Page:Federal Reporter, 1st Series, Volume 1.djvu/551

BDBEB V. TLOOD. 619 �to be laid down in the latter case, upon mature consideration, after a re-argument, in which any attorney f eeling an interest in the question, -whether of counsel in the case or not, was invited to participate as amicus curice. In this court this will be regarded by me as the settled construction of the section untn otherwise ruled by the supreme court. In this case, even after transposing the Consolidated Virginia Mining Company, defendant, to the'side of the complainant, Burke, we have stiU two citizens of California on one side of the controversy, and two citizens of the same state, California, and two citizens of Nevada on the other. The persons com- posing the party on one side of the controversy, therefore, not being ail citizens of different states from the party on the other, the case was not removable under the construction established, and it must be remanded. �Was the case properly removed as to defendants Mackey and Fair under the act of 1866, as carried into the Eevised Statutes in section 639? The complainant, Burke, a citizen of California, files his bill against the Consolidated Virginia Mining Company and the Pacific Wood, Lumber & Flume Company, both corporations organized under the laws of California, J. C. Flood, a citizen of California, and John W. Mackey and James G. Fair, citizens of Nevada. He alleges in substance, among other things, that he is a stockholder in the Consolidated Virginia Mining Company; that he has made a demand upon that corporation to bring the suit, which it declined to do ; whereupon he brings it himself as a stockholder on his own behalf , and on behalf of ail other stock- holders who choose to corne in and share in the expanse of this prosecution, making the corporation a defendant. He further alleges that defendants Flood, Mackey and Fair, and W. S. O'Brien, were either directors, or controlled the di- rectors of the defendant, the Consolidated Virginia Mining Company ; that they f raudulently conspired together to injure the Consolidated Virginia Mining Company, and to that end organized the corporation defendant, the Pacific Wood, Lum- ber & Flume Company, of which they were the stockholdera and officers, or controlled the officera; that through the de- ��� �