Page:Federal Reporter, 1st Series, Volume 10.djvu/34

22 FEDBBAIi BEPOBTEB. �all fiis rights at such a settlement. The ruling, therefore, that has already been made in the case is conclusive of this question. The payment of the mechanics' lien claims was outside of and beyond the contract. Perhaps, as between the plaintiff here and the principal on the bond, the plaintifE could pay those claims and charge them to the principal in their settlement with him. At all events, after there was a judgment upon them that concluded them both, they had a right to act npon the hypothesis that they were valid, and that the board was bound to pay them; but we have found, upon investiga- tion, that they were not valid claims, and that their payment did net bind this defendant as surety. I think, therefore, that the objection to the evidence now offered must be sustained. �It will be unnecessary to go iuto a discussion of the long Une of cases; ilpon the general subjeot of res adjudicata, as to how far parties and privies are bound by the judgments of courts of general jurisdic- tiou, because this case is one of a class of its own and stands by itself. The act of congress prorides, or did provide — for I think that act is now repealed by the latter act on the subject, and I am very glad that it is — for splitting a case in the state court, and bringing so much of it as constitutes a controversy between citizens of different states in the federal courts. Under that act so much of this controversy as is between the plaintiff and the surety upon the bond has been brought here, while so much of it as is between the plaintiff and the principal upon the bond remained in the state court, and has been tried there. The fundamental principle of this subject is thata party is bound by an adjudication only where he is so far, at least, within the jurisdic- tion of the court as to be heard in the course of the litigation ; he must be a party to the suit or proceeding in such sense as to have a right to appear there, to make motions to the court, to intro- duce testimony, to cross-examine witnesses, and to take an appeal. Those are the rights which, generally, a party must have in order to be bound by an adjudication. Now, we must assume that this case was properly removed, as I have before said in considering some pre- liminary questions, and, assuming that, we are bound to say that after removal, the moment the order of removal was made, this defend- ant passed from the jurisdiction of the state court. He had no right to appear there anyfurther; hehadno power to introduce testimony, to make motions, to be heard, or to take an appeal. Besides, as counsel have suggested, the whole purpose of the removal act of 18C6 would be defeated by the construction which is contended for by the counsel for the plaintiff. • If the party who brings a part of a case ��� �