were entitled to make use of the name of the original assured in the suit at law, and the nominal plaintiffs would not be permitted to defeat or prejudice the right of action; that it might be said here, as was said by the Chancellor in the analagous case of Dhegetoft v. London Assurance Co., above referred to, that at this rate, all policies of insurance would be tried in this court; and that the bill stated no special ground for equitable relief.

It was held by the Court of Appeals of Maryland and Virginia and by the Supreme Court of Tennessee, in an opinion delivered by Judge Catron (afterwards a justice of the Supreme Court of the United States), that the mere fact of the assignment of a legal chose in action gave the assignee no right to invoke the jurisdiction of a court of equity. Adair v. Winchester, 7 Gill. & Johns. 114; Mosely (v. Boush, 4 Rand. 392; Smiley v. Bell, Mart. & Yerg. 378. The opposing decision in Townsend v. Carpenter, 11 Ohio 21, is unsupported by any reference to authorities.

The cases before Chancellor Walworth of Fields v. Maghee, 5 Paige, 539, and Rogers v. Traders Ins. Co., 6 Paige, 583, contain no decision upon this point; and in the later case of Ontario Bank v. Mumford, 2 Barb., Ch. 596, 615,he said, "as a general rule,this court will not entertain a suit brought by the assignee of a debtor of a chose in action which is a mere legal demand, but will leave him to his remedy at law by a suit in the name of the assignor;" and referred to the cases before Chancellor Kent and Vice-Chancellor Shadwell, and in the courts of Maryland, Virginia and Tennessee, already cited.

By the law of this Commonwealth the assignee of a chose in action has adequate and complete remedy at law in the right to maintain an action thereon in the name of his assignor, or of his executor or administrator, without his assent, and even against his protest, at least upon giving him, if seasonably demanded, a bond of indemnity against costs. Rockwood v. Brown, 1 Gray, 261; Bates v. Kempton, 7 Gray, 302; Foss v. Lowell Savings Bank, 111 Mass. 285.

The statement in Story Eq. Jur., § 1436 a, that "if a legal debt is due to the plaintiff by the defendant, and the defendant is the assignee of a legal debt due to a third person from the plaintiff, which has been duly assigned to himself, a court of equity will set-off the one against the other, if both debts could properly be the subject of a set-off at law," is pervaded by the same error that we have considered.

The decision of the vice-chancellor in Williams v. Davies, 2 Sim. 461, by which a creditor appears to have been restrained in equity from taking judgment and execution at law on a debt of one to whom he owed a larger sum, is obscurely reported, and has been disapproved by Lord Chancellor Cottenham. Clark v. Cort, Cr. & Phil., 154, 159; Rawson v. Samuel, Cr. & Phil. 161, 178. In Clark v. Cort, the bill upon which the set-off was ordered was by the assignee of a claim which required the investigation of accounts, and the application of a security of which the court would have had juris

an exhibit. Grim

diction if the suit had been by the assig the chancellor said: "The case, then, is of a mere assignee of a legal debt, coming dinequity to have the benefit of a set-off which hag could not have at law." Cr. & Phil. 159. In Rawson v. Samuel he observed: "We speak familiarly of equitable set-off as distinguished from the set-off at law; but it will be found that this equitable set-off exists in cases where the party seeking the benefit of it can show some equitable ground for being protected against his adversary's demand. The mere existence of cross demands is not sufficient." Cr. & Phil. 178. And see Watson v. Mid. Wall. Railway, L. R. 2 C. P. 503; Spalding v. Backus, 122 Mass. 556.

In any action at law brought by Brooks in the name of Bigelow, to recover the sums due him from these two plaintiffs under the license, they could set-off the demand under the other contract assigned to them of Joseph H. Walker against Bigelow, if Bigelow had notice of such assignment before bringing his action. Gen. Stats. c. 120, §. 5. Cook v. Mills, 5 Allen, 36, 38. Their neglect to give him such notice can not entitle them to demand the interposition of a court of equity. Wolcott v. Jones, 4 Allen, 367.

