258
nIDEBAL .REPORTER,
vol. 50. '.
rule.to bel' "H'thelfJla,intiff ha:s a'cause of action in ,tort or.tipoiicontract against severaldefel!ldantst'''hieh is joint, or, being joinh,nd sEl'veraJ,is on jointly by the plaintiff,: the defendants cann<:>t,by tendering seIiarate issues,in their answers,,;create separable.:controversies, 80 as to authorize a. removal of . But the plaintiffs here cannot, by j'@'illlpg entirely sepnrate and distinot 'causes of ,action, some legal and lIo.tfle equitable, upon ,each and every bill of ladirlgjupon each and every p@4ioy and upon. the contract of the cOmpress company; sev,el"able, alike,lalso\ as to 'themselves, :so '. that' each and .everY' inarine hils' eMh ,and every ca:use' or action all to itself upon, all these eontl'aots'fpossessmg not oue sirigle.elenientofjoiht right ,or joint Habil.. ity",mong.th.em all, defeat the JedEn:ro: jurisdiction over anyone of them, where tbtl, c0'nditions of the removal aot 'are complied· with in time, and any of the proper defendants' make: the application. Overrule the mo..i tion.· . w,cl:\ment. :Bill; il; st\U plain t\1at thiij garnIshment of the lire tXlmpanies was only i1101-, dental to the suit as the 0.; V. & O. Line, and did not at all'a:tl'ect the fact thilt the tlre,cOmpanies paftiesoll. their own account, aod are sued in that capacity. The fact tMt tb,IIY are to a eo.defendant, and occupy this dual tioD to the reCord, doea' 'o6t in any sense change the attitude of the case in this matter of ithe remo:vabilityof 'the suit. ;. If they were discharged as garnishees on their answei' nr()C6Sij that they owednotlll.ng,the.y would still, on this record, be partills to tlJ.'e suit;' and would be compellejl to answer suoh decree for contribution or other rellef as migbtbe given against thea' . ." all :a.nBu-reBident 'Under the Tennessee 'Colle' and garnishments were issued on that at;.;
N()\-B' 'I:D,#d'uppn
o:ftberelJi)rdtbahhe"C., v. & C. Line"is attached
CA$EY t1. VASSQR ',J'};'
et ale
:'
(OircUU'Court, :p.Neliras'ka. July,l8S9.) ,,: , ;,.' , .' "; . .
'
PvBLJoLANDS.".J'uBI8DICTtON ,Ol!' LANb OJrl/IOIIlRS.
'The «ourts will not, by reasoll.of 1i!;lllir illrlsdlctIon of the parties to 8 CBuse,determine.theirrespective rights ·ed enter or purchase from the Urited States a tract of tJ1epubl1alaod, wllen thacontraversybetween them remains peodingbefore the . lit,.me.nt of the govern,m,ent; nor'l'l':ill t,hey pass .a. decree wlU render void when Issued. Ma'l'qli.es v. FHsbie, 101 U. S. 473, applied. , .-. J ',' , . "' ·.' . \" '
i,'· On demurrer to.bill. The complainant iLl h.er bill alleges that she is a bona fide settler upon 80 acres of tbe pUblic land situated within the Sac and Fox reservation in Richardson,county, Neb.; that, she became an actual settler and oc-, oupaut uponJsaid land withtht.dntent of purchasing from the United becQming the owner thereof, under 'an act-of congress authorizing itssple'dapprovedAugast'15., 1$76, (19 St.p. 208;) that said land was, d ulyappl'pised, as required:.bN:;said statute, at $5 per acre; .that com-: pll\inant,on' the.21at.day of 'Juqe\ 187,8, madeth{j reqUisite proof before t\1e,l'egist",raJ;ld. teceiver of the Jand6ffice at Beatrice, Neb., and that she; then paid to the receiver ofsaidrrand 6fficethe sum of $133.34, being thetirst payxnent oCone .third of.thepurchase. price, and thereupon she' was allowed to e.ntel' said land,llloIld;.received froxnsaid officer a certificate
.In.
:CASEY
v.
,V:ASSOR.
