for fraud.28 An assignee for the benefit of creditors, a citizen of the State of Rhode Island, filed a bill in equity in the State court, against a Massachusetts creditor of his assignor, who had obtained a State execution, and the officer charged with the service thereof, who was a citizen of Rhode Island, to establish a trust, and to enjoin the sale of the trust property levied upon by the execution. Upon a petition by the execution creditor to remove the bill into the Circuit Court of the United States for the Rhode Island district; it was held, that the officer was not a formal, or unnecessary party to the bill, that his presence could not be disregarded by the court in considering whether the applicant was entitled to the jurisdiction which he invoked; and that the petition must be dismissed.29 Citizens of Tennessee, holding policies of life insurance in a foreign corporation, filed their bill in the Chancery Court against this and other foreign corporations for collection of their claims and to subject to the satisfaction thereof the property of such company, including certain State bonds deposited by it with the treasurer of the State "as security for risks taken by citizens of this State," and, for this purpose, made the treasurer, a citizen of Tennessee, a party defendant. It was held, that the treasurer was a material party defendant, and the court refused, on the application of the foreign corporations, to accept their petition and bond and to authorize a removal.30

Where the holder of the equitable title is a party to the suit, a dry trustee, or passive trustee, or one who merely holds the legal title without any power over the property in question is generally considered to be a formal party.31 Where the trust is active and the trustee has a power over the property, he is usually considered to be a necessary party to the suit, whose citizenship must be considered in determining the jurisdiction.32

28 Carver v. Jarvis-Conklin Mortgage Trust Co., 73 Fed. 9.

29 Nye v. Nightingale, 6 R. I. 439. 30 Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 656.

31 Boon v. Chiles, 8 Pet. 532, 8 L. ed. 1034; Banian v. City of Worcester, 30 Fed. 392. See Lawrence v. Southern Pac. Co., 165 Fed, 241; Atchison, T. & S. F. Ry. Co. v.

Phillips, C. C. A., 176 Fed. 663. But see Dunn v. Waggoner, 11 Tenn. (3 Yerg.), 59.

32 So held, of a trustee of land conveyed to him, to secure the payment of a loan in a suit to cancel the conveyances or to enjoin a sale thereunder. Thayer v. Life Association of America, 112 U. S. 717, 28 L. ed. 864; Peper v. Fordyse, 119

Where two citizens of one State, trustees for bondholders under a mortgage of a railroad owned by a corporation of another State, foreclosed the mortgage, bought in the road in trust for the bondholders, and leased it to a citizen of the State to which they themselves belonged; and then a majority of the bondholders, citizens of the State where the original company was, in pursuance of a statute there, formed themselves into a new corporation, to which the statute gave ownership and control of the road, and suit was brought in a State court against the lessee of the road by the trustees who had made the lease; it was held: that defendant could not remove the suit from the State court to the Federal court on the ground, that it was wholly between the new corporation and the lessee, and that the trustees were nominal parties; they, the trustees, not having been discharged from, nor in any way incapacitated from executing, their trust, and there having been, in fact, unpaid bondholders who had not joined in the creation of the new corporation, and who had yet a right to call on the trustees to provide for the payment of their bonds.33 It has been held: that trustees are formal parties to a controversy concerning a claim for the cancellation of bonds secured by the deed of trust, although an injunction against a foreclosure is prayed.34 In a suit to set aside a deed of trust made for the benefit of creditors, it appeared that plaintiff and the trustee were citizens of the same State, but that the beneficiaries under the deed, other than plaintiff, were citizens of another State: It was held, that the trustee was an indispensable party to the suit, and that the Federal court, therefore, had no jurisdiction.35 It was held that the jurisdiction of the Circuit Court of the United States was not defeated by the fact that with the principal defendant were joined, as nominal parties, the ex

U. S. 469, 30 L. ed. 435; reversing decree Fordyce v. Peper, 16 Fed. 516, 5 McCrary, 221; Teal v. Walker, Fed. Cas. No. 13,812. Contra, Chester v. Wellford, Fed. Cas. No. 2,662 (2 Flip. 347). So held of trustees of a mortgage in a foreclosure suit brought by the beneficiary, after they had refused to

Fed. Prac. Vol. I-10

sue. Allen-West Commission Co. v. Brashear, 176 Fed. 119.