The bill shows no case for an account that can not be taken at law. Badger v. McNamara, 123 Mass. 117. It can not be maintained to restrain a forfeiture, because it does not show that any forfeiture is threatened, or that there is any danger of irreparable injury, therein differing from Florence Sewing Machine Co. v. Grover & Baker Sewing Machine Co., 110 Mass. 1. It can not be maintained, under Gen. Stats. c. 113, § 2, to reach and apply, in payment of a debt, property or rights of a debtor which can not be come at to be attached, or taken in execution in a suit at law against him, because it is not framed in that aspect, and because the statute relates to rights of property and to claims of the debtor against third persons, and does not extend to claims of the debtor against the plaintiff himself. Compton v. Anthony, 13 Allen, 33, 37. It can not be maintained for discovery, because it can not be maintained for relief, and does not show that any discovery is required in aid of proceedings at law. Pool v. Lloyd, 5 Met. 525; Ahrend v. Odiorne, 118 Mass. 261.

Demurrer sustained, and bill dismissed.

Motion for prohibition to chancellor to restrain him from proceeding in the suit of Cruse, trustee, against Moore, Grimball, Rison, as administrator of Mrs. Grimball, and others, on the ground that Grimball, a non-resident, had petitioned for the removal of it under act of Congress, into the Circuit Court of the United States.

The property involved was Mrs. Grimball's portion of the estate of her father, Daniel Moore, who died many years ago, in Alabama. The trustee held, invested and managed it under provisions in the will, with authority to pay only the net income to testator's daughter, or to her husband if she should marry. She was married to petitioner, who resided in New York, and a few months afterwards died childless and intestate. The trust property is in Alabama, and is claimed by Mrs. Grimball's brothers and sister, under the will, and adversely to them by Rison, the administrator in Alabama of her estate, and by Grimball under the law of New York, the State of her domicil. Cruse filed his bill against them all, and some others, for a settlement of his trust, and instructions how to dispose of the trust estate. Grimball is the only non-resident. The chancellor overruled his petition.

the national government." Texas v. White, 7 Wall. 700. To the high tribunal which takes this enlarged view of our complex political system, it belongs ultimately to determine the meaning and proper operation of the statutes under consideration; and its interpretations will probably be as satisfactory as they will certainly be binding on all judges.

The present case does not come under that portion of section 12 of the judiciary act of 1789 which relates to the removal of causes, or under the act of 1867 on the same subject. It is settled that a suit that may be removed under either of these, must be one in which all the parties on one side of it must be residents, and all those on the other side non-residents of the State in which the suit is brought. That is not the situation of the parties in this cause.

MANNING, J., delivered the opinion of the court: The acts of Congress for the removal of causes from the courts of the States to those of the United States, require on the part of the judges of either government, who may have to consider and act under them, candor and good temper. Jealousy of jurisdiction, when too susceptible of alarm and resentment, is apt to hurry those under its influence into error. The institutions of both governments are established for the good of all; and it is the right of all to have them preserved and upheld in the performance of their respective proper functions. When, therefore, cases arise in which the question to be decided is, whether the cognizance of them belongs to the State courts or the Federal courts, it is the dictate of patriotism, as well as of law, that jurisdiction shall be cheerfully declined by those to which it does not pertain, and exercised without offensive arbitrariness by those entitled to exercise it. According to the Supreme Court of the United States, through the late Chief Justice Chae, "it may be not unreasonably said, that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution, as the preservation of the Union and the maintenance of

The only other two statutes on the subject are those of July 27th, 1866, and March 3d. 1875. It is contended that the former act is repealed by the latter. But a contrary conclusion was expressed on the circuit in the summer of 1877, by Justices Bradley and Miller, of the Supreme Court of the United States-by the former in the case of Girardey v. Moore, in Georgia, 5 Cent. L. J. 78, wherein he resorted to the act of 1866 for the authority to remove the cause, and by the latter, in Board of County Commr's v. Kansas Pacific Ry. Co. in Colorado, 5 Cent. L. J. 102. And we shall consider the concurrent opinions of these distinguished judges as establishing that the act of 1866 was not repealed.

