts to obtain a rerights by defending against the action. 8. By the laws of Iowa, a mechanics' lien, for work done under a contract, takes precedence of all incumbrances put on the property by mortgage or otherwise after the work was commenced. 9. A clause in a contract between a construction company and a railroad company, that all the money for the work was to be paid from a certain source,does not give the construction company collateral security, and thus vitiate the lien." [Nos. 29, 30, 260.] Argued Oct. 30, 1879. Decided Dec. 15, 1879. zenship. There must be a controversy between citizens of different States when the petition for removal is LEWIS H. MEYER ET AL., Trustees, Piffs. filed, as well as at the commencement of the suit. The Removal Cases, supra; Chic., St. L. & N. O. R. R. Co. v. McComb, 17 Blatchf., 371; Beebe v. Cheeney, 11 Reporter, 364; Bruce v. Gibson, 9 Fed. Rep., 540; Curtin v. Decker, 5 Fed. Rep., 385; Kaiser v. Ill. Cent. R. R. Co., 6 Fed. Rep., 1. One of the parties must be a citizen of the State where the suit is brought; if the plaintiff is an alien, ware Railroad Construction Company, also an Iowa Corporation, for the construction of that part of its railroad lying in Delaware County, Iowa. The contract contained full specifications of the work to be performed and the prices to be paid, and concluded as follows: The prices above specified are to be in full compensation for all materials and labor required to put the same into the work herein contracted for, and complete the same in all respects as provided in this contract. In order to enable the contractor to prosecute the work advantageously, the said engineer shall make an estimate from time to time, not oftener than once per month, as the work progresses, both on work done and materials delivered on the line of said railroad. The said party of the second part will pay in current money eighty per cent of the amount of said estimate; twenty (20) per cent of the estimates, as they are made to the party of the first part, may be retained by the party of the second part as damages in case of a forfeiture of this contract; which said (20) twenty per cent, together with the whole amount of this contract, according to the terms thereof, and on the estimate of the engineer, shall be paid to the party of the first part within thirty days after all the work herein contracted for is completed and accepted by the engineer. 'Qual ified below.' All the money for the work herein before specified to be paid by the citizens of Delaware County. H. PRICE, Prest. Dav. and St. Paul R. R. Co." The work under this contract was commenced September 29, 1870, and completed October 31, 1872. On the 20th of December, 1872, the Construction Company filed in the office of the clerk of the District Court of Delaware County the statements and accounts required by the laws of Iowa to secure a mechanics' lien on the part of the railroad which had thus been completed. The balance claimed to be due was $71,165.58. On the 4th of June, 1872, there was filed for record in the office of the recorder of Delaware County a mortgage, bearing date July 1, 1871, but acknowledged May 16, 1872, whereby the Railroad Company conveyed its entire line of railroad, including with the rest that built by the Construction Company, to William Dennison, a citizen of the State of Ohio, and J. Edgar Thompson, a citizen of the State of Pennsylvania, as trustees, to secure the payment of a proposed issue of bonds, amounting in the aggregate to $6,000,000. Provision was made for the appointment of a new trustee in case of the death of either of those named in the deed. On the 15th of January, 1874, the Construc tion Company commenced a suit in equity in the Circuit Court for the County of Delaware, a The above payments on estimates shall be state court to enforce its mechanic's lien and, made every thirty (30) days, at the office of the in the petition, priority was claimed for this lien President of said Davenport and St. Paul Rail-over that of the mortgage. In this suit the Railroad Company, in Davenport. The Davenport and St. Paul Railroad Company may stop all work at any time, without payment of damages, by giving thirty days' notice. Whenever five consecutive miles of work from the south line of Delaware County are completed by the party of the first part, and accepted by the party of the second part, the party of the second part shall pay the full amount of the contract price for said work on said five miles within thirty days after said work is accepted, without the deduction of said twenty per cent, and for every additional five consecutive miles of the south end of the work completed by said first party, said second party shall pay in like manner within thirty days after the same has been accepted, and so on through the county from