will be sufficient to show that neither of the alleged errors is apparent in the record of those proceedings, nor is there anything apparent in the record which affords any support whatever to either of the alleged objections. Instead of that, the record shows that the petition in bankruptcy was in due form and that all the proceedings antecedent to the decree adjudging the debtors to be bankrupts were regular and in strict conformity to the Bankrupt Act; nor is it pretended that there was any irregularity

of the vendors, and without any knowledge or information that the owners of the goods had any other creditors that could, in any way, be affected by the said purchase; and that the purchase was made by him with the consent and approbation of the petitioning creditor in the bank rupt proceedings. (3) That the proceedings in bankruptcy were void and of no effect, and that they were collusive and a fraud upon the Bank rupt Act; that the petitioner in the case was not, in fact, a creditor of the bankrupts, and that the proceedings were instituted and prose-in the proceedings which led to the appointment cuted at the request and in the interest of the bankrupts, and with their consent, contrivance and approbation, and by collusion with them. (4) That the proceeds of the sale were paid over to the bankrupts, and were received by them, with the consent and approbation of the petitioning creditor, who is their father, and that he was present and consented to all that was done in respect to the sale of the goods and the disors, on the day heretofore named, were adjudged position of the proceeds, and they deny that there are other creditors who would or could institute such proceedings against the bankrupts. Evidence was taken on both sides and the parties were fully heard, and the circuit court entered a decree for the complainant, as follows:(1) That the complainant recover of the respondents, principal and interest, the sum of $4,213.69 and costs of suit. (2) That the respondents be, and they are hereby adjudged to have lost any and all claim to any share or dividend in the property of said bankrupts, or in any property, money or effects obtained or to be obtained by the complainant by this decree, or from any share in the estate of the bankrupts in the hands of the complainant, as such assignee.

Subsequently a final decree was entered and the respondents appealed to this court. Since that time the appellants have appeared and filed the following assignment of errors: (1) That the circuit court erred in adjudging that the complainant recover of the respondents the sum mentioned in the decree, or any sum whatever. (2) That the said court erred in adjudging that the appellants be debarred from any share in the estate of the bankrupts. (3) That the said court erred in not deciding that the proceedings in bankruptcy were wholly void and of no effect, on the ground that the district court had no jurisdiction of the petition, because the petitioner was not a creditor of the bankrupts. (4) That the said court erred in not deciding that the bankrupt proceedings were wholly void and of no effect, on the ground that the proceedings were fraudulently instituted and prosecuted. (5) That the said court erred in deciding that the goods were transferred to the appellants in a manner to constitute a violation of any provision of the Bankrupt Act.

Viewed in the light of the assignment of errors, the objections to the decree of the circuit court embody three affirmative propositions, as follows: (1) That the proceedings in bankruptcy were void and of no effect for the reasons which are set forth in the third and fourth assignments. (2) That the decree is in favor of the wrong party, for the reasons set forth in the first and fifth assignments of errors. (3) That the proofs did not warrant the court in adjudging that the respondents should be debarred from any share in the bankrupt's estate.

of the assignee, or in his administration of the bankrupt's estate, or in the assignment and conveyance of the same to him as required and directed by the 14th section of the Bankrupt Act. Such an objection, if made, could not be sustained, as the petition in bankruptcy is set forth at large in the transcript; and it was admitted by the respondents, in open court, that the debtbankrupts by the said district court, upon the petition of the creditor named in the petition; and the express admission is, that the adjudication was made, in the ordinary manner, upon default, and that an assignment of their effects was made, in due form, to the assignee. Every pretense, therefore, that there is any such error apparent in the record, is foreclosed by the stipulation contained in the transcript.

Attempt is made in argument to maintain the first proposition by reference to the evidence reported in the record, but it is clear that the parts of the evidence referred to, when properly understood, afford no countenance to any such theory. What the respondents assume is, that the evidence warrants the conclusion that the insolvents were not indebted to the petitioning creditor, and that the proceedings in bankruptcy were instituted and prosecuted by the petitioner in collusion and with the consent and approbation of the insolvent debtors; but it is demonstrable that a proper analysis and construction of the parts of the evidence invoked to sustain that issue will show that the whole theory is utterly destitute of any foundation.