According to this act, when a suit is brought by a citizen of one State in a court of that State "against a citizen of the same and a citizen of another State," the suit may be removed by the latter, if, so far as it relates to him it is brought for the purpose of restraining or enjoining him, or is a suit in which there can be a final determination of the controversy, so far as concerns him, without the presence of other defendants as parties to the cause." Rev. Stat. U. S., § 639. In Girardey v. Moore, the suit was brought to restrain Moore, a mortgagee, who resided in another State, from foreclosing his mortgage of the property involved; and in the opinion of the presiding justice, his codefendants were not necessary parties, so far as the controversy with him was concerned. Wherefore the cause was retained in the Federal court, under the authority of the act of 1866. But in the present suit there was no purpose to restrain or enjoin Grimball, the non-resident party. And it is obvious from the bill, and results from his own averments in his petition, that the controversy he claims the right to wage is a controversy against some of his defendants, and not against the plaintiff. The act of 1866 may, therefore, be dismissed from further consideration.

The act of 1875, in section 2, provides that when, in the suit to be removed, "there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the Circult

Court of the United States for the proper district." Acts of 1874-75, 471, § 2.

In reference to the first section of this act, defining the cases of which "the Circuit Court of the United States shall have original cognizance concurrent with the courts of the several States," Justice Bradley's decision, expressed in the case above mentioned is, that "the jurisdiction given to the circuit court is as broad as the judicial power" vested by the Constitution in the general government; and to that he gives the largest extent ever conceded to it by any other judge, and a larger one than some others consider consistent with the Constitution. But in regard to the second section of the act of 1875, the same learned justice ruled that if, in a suit brought in a State court, there be a controversy between citizens of different States, but "some of the plaintiffs and defendants are citizens of the same State," the removal must be sought by all the defendants; and that it is only when all the plaintiffs on one hand, and all the defendants on the other are citizens of different States," that any one or more of either, less than all, can effect the removal. Only in the latter case would there be, in the language above quoted from the second section, “a controversy which is wholly between citizens of different States, and which can be fully determined between them." "But in either case," says Justice Bradley, it is the suit that is removed, and not a part of the suit."

With this the opinion of Justice Miller, in Board of Commr's v. Kansas Pacific R. Co., supra, appears to agree. And he refused to remand that cause for the reason that, in his opinion, the real controversy, when unnecessary parties to the suit were set aside, was wholly between persons who resided in different States, and the real litigation was between them, notwithstanding the plaintiffs were compelled to place the corporation in whose favor the bill prayed for relief, and of which they were only stockholders, in the position of a defendant in the suit, because, as was alleged, the faithless and fraudulent directors who had charge of it would not allow it to appear as plaintiff.

We have referred to these cases especially, because they go further than any others we have seen, in asserting and exercising authority to remove causes that are pending in State courts into the courts of the United States. Do the rulings and reasonings in them embrace a case like the present? Let us examine it only so far as to understand the object of the suit and the relations of the parties.

Cruse, the complainant, had been appointed trustee in 1874 (after the death of a former trustee) of the property involved. It consisted of realty and personalty, valued in Grimball's petition at about $100,000. The trust was created by the will of Moore, the testator, and covered the respective shares of all his daughters in his estate. But Cruse was trustee of his daughter Catherine's portion only. In that capacity he was required to keep the possession, care and management of the trust estate under his own control, and to pay over only the net income thereof to her, or, if he thought it prudent so to do, to her husband, if she should

marry.

(See the will, of which there is an exhibit. to the bill of complaint.) She married Mr. Grimball in November, 1876, and died childless and intestate in July, 1877. Whereupon conflicting claims are set up to the trust funds and property, viz., on behalf of Mrs. Grimball's, brothers and sisters, as entitled to it by the provisions of the will, by Rison as administrator for the payment of debts and distribution, and by petitioner, Grimball.