33 Knapp v. Railroad Co., 87 U. S. (20 Wall.), 117, 22 L. ed. 328. 34 Lake St. El. R. Co. v. Ziegler, 99 Fed. 114, 39 C. C. A. 431.

35 Rust v. Brittle Silver Co., 58 Fed. 611, 7 C. C. A. 389, 19 U. S. App. 237.

ecutors of a deceased trustee, citizens of the same State as the complainant, in order that such executors might perform the ministerial act of conveying title, in case the power to do so was vested in them by the laws of the State.36 It has been held: that in a controversy as to the priority of different liens upon mortgaged land, the mortgagor is a formal party, when the validity of neither of the liens is disputed; 37 and that so is the lessor of a railroad when the lease is for more than ninety years and the lessee has assumed all the lessor's obligations; 38 and that so is the owner of the fee as well as the lessee railway company, in a proceeding to condemn a right of way in the possession of the lessee holding a term of ninety years.39

Defendants sued by fictitious names are always treated as formal parties, whose presence on the record does not affect the right of removal.40

A garnishee is not considered to be a party to the suit, when determining the right of removal.41 Where the essential parties on the adverse sides of a controversy were citizens of different States; it was held, that the fact that the executors of the deceased father of the principal defendant, who had been made defendants in order to reach his interest in his father's estate, were citizens of the same State as plaintiffs, would not affect the right of removal.42

It has been held, that the following persons are not mere formal parties, and that their citizenship must be considered when the jurisdiction is determined: a party against whom a decree

36 Walden v. Skinner, 101 U. S. 577, 25 L. ed. 963.

37 Removal Cases, 100 U. S. 457, 469, 25 L. ed. 593. But see Thompson v. Dixon, 28 Fed. 5; Tug River Coal & Salt Co. v. Brigel, C. C. A., 67 Fed. 625.

38 Seaboard Air Line Ry. V. North Carolina R. Co., 123 Fed. 629; Olanta Coal Min. Co. V. Beech Creek R. Co., 144 Fed. 150; Chase v. Beech Creek R. Co., 144 Fed. 571. Contra, Bellaire v. Baltimore & Ohio R. R. Co., 146 U. S. 117, 36

L. ed. 910; Washington v. Columbus & C. M. R. Co., 53 Fed. 673.

39 Seaboard Air Line Ry. Co. v. North Carolina R. Co., 123 Fed. 629.

40 Parkinson v. Barr, 105 Fed. 81; Loop v. Winters' Estate, 115 Fed. 362. Contra, Grosso v. Butte Electricity Ry. Co., 217 Fed. 422.

41 Cook v. Whitney, Fed. Cas. No. 3,166 (3 Woods, 715); Corbitt v. President, etc., of Farmers' Bank of Delaware, 113 Fed. 417.

42 Bacon v. Rives, 106 U. S. 99, 27 L. ed. 69.

48

43

is essential to the relief sought by the suit; 3 a stakeholder in the possession of property, to recover which the suit is brought; 44 an administrator with the will annexed in a suit for a construction of the will; 45 the personal representative of a deceased in an action to recover damages for his death, although the proceeds are for the exclusive benefit of the members of the dead man's family; 46 a tenant in common with a leasehold interest and an equity for improvements, when joined with the landlord in a suit for ejectment; 47 a corporation in a stockholder's suit, to cancel a contract which it has made; a corporation in a suit by its mortgagee, to cancel a contract made by it with another, although it was alleged that its assets were insufficient to pay the mortgage; 49 a corporation in a suit to compel the transfer of stock, the certificates for which were held or claimed by another defendant.50 Where the stakeholder brought a suit of interpleader; it was held, that a difference of citizenship between the defendants justified a removal.51 Under the Illinois statute, which gives the right of appeal to any one aggrieved by the order of a probate court allowing a claim, as construed by the Supreme Court of the State, any person appeal

43 Wormley v. Wormley, 21 U. S. (8 Wheat.), 421, 5 L. ed. 651; Carneal v. Banks, 23 U. S. (10 Wheat.), 181, 6 L. ed. 297; Ward v. Arredondo, Fed. Cas. No. 17,148 (1) Paine, 410); Post v. Buckley, 119 Fed. 249.