south to north. Signed this 6th day of August, A. D. 1870. R. EDDY, Pres. J. M. BRAYTON, Secy. F. B. DOOLITTLE, Treas. Board of Directors of the Delaware Railroad Construction Company. the defendant cannot remove the suit. Knickerbocker L. Ins. Co. v. Gerbach, 70 Pa. St., 150; Germania Fire Ins. Co. v. Francis, 78 U. S., XX., 77; Hurst v. R. R. Co., 93 U. S., 71, XXIII., 805; Am. Bible Society v. Grove, 101 U. S., 610, post. All of the parties on one side must be of different citizenship from the parties on the other side of the action. Martin v. Coons, 24 La. Ann., 169; Burke v. Flood, 6 Sawy., 220; The Removal Cases, supra; Blake v. McKim, 103 U.S., 336, XXVI.; Hyde v. Ruble, 3 Morr. Trans., 516; Beery v. Irick, 22 Gratt., 484; Bryant v. Scott, 67 N. C., 391; Hazard v. Durant, 9 R. I., 602: Fisk v. Chic., R. I. & P. R. R. Co., 53 Barb., 472. The circuit court, under section 2 of Act of Mar. 3, 1875, has no jurisdiction between a citizen of one State and citizens of the same State and another State (Karns v. Atlantic & O. R. R. Co., 10 Fed. Rep., 309); nor of a suit brought by an alien against an alien. Sawyer v. S. M. Ins. Co., 14 Blatchf., 451; road Company, Thompson and Dennison as trustees, the Davenport Railway Construction Company, an Iowa corporation, and Lucius Howard, were named as defendants, but process was served only on the Railroad Company. On the 28th of January, the Railroad Company appeared and filed an answer, substantially admitting the allegations in the petition except as to the amount due. Credits were claimed, however, beyond those acknowledged by the Construction Company, and a reference was asked for a statement of the accounts. To this answer a reply was filed January 30. On the 6th of February the Construction Company and the Railroad Company appeared by their respective counsel, and a motion by the Railroad Company for a reference being overruled, the court proceeded to receive evidence in the cause. In this state of the case, it was agreed between the parties then appearing, to wit: the Construction Company and the Railroad Company, as follows: "The case as to these parties is referred to Henry Harger, Esq., who appears in open court Orosco v. Gagliardo, 22 Cal., 83; Barrowcliffe v. La Caisse Generale, 58 How. Pr., 131. A case cannot be removed when some of the defendants are citizens of the State where the suit is brought. Hanover F. Ins. Co. v. Keogh, 7 Fed. Rep., 764; Merwin v. Wexel, 40 How. Pr., 115; Bryant v. Rich, 106 Mass., 180; Cooke v. State Nat. Bk., 52 N. Y., 96; S. C., 1 Lans., 494; 50 Barb., 339; Grover & Baker Sewing-Machine Co. v. Florence Sewing Machine Co., 85 U. S., XXI., 914; S. C., 110 Mass.. 70; Vannevar v. Bryant, 88 U.S., XXII., 476; Bixby v.Crouse, 8 Blatchf., 73; George v. Pilcher,28 Gratt., 299; W. A. & W. R. R. Co. v. A. W. R. R. Co., 19 Gratt., 592: Ex parte Andrews, 40 Ala., 639; Swann v. Myers, 70 N. Č., 101; Burch v. D. & S. P. R. R. Co., 46 Iowa, 449; Miller v. Finn, 1 Neb., 254; Waggoner v. Cheek, 2 Dill., 560; N. J. Zinc Co. v. Trotter, 23 Int. Rev. Rec., 410; contra, Florence Sew. M. Co. v. Grover & B. Co., 1 Holmes, 235. "Removal Cases." and accepts the appointment of referee, with | be declared paramount to all claims of said depower to examine witnesses, books and papers fendant, and that plaintiff have such other and and accounts, and upon the findings of said further relief as may be equitable." referee being reported to the Judge of this court, a judgment, by agreement of said parties in open court, is to be entered for the amount due, and a decree for a mechanics' lien to be made establishing such lien, the hearing to commence on Monday morning, February 9, 1874, at nine o'clock A. M., at the office of said Harger in Delhi, Iowa, and to continue from day to day until completed. And by said agreement of said parties the judgment is to be entered as of the last day of this January Term, 1874, of this court, and the cause is by order of court continued as to all the defendants except said Davenport and St. Paul Railroad Company." Notice to these defendants of the pendency of the original and supplemental petitions was published in the Delhi Monitor, a newspaper published weekly at Delhi, Delaware County, four successive weeks, commencing April 9 and ending April 30, requiring them to appear and answer before the 19th of May then next, or default would be entered against them, and judg ment and decree rendered as prayed for. On the 22d of May, proof of the publication of this notice having been made, a decree was entered on default, granting the relief asked for, and foreclosing the defendants, Thompson and Dennison, "From all right of redemption of, in or to the said property, and every part thereof," and The referee proceeded to the hearing and pre- declaring that the rights of the Construction