Great responsibility was imposed on Cruse as trustee. And it is not lessened by the demand that he shall account to so many claimants. He is by no means a mere stakeholder, as the petition styles him. On the contrary, he has a profound interest in the cause. He must account therein for the trust estate and the management and proceeds of it, since it came to his hands. He must show that he has not, by lack of diligence, failed to obtain all the property and effects belonging to that estate, and this has induced him to make the executrix of his predecessor also a defendant. And the decree is to be rendered against himself, the trustee and plaintiff. In courts of equity, persons in the situation of this trustee and liable to be sued as defendants, may initiate, as plaintiffs, the proceedings for settlements to eventuate in decrees against themselves, which when satisfied, will exonerate them. But the plaintiff in such a case will be held to a responsibility no less strict than if he were pursued as a defendant. It behooves him, therefore, to see to it that all persons to whom he may be answerable for the manner in which he has executed his trust, be made parties to the cause in which he accounts, so that when the judgment of the court shall be satisfied, he will be forever discharged. And, of course, for the same reason, it is important to him, that the court rendering the decree shall have jurisdiction. Where then must this suit be prosecuted? All the parties "actually interested," or claiming to be so, are citizens of Alabama, and reside in Madison County, except Mr. Grimball. He lives in New York. And if he be successful in his contention that the gift to his wife was not of a mere life estate, but of the realty in fee simple, and of the entire property in the personalty still the personalty cannot in any event be delivered by the trustee to him. Before him comes the administrator, who also is a citizen of and under our statutes must reside in Alabama. Mr. Grimball can be entitled to make claim no otherwise than as a distributee. And though he be, as we understand him to claim that he is, the sole distributee of his wife's personal property, yet he can derive that here in question, or such as shall remain after administration, only through the administrator. To him the law commits it, and confers on him the entire transmissible ownership legal and equitable that was in Mrs Grimball when she died, for the purpose of enabling him to get in all the assets, discharge all legal and equitable claims against the same and make distribution of the residue. Therefore also no receipt or voucher that Grimball could execute to Cruse, for property or money, would avail against the claims of Rison the administrator. Indeed, Mr. Grimball was not a necessary party to Cruse's suit at all.

The right of the administrator, being a continuation in him of that of Mrs. Grimball, rests upon the same foundation as that upon which Mr. Grimball's claims are based, to wit, that there was in his wife a transmissible ownership. The maintenance of this is essential to the administrator's title; and being next in succession to Mrs. Grimball, his intestate, he is an indispensable party to the controversy. He may however be responsible hereafter to creditors and distributees, if he fail to possess himself of all the assets of her estate; but they have no present right thereto.

In our opinion, the persons who are the most important parties on both sides of the controversy in this cause, if not the only necessary parties, are those who reside in this State. None of them join Mr. Grimball in his petition for a removal of the suit. There is not in it "a controversy which is wholly between citizens of different States and which can be fully determined between them," and it is not, therefore, such a suit as under the act of 1875 can be removed upon the petition of one of the several defendants.

But it was further contended in this cause that, upon the filing of a petition for removal and offering a bond for costs as prescribed in the statute, by a person sued in a State court, the jurisdiction of the court ceases, and it must "proceed no further in such suit;" and that it may not look into the records and papers to ascertain for itself whether or not the cause is of that class or nature which the statute authorizes to be transferred to the proper Federal court.

We are not unmindful of the evils that may ensue from the exercise of a clashing jurisdiction by State courts and courts of the United States, over the same parties and causes. It is the duty of those tribunals to do all they properly can to prevent such consequences. But that a State court shall be paralyzed into impotency by the mere presentation of the petition and bond of a party sued therein, and be rendered incompetent to inform itself by looking into the record and papers on file, whether the suit belongs to a removable class, is, we think, an indefensible proposition. Why should a petition be presented at all, if no response is to be made to it and it may not be considered? According to the argument, it were fitter that the petition should be, in form as well as effect, a notice to the court that the person filing it demanded that it should no further interfere with him, but transfer the cause by which he had been brought there to another jurisdiction. Did the senators, representing the several States of the Union, vote the passage of an act intended to be so injurious to the authority and dignity of the tribunals by which the laws of those States are enforced, justice administered and peace and order maintained?