44 Wilson v. Oswego Tp., 151 U. S. 56, 38 L. ed. 70; Massachusetts & S. Constr. Co. v. Cane Creek Tp., 155 U. S. 283, 39 L. ed. 152; Scoutt v. Keck, 73 Fed. 900, 20 C. C. A. 103. But see Pacific R. Co. v. Ketchum, 101 U. S. 289, 298, 25 L. ed. 932; Bacon v. Rives, 106 U. S. 99, 27 L. ed. 69; Reeves v. Corning, 51 Fed. 774, 778; N. Y. Constr. Co. v. Simon, 53 Fed. 1; and cases cited. 45 Security Co. v. Pratt, 64 Fed. 405.

46 Laubscher v. Fay, 197 Fed. 879. 47 Beardsley v. Torrey, Fed. Cas. No. 1,190 (4 Wash. C. C. 286);

Cleveland v. Cleveland, C. C. & St. L. Ry Co., C. C. A., 146 Fed. 171. Contra, Gwynne v. Roe, 4 Ohio (4) Ham.), 435; Texas v. Lewis, 12 Fed. 1; brought in Texas for trespass to try title to land, and the tenant disclaimed title.

48 East Tennessee, V. & G. R. Co. v. Grayson, 119 U. S. 240, 30 L. ed.

382.

49 Consol. Water Co. v. Babcock, 76 Fed. 243. See Dawson v. Columbia Trust Co., 197 U. S. 178, 49 L. ed. 713; cited supra.

50 Crump v. Thurber, 115 U. S. 56, 29 L. ed. 328; Rogers v. Van Nortwick, 45 Fed. 513; Patterson v. Farmington Street Ry. Co., 111 Fed.

262.

51 First Nat. Bank v. Bridgeport Tr. Co., 117 Fed. 969; Feidler v. Bartleson, C. C. A., 161 Fed. 30, cited supra, § 41.

ing, other than the administrator, might prosecute the appeal in his own name. It was held, that where the claimant was the administrator, and a temporary administrator was appointed by the probate court to represent the estate, but the claim was actually contested by an heir of the decedent, who appealed from an order allowing the claim, the question of diversity of citizenship between the parties was to be determined upon the citizenship of such appellant, and not upon that of the temporary administrator.52 In an ejectment instituted in a State court of Pennsylvania by a citizen of Pennsylvania, against the tenant in possession, also a citizen of that State, his lessor, a citizen of Maryland, after a judgment by default against the tenant, was, upon his petition admitted as a defendant to the suit. The new defendant then removed the cause; but the Circuit Court remanded the same for want of jurisdiction; since the remover was a co-defendant with the tenant in possession, a citizen of plaintiff's State.53 Where a stockholder in a corporation sued to enjoin the use by another corporation of stock in the former, upon the ground that the latter had no corporate power to acquire the same; it was held, that the former company was not a necessary party, and that its joinder could not prevent a removal.54 It was held: that a corporation, which had sold all its property and franchises except the mere right to exist, and which had no officers or place of business, was only a nominal party in a suit against a stockholder to make him liable for his unpaid subscription; notwithstanding the fact that the corporation had still the power to reorganize and collect the stockholders' dues.55 But upon a bill for the specific performance of a contract between two individuals for the sale of certain shares of stock issued by a corporation, and to recover damages for the breach of such contract, which bill did not allege the insolvency of the other party to the contract, nor that he was about to dispose of the stock; it was held that no cause of action was stated against the corporation, and that, if joined, it was merely a formal party, which could not affect the jurisdiction.5€

52 Schneider v. Eldredge, 125 Fed. 638.

53 Beardsley v. Torrey, Fed. Cas. No. 1,190 (4 Wash. C. C. 286).

54 Higgins v. Baltimore & O. R. Co., 99 Fed. 640.

55 Wellman v. Howland Coal & Iron Works, 19 Fed. 51.

56 Lukas v. Milliken, 139 Fed. 816.