259
showing the said facts. The bill proceeds to aver the making of improvemeu.ts and other facts tending to .Sh0W tbat complainant was" an actual settler" within the meaning of the statutes. It is further averred that on the 26th of August, 1879, the defendant Vassor served com· plainant with notice that he would contest her right to enter said land, and that fl.fte.r\fards atrial, w!:lshad befot'e the register and receiver, who qefided in'complninant;sfnvor,' and was' an acLual settler; and. that theteupon said Vassor appealed;from said. ruling to the COm· :rriissibrier oftbegenerallhnd 6ffi<:eat\VasHington, by whom the decision below was reversed, and it was declared that Vassor had the right: to enter the land. . It is alleged that Vassorwas not an actual settler, and had no right to land, and, t,he decision of the cOm&issionerof the general land office was incorrect, and not sustained by law; that complainant has fully cOhlplied with and tberespondentVassor has not; that since the commencement of this suit respondents have paid one or more installments u,pon the land, and now unjustly claim that one or both have the exclusive'right to purchase, and that they have expelled cOll?plainant from thelllind, and that defendant Vassor hasexecuted a deed conveying said land to defendant Quinlan, who is charged with notice of complainant's rights. It is not alleged that a patent has been issued to either claimant. The prayer is for decree that complainant has the first, sale, and exclusive right, as against defendants, to enter and, become the purchaser of saiel land, and iJlatwhatever right the respondents may have is subordinate and subject to her rights, and held by them simply as trustees for her,and that they be ordered to convey, etc. a. Gillespie and E. W.· TluYrr1ll8, for complainant. Manderson &: Congdon, for respondents· .MCCRARY, .Circuit Judge. This case falls clearly within the principle announced by. the supreme court of the United States in M(trquez v. me,101 U;S. 473.· It is there. held, in a case very analogous to the one before us, that a court will not, by reason of its jUl'isdict:on of the parties, determine their respective rights to a tract of land which are the subject-matter of a pending controversy in the land department, nor will it pass a decree which will render void a patent when it shall be iSSUed. Relief in that case was refused because it appeared-"First, that defend· ants had not the legal title; uecond, that it was in the United Statesjand, third, that the matter was still in fieri, and under the control of the land officers." For the same reason we must refuse relief in the present case. The effect of a decree, if one w.ere rendered in accordance with the prayer of the bill, would· be to interfere with the officers of the government while in the discharge of their duties in disposing of the public lands,and this the courts will 110t do. Litchfield v. Register, 9 Wall. 575; Gaines v. Thompson, 7 Wall. 347 j Secretary v. McGarrahan, 9 Wall. 298; Marquez v. Frisbie, lmpra. It is unnecessary to determine the question whether the decision ,of the land department that complainant was not an actual settler is the decision of a question of fact, and,in the absence offraud, final and conclusive. The demurrer to the bill is sustained.
260 BARLING
FEDERA.L REPORTER» voL 50. et all V. BA.NK OJ' BRITISH NORTH AMERICA. NtnthCf.rcuit. April 28, 1892.)
(Circuit Coun of 1,SU'l\1II
Theaet of the OtlUfomfa legislature of April 1, 1876, entftled"An act coneeming corl>orations and perionsengllged in the business of banking," does not prohibit such corporations or persons ffom maintaining actions in the national C(lurts. nor has the legislature the 80 to do; nor does the act apply to blislness done by a foreign corporation without the state. BEARER
IN NA.TlON,A.L COlTB'l\S,
8.
NOTE . A.·.D. o$i!made
by a California corpora.tion.. payable to itself and indorsed in blank, and delivered to another, is a note .pay.able to bearer; and a foreign corporation, Wbtoli subsequently becomea the holder thereof, may maintain an action thereon in ,t.heJj.ational court, sitting in. California, a/otainst a citizen ·thereof. and mavalso I!1lllntaln.such action against such citizen who is a stockholder In such corporation1 on the ground of his statutory liability for the debts of the corporation. even If saia is payable to order. .. .. .. . ·
A party against whom a judgment Is in a district or circuit court may take the case to the supreme court directly on the question of jurisdiction, if the Ilame.is at issue, or to the circuit court of appeals on the whole case, and the court Of appeals may, if it sees proper, certify atIyquestion arising therein to the supreme .' ,court. . . 46 Fed. Rep. 857. amrmed. . I
by the Court.)
M ,Lltw. Affirmed. 'Carter P. Pomeroy,
to the Circuit Court of the Northern District of California. Titu8, for plaintiflsin erroJ;.,
for defendant in error. Before McKENNA apd Circuit Judges, and DEA.DY, District Judge. DEA»'¥, District Judge. On April 5, 1888, the Alaska Improvement COmpany,.a corporation formed under the laws of California, drew three billBo! exchange on William T. Coleman & Co., citizens of the state of Californiaj payable to itself, the· first two in 60 days, and the third in 90 days, 'after date, for the sum of $2,740, $2,500, and $4,000, respectively, and on the same day indorsed the same in blank, and, before rna· turity thereof, transferred and delivered the same to said Coleman & Co., who subsequently, and before maturity thereof, in consideration of the amount of the face of said bills, paid them by the plaintiff, transferred and delivered the same to it in the state of Oregon; and on April 27, 1888,said bills were duly accepted by said Coleman & Co., who failed to pay them,upon due presentation for that purpose, of all which the Alaska Company had notice and neglected to pay the same. On April 8, 1890, this, action was commenced in the circuit court by the plaintiff against the defendants Earling and Eva, citizens of California, and stockholders of said Alaska Company, under section 322 of the Civil Code of California, which provides thatiltookholder of a corporation is individuallyand personally liable for such proportion of ita debts and liabilities as the amount of stock or sbares