Unexplained, it may be admitted that the act of the petitioning creditor in discharging his claim against his sons at the time the respondents purchased their stock of goods would afford some support to the assumed theory; but it is quite obvious that the evidence of that act, when weighed in connection with the attending circumstances, proves the very reverse of the theory it is invoked to support. Sufficient appears in the circumstances under which that discharge was given, to show that it was procured by the false representations and the gross fraud and deception of the respondents, or of the senior partner of their firm, and that he was acting for the benefit of his partner as well as of himself.

By the pleadings and proofs it appears that the respondents are wholesale clothing merchants, doing business in Rochester, in the State of New York, and that the insolvent debtors mentioned in the bill of complaint, prior to the sale of their stock of goods to the respondents, were retail traders engaged in business at Hudson, in the State of Michigan, owning a stock of goods consisting of such articles of merchandise as those before mentioned, of the value of $4,000. 1. Even a slight examination of the transcript | They owed the respondents $4,500 and were

largely in debt to other creditors, amounting in | the whole, as estimated by the senior partner of the respondent firm, to the sum of $8,000. Prior to the sale of their stock of goods to the respondents, or about the time they commenced business, they borrowed $2,500 of their father, no part of which was ever paid, 'except the sum of $300 of the principal.

tion, as follows: "Pay no attention to them; they can't collect anything."

Difficulties in that quarter having been overcome, it only remained to dispose of the debt which the young men owed to their father. Expedients to accomplish that end were soon devised by the unscrupulous creditor. He advised the young men to communicate with their father, and that he and they, or one of them, should immediately go to the place of the father's residence in order to induce him to relinquish his claim, so that the proposed arrangeures were immediately adopted to notify the father and the brother-in-law of the respondent, who resided in the same place, of their intended visit, for which purpose the respondent sent a telegram to his brother-in-law, of the following terms: "Expect me next train. Tell the lawyer to be in his office." Information of the intended visit was also communicated to the father by the elder son, who was authorized to act for his partner as well as for himself.

On their arrival at the depot of the place of destination, they were met by the brother-in-law of the respondent, who had previously been designated as "the third person" to whom the stock of goods was to be conveyed. Notice of their arrival was given to the father by his son, and they went immediately to the office of the attorney-at-law, referred to in the telegram sent by the respondent, and there they met the respondent and his brother-in-law.

Enough appears to show that the respondent firm became fearful that their debtors would not be able either to pay their debts or to continue their business, and that it was very desirable to enforce payment or to procure security.ment could be safely carried into effect. MeasDoubtless it was such motives that induced the senior partner to make a trip to the place where the insolvent debtors were doing business. Before going there, however, he made a short visit to his brother-in-law, who resides forty miles beyond the place where his insolvent debtors lived. As shown in the proofs, on his return he called at the store of his debtors, the elder of the two being present, the other being sick at his dwelling-house. Conversation ensued in respect to the pecuniary condition of the debtor firm, and the creditor informed the partner present that he came to look over their matters, and he was permitted to examine the goods on hand and to look over their books. Estimates were made by each of them as to the value of the stock and, as they differed in opinion as to its value, they concluded to make an inventory of the same, which was done, and they also computed the debts of the debtor firm and found that their indebtedness amounted to $8,000, including the amount due to their father. Hav ing completed the examination of the goods and of the books, the respondent remarked that they had got only $4,000 or $5,000 to pay their whole indebtedness, amounting to $8,000, and added to the effect that if they did not pay he should remain, and on Monday would throw them into bankruptcy. He did remain, and on the following day (Sunday) dined with his debtors at their dwelling-house, the junior member of the firm being still confined to the house. Monday came, but he did not attempt to institute proceedings in bankruptcy, but proposed that they should sell their whole stock of goods to some third person, to be named by him, for the benefit of his firm; and to induce the debtors to accept the proposal, he accompanied it with the assurance that they, the debtors, should remain in possession of the goods, as the agents of the purchasers, to sell the goods on commission, as alleged in the bill of complaint, and that his firm or their agent, the nominal purchaser, would, from time to time, furnish them with additional goods to replenish their stock, to be held and sold by the insolvent debtors on the same terms.

Embarrassed as the owners of the goods were, they were pretty easily persuaded by the threats of the respondent and by the false and fraudu lent promises and assurances, made in behalf of the respondents, to accept the deceptive, alluring and fraudulent proposals. Objections, indeed, were at first made by the owners of the goods, and one of them inquired of his wily creditor what they should do when their other creditors presented their bills for payment; but the artful negotiator soon silenced every misgiving of that sort by the fraudulent sugges

Nothing remained to be done to render the scheme successful, except to dispose of the debt of the father. Plausible arguments to promote that purpose were presented by the respondent.

