plainant, Donohoe, and the New York defendant, which can be fully determined as between them? Donohoe is seeking a decree for a large sum of money, which he claims to be due from the Mariposa Company, and to obtain the money claimed to be due, by a foreclosure of a mortgage and sale of the mortgaged premises, the legal title to which is in said Mariposa Company. He does not claim anything from the other defendant, except to conclude it by the decree against the real defendant, and there is no interest whatever in the foreign defendant except a lien upon the surplus after Donohoe's just demand, whatever it may turn out to be, is paid. The whole contest is primarily and really between complainant and the Mariposa Company-the interest in the other defendant being only secondary. There is but a single indivisible controversy between the complainant and the Mariposa Company, in which the foreign defendant has a derivative interest merely. The controversy between Donohoe and the Mariposa Company is the principal, direct, and only controversy, while that of the other defendant is only incidental by reason of a relation to the debtor voluntarily assumed after the interest of Donohoe attached. The defense set up by the foreign defendant is precisely the same as that set up by the debtor and principal defendant, and must be sustained by the same evidence. Its own defense must be made through the Mariposa Company, as its rights were derived through it alone. It succeeds to a lien upon what the Mariposa Company had left after satisfying the claim of Donohoe-nothing less, nothing more. It stands to the extent of its lien in its predecessor's shoes. The Mariposa Company is interposed between the complainant and the other defendant in the contest. There is no charge of collusion between Donohoe and the Mariposa Company; and there is no defense set up which is not, also, the defense of the Mariposa Company. The controversy, therefore, is one and indivisible, and not wholly or principally between the complainant and the foreign defendant, but the latter's controversy is merely incidental to the real substantial controversy, which is between Donohoe and the other defendant. Again,

the controversy can not "be fully determined as between them," or determined at all without the presence of the Mariposa Company. A decree in a proceeding between Donohoe and The Farmers' Loan and Trust Company, without the presence of the Mariposa Company, would be futile. It would in no way conduce to the accomplishment of the object of Donohoe's suit. There would be no practical or useful result if Donohoe should succeed. How then can it be said. that the controversy can be "fully determined as between them," when the determination, if in Donohoe's favor, would be fruitless? A decree between Donohoe and The Farmers' Loan and Trust Company alone would not affect the rights of the Mariposa Company, and no effective sale of the premises under it could be had. No party would bid at such a sale, because a sale would transfer nothing tangible.

So a decree against The Mariposa Land and Mining Company alone would not affect the rights of the other defendant; and, as has often been held in this State, a clear title would not pass by sale under such a decree. The decree in neither case, therefore, would afford the remedy sought, and I do not know of any means by which parties could safely purchase under both. There could, then, be no separate determination of the controversy which would afford either singly or together an effectual remedy to Donohoe. It is no answer to say, that the whole suit would be transferred, and that then there would be but one decree, which would bind all parties, for we are not discussing the question as to what would be transferred, but are dealing with the test which the statutes have prescribed, by which to determine whether anything can be transferred. And that test is that there must be a controversy which is wholly between the separate parties, which can be fully determined as between them so as to be effectual in separate actions. If such determination can not be had separately and independently, then the case is not one which the statute authorizes to be transferred at all, either wholly or in part. Besides this case is not within the reason upon which the jurisdiction is based. The only real controversy being between

citizens of the same State, the interposition of the Mariposa Company between the complainant and The Farmers' Loan and Trust Company, which is only incidentally interested through its co-defendant, is presumed to be a sufficient safeguard against any prejudice that might exist. It is, doubtless, upon this very theory that the act is framed with the limitations found in it.

In my judgment the case clearly does not present a controversy, which is wholly between citizens of different States, which can be fully determined as between them" within the meaning of the statute. Even the authorities cited by defendants' counsel properly considered sustain this view. For example, Judge Dillon's tract on "Removal of Causes" is cited wherein he says (p. 30), "If the substantial controversy is wholly between citizens of the same State, it is not, and can not become, one of Federal cognizance; but if the real litigation is between citizens of different States, the case is within the Constitutional grant of Federal judicial power, notwithstanding some of the adversary parties may happen to be citizens of the same State with some of the plaintiffs." In this case the substantial controversy is between the complainant and the Mariposa Company. So again, he cites Mr. Justice Davis' observation from a note in Dillon on Removals (p. 35), "that the intention of Congress, plainly expressed in the Act of March 3, 1875, was, that where the main controversy in a case was between citizens of different States, it was removable, and carried with it all the incidents; and that a mere incident would not prevent the case from being removed." If this be true, and I have no doubt that it is, the converse of the proposition is equally true; and if the main controversy is between citizens of the same State, it is not removable, and the mere incident will not confer a right of removal. The incident must follow the real controversy to which it is inseparably annexed. In this case, there is but one indivisible controversy, and that is as to whether there is really anything justly due from the Mariposa Company to the complainants, and if so, how much. And that controversy is directly and primarily between the complainant and his alleged debtor and mortgagor. There is

