Page:Federal Reporter, 1st Series, Volume 8.djvu/118

104 FEDERAL REPORTES. �remanded under the provision of the fifth section of the act of March 3, 1875, wfhich provides that — �" If in any suit commenced in a circuit court, or removed from a state court to a circuit court of the United States, it shall appear at any time after such suit has been brought or removed tliereto that such suit does not really and substantially involve a dispute or controversy properly within the juris- diction of such circuit court, the said circuit court shall proceed no further therein, but shall dismiss or remand, as justice may require." �If we are to eonsider Litchfield's cross-bill with his proposed amendment, it seems to me that the reasons for remanding are im- perative. He alleges that he has assumed to pay any sum that may be adjudged for taxes against the navigation oompany. If so, the controversy is one and inseparable. The plaintiff claims a personal judgment against the navigation company, and Litchfield, by his amendment, insists that he has a right to resist the obtaining of such a judgment, because if it be rendered he has assumed to pay it. This is the new case made by his last-proposed amendment. Can this be said to be a "controversy wholly between citizens of different states," •within the terms of the second clause of the second section of the act of 1875 ? And can this controversy "be fully determined as between" Litchfield and the plaintiff without unavoidably involving a contro- versy with the navigation company ? Litchfield's liability depends, by his own statement, in the proposed amendment upon the plain- tiff's success in obtaining a judgment against the navigation com- pany in his controversy with that company. How, then, can the con- troversy which Litchfield raises by this amendment be a "controversy wholly" between himself and the plaintiff, "citizens of different states?" And how can it be "fully determined" between them with- out involving the issue between the plaintiff and the navigation com- pany, who axQ citizens of the same state ? �Since writing the foregoing my attention has been called to the decision of the supreme «ourt of the United States in the case of Bar- ney v.Latlmm, just published in the Cent. Law Journal. It is, beyond question, held in that case that where a plaintiff in the state court in one suit unites two distinct controversies, — one with a citizen of his own state, and the other with citizens of other and different states, — the latter may have the cause removed. This case is clearly distin- guishable from the one now before us by essential circumstances. The plaintiff in Barney v. Latliaiii chose his own adversaries and ��� �