He commenced the conversation by artful explanations to show that the arrangement suggested was essential to save the insolvent debtors from ruin; saying that the boys were in a bad condition; that he was anxious to help them; that he did not want to see them thrown out of business.

Inquiry was then made of him by the father of the debtors, what he proposed to do; to which he promptly replied to the effect following: that he proposed to buy the stock of goods and run the store himself, through a third party, retaining the young men to conduct the business the same as they had done; that he and his partner would re-stock the store with such goods as they should need, and keep it stocked for the time proposed to the debtors, and repeated all the promises and assurances previously made and given to the insolvent debtors, among which were the promise and assurance that the debtors should remain in possession of the goods and be constituted the agents of the purchasers to sell the same, and that they should receive to their own use the net profits of the sales, and should also have their living out of the business.

Beyond all doubt these insidious remarks were intended as an introduction to the proposition to be made to the father of the debtors, which was, that in order to effect the arrangement it would be necessary that he should withdraw his claim, so that the purchasers would not be exposed to any trouble in carrying out the proposal, until they should get their pay, when the goods should revert to the debtors.

Alluring and plausible as these suggestions were | admit that it was the same appliances, strengthto the father of the insolvent young men, still he inquired in reply whether he ought not to have some writing to insure the performance of the stipulations on the part of the purchasers of the goods, but the respondent immediately re marked that nothing of the kind was necessary; that he had always done by the boys as he agreed and always intended to do so.

ened by the desire of the father that his sons might be able to continue in business, that induced him to execute the discharge. Twentytwo hundred dollars of the principal loaned by him to his sons were still due to him, and he was not paid one dollar for the discharge on the occa sion. Nor is there any better foundation for the charge that the proceedings in bankruptcy were instituted and prosecuted in collusion with the bankrupts and with their consent and approbation, as the charge is not supported by any satisfactory evidence.

II. Suppose that is so; still it is insisted that the complainant is not entitled to maintain the suit, because the decree adjudging the debtors to be bankrupts was procured by fraud. Support to that proposition is not found in any defect in the decree of the district court where it was entered, nor in any of the proceedings which led to it; nor is any reference made in the assignment of errors to the evidence invoked to establish the proposition, unless it be to the charge that the insolvent debtors were not indebted to the petitioning creditor, which has already been shown to be without any just foundation.

Suffice it to say that the colloquy was continued for some time, during which one or two writings were drawn, which were destroyed because they were not satisfactory, and the negotia tion terminated in the adoption of the original proposal made by the respondent, without any writing being given to secure the promises and assurances given, either to the father or the owners of the stock of goods. They, the owners of the goods, executed a bill of sale of the same to the brother-in-law of the respondent, the price being fixed at $3,482.34, and he paid the consideration by a draft for $500, a check for $170.59, cash $200, and three notes signed by the nominal purchaser, each for the sum of $870.60. Care was taken at the time that the whole consideration, including the draft, check, money and notes, should be delivered to the representative of the insolvent debtors, but the Defects of the kind should be specifically evidence shows that he, the debtor, immediate-pointed out, and if they consist of matters of ly passed over the whole amount to the respond fact, the evidence to support the assignment ent, who gave a discharge of the debt of his should be the subject of distinct reference; but firm. By this contrivance the respondent, the court is not inclined to rest the decision upon through his brother-in-law, became the pur- any imperfections in the assignment of errors. chaser of all the stock in trade belonging to the Influenced by that determination, the whole insolvent debtors, which he accepted as a full evidence reported has been examined, and our payment of the debt due to his firm. Agree- conclusion is that the proposition is not proved. ably to the arrangement, the father of the debt-Nor is the court inclined to stop there, as we ors also withdrew his claim and executed a are all of the opinion that the decree of the disdischarge to his sons for the same without be-trict court in such a case is conclusive of the ing paid even to the amount of a dollar.

Steeped in fraud as the transaction was, the court here does not hesitate to decide that the discharge procured from the father of his debt against his sons is null and void, and that when he found that all the promises and assurances made and given by the respondent were broken, and that they were evidently never intended to be performed, he had a right to regard his debt as in full force. Proof of a more satisfactory character to establish that proposition can hardly be imagined, than that which is exhibited in the record.

fact decreed, unless when it is called in ques tion in the court where it was entered or by some direct proceeding in some other court of competent jurisdiction.