The acts of Congress particularly define the character of the suits which may be removed, and the relation thereto and toward the other parties, of the persons to whom the privilege of removal is conceded. And it is enacted that if, in any such suit, a party "entitled to remove" it files his petition and bond, &c., the State court shall proceed

no further. It is only when those conditions exist that the court is ousted by law of its jurisdiction. By yielding it in any other case, the court would not be obeying the law, but submitting to the demand of an individual. And whether it is doing the one or the other it cannot know, without so far looking into the case as to ascertain whether it be removable or not under the law. To do this, is a duty it owes to the State by which its powers were granted, and the obligation was imposed upon it to employ them in administering justice in all cases within its cognizance brought before it, except such as are prohibited to it by superior authority. And the importance of making such an examination is forcibly impressed by an accidental circumstance in the present case. By a mere oversight, the petition of Grimball, while purporting to set forth the names of all the parties to the suit of Cruse (a statement needful to the end in view), omits any mention of Rison, the administrator; who, as we have seen, is an indispensable party to the cause more important, as such, than the petitioner himself, to a final determination of it. The omission was evidently a mistake; for Rison's name and office and position as defendant, are men ioned in the bond that was filed with the petition. But, how easy would it be, if the views of petitioner's counsel are correct, for one whom a little delay might enable to commit a great fraud (against which the statute provides for no security in the bond it prescribes), to avail himself, in order to do so. of this process of removal in almost any suit against him, by merely filing in court his unverified petition (no oath to it is required), and an inadequate bond. By the time the case should be remanded, the plaintiff may have lost all the means he had of obtaining satisfaction.

It is not necessary, however, to discuss this matter further. We understand our view to be the same as that of the Supreme Court of the United States. It is supported by the opinion of the Chief Justice in Railway Co. v. Ramsey, 22 Wal. 328, referred to in the able argument on this subject of ex-chancellor Cooper, of Tennessee, published in the Southern Law Review. And the recent case of Insurance Co. v. Pechner, 95 U. S. 183, is confirmatory of the like conclusion. In the latter case, a removal was prayed of a suit brought in a State court of New York, which court, regarding the petition as not showing a sufficient cause for the transfer, refused to allow it, and proceeded to trial and judgment. This was affirmed in the New York Court of Appeals; whence the cause was carried by writ of error to the Supreme Court at Washington, and that tribual, concurring in the opinion of the courts of New York, affirmed their judgment.

In these instances, it is true, the defect appeared on the face of the petition itself. But every such petition makes the case it relates to, by reference to it, a part of the petition; and cannot be properly and fully understood without some knowledge of the case. The decisions cited are, therefore, in our view, authorities in support of the proposition that the

State court must examine the petition, and, if necessary, look into the case to which it relates, in order to ascertain whether it and the petitioner's relation to it are such as that he is entitled to the removal he prays for. If he is, the court has no discretion, and is compelled to permit the transfer to be made." Railway Co. v. Ramsey, supra. We do not extend our opinion beyond the questions presented for our decision in the cause before us. The chancellor's ruling in it, we think, was correct; and the writ of prohibition applied for must be refused.

BRICKELL, C. J., not sitting.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1878.