sented his report, which was approved by the Company were "superior and paramount to any Circuit Judge on the 13th of February, and the and all claims or rights of said defendants to the Judge at the same time directed the clerk to same or any part thereof." At the same time enter a judgment in accordance with the find the cause was dismissed as to the defendant ing as of February 6, the last day of the pre- Lucius Howard. The Davenport Railway Conceding Term. On the 14th of February the ref-struction Company never appeared in the suit, eree filed his report and the indorsement of the and it nowhere appears what its interest in the Judge thereon with the clerk, and the clerk controversy was. entered a judgment in favor of the Construction Company for $51,930.54, with interest at six per cent. from February 6, and establishing a lien upon the railroad in the county to secure the payment. A special execution for the sale of the property in accordance with this judgment was also ordered. On the 17th of February, such an execution was issued, and on the 4th of May the property was sold by the sheriff to the Construction Company for $53,000, and a conveyance made to its treasurer in trust. Afterwards the property was conveyed by the treasurer to the Delaware County Railroad Company, an Iowa Corporation created and organized for the purpose of taking the conveyance and holding the property. This new Corporation was composed of substantially the same stockholders as the Construction Company. On the 6th of April, 1874, an affidavit was made and filed in the suit by the attorney of the Construction Company, to the effect" That personal service of original notice in said suit cannot be made upon the defendants, J. Edgar Thompson and William Dennison, trustees of certain bondholders of said railroad, within the State of lowa, and they are non-residents of said State of Iowa." The next day a supplemental petition was filed in the cause, as follows: "And now comes the plaintiff in this suit and states that since the commencement of this suit, to wit: on the 6th day of February, A. D. 1874, a decree has been rendered by this court against the Davenport and St. Paul Railroad Company, a copy of said decree being hereto annexed, and made a part of this supplemental petition, by which judgment was rendered against said Railroad Company in favor of said plaintiff for the sum of $51,930.54, besides costs of suit, and the mechanic's lien claimed in the original petition in this suit was established as claimed in said petition. Wherefore plaintiff asks that the remaining defendants be foreclosed of all rights of redemption of the property described in said original petition; that said lien be established against the remaining defendants in said suit; that it Thompson, one of the trustees, died May 23, the next day after this decree was entered, and on the 26th of January, 1875, the following proceedings were had in the cause on the application of Dennison: "Now, on this 26th day of January, 1875, comes William Dennison, the surviving trustee for certain bondholders of the Davenport and St. Paul Railroad Company, who were defendants in the above entitled cause, and files with the clerk of this court a motion for a new trial in this cause, on behalf of the said William Dennison, surviving trustee as aforesaid, and brings into court a bond for security for costs of retrial of said cause, as required by the statute in such cases made and provided, and offers to be filed the answer of the said surviving trustee, William Dennison. Whereupon, it appearing to the court that the service upon the said surviving trustee was by publication only, and that he and those whom he represents are entitled to a new trial under the law; and it further appearing to the court that the said surviving trustee has furnished security for the costs of new trial herein satisfactory to the said plaintiff, it is ordered by the court that a new trial in this cause be granted to the said surviving trustee, William Dennison, that the answer of fered by the said defendant be filed, and that this cause stand continued to the next Term of this court." On the 2d of February, the Construction Company filed a motion in the cause, to strike the answer of Dennison from the files because it was not verified. This motion was granted at the next Term of the court, on the 17th of May, and the Construction Company thereupon asked for a judgment by default, but on the 19th of May an amended answer was filed on leave, in which a defense was set up against the priority of the lien of the Construction Company. On the same day, Lewis H. Meyer, a citizen of the State of New York, claiming to have been appointed a trustee under the mortgage in the place of Thompson, moved the court to be substituted for Thompson as a party to the suit. |