no subordinate, independent, or other controversy between the complainant and the foreign defendant. Its interest in this same controversy is only incident to the main controversy by reason of its relation to the debtor and real party. These views appear to me to be sustained by the current of decisions on the circuit. (See Chicago vs. Gage, 6 Bissell, 467; Osgood vs. D. & V. R. R. Co., Ib, 331; Arrappahoe County vs. K. P. R. R., 5 Cent. L. Jour. 102; Cape Gir. and St. L. R. vs. Winston, 4 Cent. L. Jour. 127; Carraher vs. Brennan, 4 L. & Eq. Rep. 159; Tyler vs. Hagerty, 5 Reporter, 300; Latham vs. Barry, 4 L. & Eq. Rep. 459; Peterson vs. Chapman, 13 Blatch. 395; First National Bk. of Manhattan vs. The King Wrought Iron Bridge Co., 2 Cent. L. Jour. 505, 616.)

It is urged by defendants, that, since the removal, the foreign defendant has filed a cross-bill against the complainant and its co-defendant, and that as to the cross-bill, there is a suit pending in which the complainant is a citizen of New York, and all the defendants are citizens of California, and that the suit for this reason is now properly in this court, whatever the case might have been at the time of the removal. But the cross-bill, so far as the complainants in the original and cross-bills are interested, sets up precisely the same matters as were set up by both defendants in the original bill. It is but a repetition of the defense already set up in the answers of both defendants. It could not go beyond the matters of the original bill. "A cross-bill is a defense." (Gallatin vs. Irwin, Hop. Ch. R. 58-9.) "The original bill and the cross-bill are but one cause." (3 Dan. Ch. Pr. 1743, Ed. 1851.) "Both the original and cross-bill constitute but one suit." (Ayer vs. Carver, 17 How. 595.) "It should not introduce any distinct matter. It is auxiliary to the original suit, and a graft and dependency on it." (Rubber Co. vs. Goodyear, 9 Wal. 809; Cross vs. De Valle, 1 Wal. 5; Field vs. Schieffelin, 7 John. Ch. 252.) The dismissal of the original bill before a hearing would doubtless carry the cross-bill with it as a part of the suit. (Slason vs. Wright, 14 Vermont, 209-10.) The fact, therefore, that a cross-bill has been filed setting up the same matters put in issue by

the original bill and answers can not change the character of the case, or affect the question of jurisdiction. The original bill is still the suit, the cross-bill being but an appendage constituting a part of it.

The view taken upon the main question renders it unnecessary to notice the technical objections taken to the removal. The cause must be remanded to the State Court with costs, against the party removing it, and it is so ordered.

May 6, 1878.

Jno. T. Doyle and Wm. Barber, for motion.

J. W. Winans, S. Heydenfeldt, and McAllisters & Bergin,

contra.

Negligence-Passenger Landing from Steamboat.-Appellee was a passenger on one of the boats belonging to appellant, and was injured while on the staging, going ashore, being struck by the handles of a coal-box in the hands of the workmen of the boat. This was at Quincy, and it was maintained that appellee ought to have remained in the cabin for the two hours the boat was to remain at the wharf. Held, that such an objection is untenable. That appellee, in thus landing, could not be held to extraordinary care and prudence, as there was no appearance of danger. There was no similarity in this case to the case of a passenger attempting to leave a train before reaching the platform. Carriers of passengers for hire are bound to the utmost care and diligence in providing for their safety, by the use of efficient and suitable modes of carriage, and in managing, directing, and using these means thus provided. The decrees of care, vigilance, and skill, are the highest; and the responsibility is for the least neglect known to the law short of insurance. Sup. Ct., Illinois, Feb. 9, 1878. Keokuk N. L. Packet Co. vs. True.