EQUITY-JURISDICTION AS TO WRITTEN INSTRUMENT - REFORMATION.-1. Courts of equity have jurisdiction of controversies arising out of transactions evidenced by written instruments which are lost; or if the instrument is illegally framed or is vitiated by fraud, or if executed in ignorance or mistake of facts material to its operation, the error may be corrected or the transaction rescinded. Equities of this kind are incapable of enforcement at common law. Relief can only be granted in such cases in an equity court. 2. When an instrument is drawn and executed which professes or is intended to carry a prior agreement into execution, which by mistake violates or fails to fulfil the intention of the parties, equity, if the proof is clear, will reform the agreement and correct the mistakes. 3. Irregularity in proceedings may justify a reversal of a decree and the remanding of the case, but it will seldom or never present just cause for dismissing the bill.-Ivison v. Hutton. Appeal from the Supreme Court of the Territory of Wyoming. Opinion by Mr, Justice CLIFFORD. Decree reversed. FALSE IMPRISONMENT DAMAGES.-1. In an action against an officer for unlawful arrest and false imprisonment, held, that evidence was admissible in mitigation of exemplary damages, of facts tending to show that the plaintiff was guilty of the offense for which the arrest was made, although such facts were not a justification and the defendant was not aware of them when he made the arrest. 2. Where the injured party seeks to show a cause of great aggravation, cruelty and injustice, and upon that ground asks for exemplary damages by way of punishment, it is competent in reduction of such damages, and for the purpose of restricting the jury to compensatory damages, to give in evidence such facts and circumstances connected with the injury complained of as may show the truth of the whole case as it existed at the time of the alleged injury.-Beckwith v. Bean. In error to the Circuit Court of the United States for the District of Vermont. Opinion by Mr. Justice HARLAN. Judg ment reversed. Reported in full, 19 Alb. L. J. 109. OFFICIAL BONDS-SURETY-WHAT NOT SUFFICIENT TO DISCHARGE.-Suit against the surety upon the bond of a collector of customs, the condition of which is that he had truly executed and discharged, and should continue to execute and discharge all the duties of the office of collector according to law, and the breach assigned was that he had failed to account for and pay over the money received by him in his official capacity as collector. 1. Plea alleges laches on the part of the government in failing to assert its claim against other sureties on the bond, whereby, it is averred, the

liability of the defendant's testator, if it ever existed, was discharged. Held, no defense. Laches of the officers or agents of the government is confessedly no bar to the assertion of its rights. 2. A plea charges that the duties, risks and responsibilities of the collector were raised, enlarged and changed during his official term, and consequently that the liability of the surety upon the bond, if it ever existed, was avoided and discharged. Held, that even if the addition of duties differed in their nature from those which belonged to the office when the official bond was given, that would not render void the bond as a security for the performance of the duties at first assumed, it would still remain a security for what it was originally given to secure. Converse v. United States, 21 How. 463, Broom v. United States, 15 Id. 143.-Gaussen v. United States. In error to the Circuit Court of the United States for the District of Louisiana. Opinion by Mr. Justice STRONG. Judgment affirmed.

CORN STANDING ON THE WIFE'S LAND-EXEMPTION.-1. Corn standing on the wife's land, held as general estate, is subject to levy and sale under an execution against her husband. 2. Annual crops of grain planted or sowed to be in due season removed from the soil, are not considered as real property. Corn is treated as personalty by the statute prohibiting its sale until after the first of October, so as to give it time to mature. Affirmed. Opinion by ELLIOTT, J. -Moreland v. Myall.

SPECIFIC PERFORMANCE

RESCISSION.-1. G and L being joint owners of houses and lots agree upon a division thereof, conveyances to be made immediately so as to vest each with title to his part thereof. G conveyed his interest in L's part to him. L made a deed which G refused to accept, because L's wife refused to sign and acknowledge it, and thereafter L failed to make a deed to G. After two of the houses which L ought to have conveyed to G had been destroyed by fire, G commenced this suit, setting up the contract of division, and the failure of L to convey to him, etc., and prays for a rescission and a redivision. L filed his answer and cross-petition, tendering a deed duly signed and acknowledged by his wife two and a half years after the contract of division was made, and sought a specific execution of that contract. Held, that L was not entitled to a specific execution, but that G was entitled to a rescission and a redivision. 2. When there is a change of circumstances affecting both the character and justice of the contract which can not be compensated for in damages, resulting from the failure or refusal of one party to perform his part of the coutract, that party is not entitled to a specific execution, but the injured party is entitled to a rescission. Opinion by ELLIOTT, J.-Gross v. Liebers.

ASSIGNMENT OF DEBT-LIENS-RELEASE-PURCHASERS CREDITORS.-1. The assignment of a debt carries with it a vendor's lien by which it is secured. When several obligations are secured by a common lien, the assignment of a portion of them operates to transfer the lien pro tanto. McClannshaw v. Chambers, 1 Mon. 45. 2. Lien retained in a deed to secure purchase-notes may be released by grantor, as to a