Jurisdiction is certainly conferred upon the district court in such a case, if the petition presented sets forth the required facts, and the court upon proof of service thereof finds the facts set forth in the petition to be true; and it is equally certain that the district court has jurisdiction of all acts, matters and things to be done under and in virtue of the bankruptcy until the final distribution and settlement of the estate of the bankrupt and the close of the proceedings.

Before the week elapsed the nominal purchaser of the goods visited the bankrupts at their place of business, and pretending that he had Power, it is true, is vested in the circuit courts been deceived by them in respect to a lien on in certain cases to revise the doings of the disthe goods, procured from them an assignment trict courts, and in certain other cases an apof their books, and failing to induce them to peal is allowed from the district court to the turn over to him the only cow they owned, he circuit court, but it is a sufficient answer to demanded the goods, and the debtors having every suggestion of that sort, that no attempt refused to deliver the same, he sued out a writ was made in this case to seek a revision of the of replevin and took the same into his posses- decree in any other tribunal. Nothing of the sion, leaving them stripped of everything ex-kind is suggested, nor can it be, as the record cept the cow, which they refused to convey. shows a regular decree, unrevised and in full Examined in connection with the attending circumstances it is manifest that the discharge of the debt procured from the father is null and void, because it was obtained by gross deception, misrepresentation, and shameless fraud. Mingled threats and promises induced the in solvent debtors to accept the proposal of the respondent, and every candid and impartial in vestigator of the facts given in evidence must

force.

Grant that; and still the proposition is submitted that it may be assigned for error that it was procured by fraud, and that such an assignment is valid, even though the decree was introduced as collateral evidence in a suit at law or in equity. But the court here is entirely of a different opinion, as the district courts are created by an Act of Congress which confers

and defines their jurisdiction, from which it follows that decrees rendered in pursuance of the power conferred are entitled in this court to the same force and effect as the judgments or decrees of any domestic tribunal, so long as they remain unreversed or annulled.

prior to filing the petition in bankruptcy, and with a view of giving the plaintiff a preference over the other creditors. (2) That the debtor was insolvent at the time. (3) That the plaintiff had at the time reasonable cause to believe that the defendant was insolvent, and that he procured the judgment to give the plaintiff such a preference.

Buchanan v. Smith, 16 Wall., 277 [83 U. S., XXI., 280]; Wager v. Hall, 16 Wall., 590 [83 U. S., XXI., 504].

Parker v. Danforth, 16 Mass., 299; Pecks v. Barnum, 24 Vt., 76; 2 Sm. L. Cas., 7th ed.,814. Foreign judgments, by the rules of the com mon law, were only prima facie evidence of the debt adjudged to be due to the plaintiff, and every such judgment was open to examination, not only to show that the court in which it was rendered had no jurisdiction of the subject matter, but also to show that the judgment was fraudulently obtained. Domestic judgments, under the rules of the common law, could not be collaterally impeached or called in question if rendered in a court of competent jurisdicors, than it is to such impeachment in the courts tion.

Lord v. Chadbourne, 42 Me., 429.

It could only be done directly by writ of error, petition for new trial, or by bill in chan

cery.

Cammell v. Sewell, 3 Hurls. & N., 617. Third persons only, says Saunders, could set up the defense of fraud or collusion, and not the parties to the record, whose only relief was in equity, except in the case of a judgment obtained on a cognovit or a warrant of attorney.

Competent evidence is admissible to prove those facts, but a judgment is no more liable to collateral impeachment in proceedings under the Bankrupt Act, except for the purpose of showing that the judgment in question was designed as a means of avoiding the equal distribution of the debtor's estate among his credit

where it was rendered. Palmer v. Preston, 45 Vt., 159.

Power to establish uniform laws upon the subject of bankruptcy throughout the United States is conferred upon Congress, and Congress having exercised the power it has become an exclusive power. By the Act of Congress the jurisdiction to adjudge such insolvent debtors as are described in the 39 section of the Act to be bankrupts is vested in the district courts, and it follows that such a judgment is entitled to the 2 Saund. Pl. & Ev., pt. 1, p. 63; Christmas same verity, and is no more liable to be imv. Russell, 5 Wall., 304 [72 U. S., XVIII., 479]. peached collaterally than any other judgments Judgments of any court, it is sometimes said, or decrees rendered by courts possessing general may be impeached by strangers to them for jurisdiction, which of itself shows that the case fraud or collusion, but the proposition as stated before the court is controlled by the general is subject to certain limitations, as it is only rule that where it appears that the court had those strangers who, if the judgment is given jurisdiction of the subject-matter, and that the full credit and effect, would be prejudiced in defendant was duly served with process or volregard to some pre-existing right who are per-untarily appeared and made defense, the judg mitted to set up such a defense. Defenses of the kind may be set up by such strangers. Hence the rule that whenever a judgment or decree is procured through the fraud of either of the parties, or by the collusion of both, for the purpose of defrauding some third person, such third person may escape from the injury thus attempted by showing, even in a collateral proceeding, the fraud or collusion by which the judgment was obtained.

Crosby v. Leng. 12 East, 409; Ins. Co. v. Wilson, 34 N. Y., 281; Hall v. Hamlin, 2 Watts, 354; Pond v. Makepeace, 2 Metc., 116; Sidensparker v. Sidensparker, 52 Me., 488.

Third persons only, however, can set up such a defense, as the rule is well settled that neither the parties nor those entitled to manage the cause or to appeal from the judgment are permitted to make such defense in any collateral issue.

Homer v. Fish, 1 Pick., 435; R. R. Co. v. Sparhawk, 1 Allen, 448; Atkinsons v. Allen, 12 Vt., 624; Granger v. Clark, 22 Me., 330; Hammond v. Wilder, 25 Vt., 346; Coit v. Haven, 30 Conn., 198; Hollister v. Abbott, 11 Foster, 448; 2 Phil. Ev., 80, n. 291, 5th Am. ed.; Christmas v. Russell,, 5 Wall, 306 [72 U. S., XVIII., 480]; Peck v. Woodbridge, 3 Day, 30.

Unquestionably, a judgment may be impeached for the purpose of showing that it was procured by the debtor for the purpose of avoiding the operation of the Bankrupt Act. Evidence for that purpose is admissible to show: (1) That it was procured within four months

ment is conclusive and is not open to any inquiry upon the merits. 2 Sm. L. Cas.. 7th ed., p. 622; Freem. Judg., 2d ed., sec. 606; Hamp ton v. McConnel, 3 Wheat.. 234; Nations v. Johnson, 24 How., 203 [65 U. S., XVI., 631]; D'Arcy v. Ketchum, 11 How., 166; Webster v. Reed, 11 How., 460.

Exactly the same rule is applicable to the case before the court, as it is clear that the district court had jurisdiction of the petition and that there is not even a suggestion that the notice required by law was not given as the law directs. In re Robinson, 6 Blatchf., 255; Wimberly v. Hurst, 33 Ill., 172; Corey v. Ripley, 57 Me., 69; Bk. v. Olcott, 46 N. Y., 15; Fortman v. Rottier, 8 Ohio St., 556; Revell v. Blake, L. R., 7 C. P.. 308.

Such a decree adjudging a debtor to be bankrupt is in the nature of a decree in rem as respects the status of the party, and in case the court rendering it has jurisdiction it is only as sailable by a direct proceeding in a competent court, if due notice was given and the adjudication is correct in form. Way v. Howe, 108 Mass., 503; Ex parte Wieland, L. R., 5 Ch. App., 489; Woodruff v. Taylor, 20 Vt., 65; Mankin v. Chandler, 2 Brock., 126; Shawhan v. Wherritt, 7 How., 643; Imrie v. Castrique, 8 C. B. (N. S.), 407; Carter v. Dimmock, 4 Ĥ. L. Cas., 346.

III. Preferences, as well as fraudulent conveyances, if made within four months before the filing of the petition by or against the bankrupt, are forbidden by the Bankrupt Act; but three

things must concur in order thai the transaction

may come within the prohibition and be affect.

ed by it as an illegal payment, security or transfer: (1) That the payment, pledge, assignment, transfer or conveyance was made by the bank rupt, within the period mentioned, and with a view to give a preference to one or more of his creditors, or to a person having a claim against him, or who was under some liability on his ac count. (2) That the person making the payment, pledge, assignment, transfer or convey ance was insolvent or in contemplation of insolvency at the time the preference was secured. (3) That the person receiving such payment, pledge, assignment, transfer or conveyance, or to be benefited thereby, had reasonable cause to believe that the person was insolvent and that the payment, pledge, assignment, transfer or conveyance was made in fraud of the provisions of the Bankrupt Act. Wager v. Hall [supra]; Scammon v. Cole, 5 Nat. Bk. Reg., 259.

Creditors are forbidden to receive such a preference from such a debtor, and the provision is that if such a debtor shall be adjudged a bank. rupt the assignee may recover back the money or other property so paid, conveyed, sold, assigned, or transferred contrary to that Act, provided the person receiving such payment or conveyance had reasonable cause to believe that a fraud on the Bankrupt Act was intended, or that the debtor was insolvent; and the farther provision is, that such creditor shall not be allowed to prove his debt in bankruptcy. 14 Stat. at L., 536.

Evidently that part of the decree which is the subject of the third complaint is founded upon that provision, and inasmuch as the facts exhib ited in the record bring the case in all respects within the regulation there prescribed, it is clear that it was competent for the circuit court to render such a decree, and the court here sees no reason to question the action of the circuit

court.

Decree affirmed.

S. C.-12 Bk. Reg., 152.

APPEAL from the Circuit Court of the Unit

ed States for the Middle District of Ten

nessee.

This action was brought in the Chancery Court for Giles County, Tennessee, by the appellee, a resident of Tennessee, against the appellant, a resident of New York, and one J. C. Walker, a citizen of Tennessee. The State Court granted the petition of the appellant for the removal of the cause to the Circuit Court of the United States, holding that Walker was not a necessary party. On petition of the complainant, however, the circuit court dismissed the case for want of jurisdiction, and remanded it to the State Court. From this decree the present appeal is taken.

The case further appears in the opinion.
Mr. Ed. Baxter, for appellant.

Messrs. Wm. F. & Henry Cooper, for appellee.

Mr. Chief Justice Waite delivered the opinion of the court:

The order of the circuit court, dismissing this cause and remanding it to the State Court, is affirmed.

The suit was brought originally in the State Court for the foreclosure of a mortgage or deed of trust, executed by Gardner, the appellant, to John C. Walker, as trustee, to secure the payment of a debt due to the complainant's intes

tate.

Walker, as trustee, was authorized, upon default of payment of the debt, to take possession of the mortgaged premises and sell them upon certain specified terms and conditions. It is claimed in the bill, that he had not qualified himself under the laws of Tennessee to act under this power, and the suit was brought to foreclose the mortgage in chancery without reference to the special power of sale. Walker, the trustee, was made co-defendant with Gardner, the mortgagor, the object being to reach the property in his hands as trustee, and subject it, through the ordinary powers of a court

Cited 22 Wall., 157; 5 Dill., 148; 1 Hughes, 201: of chancery, to the payment of the debt it was 15 Bk. Reg., 188.

given to secure.

The mortgagor moved to transfer the cause, as to himself, to the circuit court, under the provisions of the Act of July 27, 1866, 14 Stat. at L., 306. This motion could not be granted unless there could be a final determination of the cause, so far as it concerned him, without JOHN C. BROWN, Admr. of RICHARD W. the presence of the other defendant as a party.

RICHARD C. GARDNER, Appt.,

VASSER, Deceased.

(See S. C., 21 Wall., 36-41.)

The State Court granted the motion and made the order of removal, but the circuit court, being of the opinion that Walker was a neces

Removal of cause from State Court, by one de- sary party to the relief asked against Gardner,

fendant as a party.

fendant.

1. A motion of one defendant to transfer the cause, as to himself, from the State Court to the U. S. Circuit Court, under the provisions of the Act of July 27, 1866, cannot be granted unless there can be a final determination of the cause, so far as it concerns him, without the presence of the other de2. Where the bill was one for the foreclosure of a mortgage, this required the presence of the party holding the legal title to the land, and where the cause was not removable as to him, it could not be removed as to the other party who made the mo[No. 761.]

tion.

Submitted Dec. 21, 1874. Decided Jan. 11, 1875.

refused to entertain jurisdiction and remanded the cause. In this we think the circuit court was right. The bill prayed a foreclosure of the mortgage by a sale of the land. This required the presence of the party holding the legal title. The complainant had only the equitable title. Walker held the legal title. The final determination of the controversy, therefore, required his presence, and as the cause was not removable as to him, under the authority of Coal Co. v. Blatchford, 11 Wall., 172 [78 U. S., XX., 179], it could not be removed as to Gardner alone.

Cited-5 Flipp, 353, 382; 5 Sawy., 167.