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It is very apparent from the face of the agreement on which the right to the dismissal depends that the suit was originally brought by the county of Sacramento for its own benefit, and that the name of Cashman was used with his consent, because the county could not sue in its own name in the circuit court of the United States. The recital shows, in express terms, that the suit was brought for the benefit of the county because it desired to restrain the miners from depositing the debris from their mines in the bed of the river, and it could not sue therefor in its own name in the courts of the United States. For this reason the county provided the attorneys who were to "institute, conduct, and manage such suit," and it agreed "to pay all the charges, costs, and expenses thereof, or connected therewith, and to hold and keep Cashman safe and harmless from any costs, counsel fees, charges, or expenses to be paid or incurred in the institution, conduct, and prosecution of the suit;" and Cashman, on his part, agreed "not to compromise, dismiss, or settle the * suit without the consent of the county, and to allow the county and the attorneys, in its behalf, to manage and conduct the * * suit to the same extent and in the same manner as if such suit had been commenced and prosecuted in the name of the county." From the very beginning the suit was and is in reality the suit of the county, with a party plaintiff "collusively made," "for the purpose of creating a case cognizable" by the circuit court of the United States under the act of March 3, 1875. While, therefore, the "dispute or controversy" "involved" is nominally between Cashman, an alien, and the defendants, citizens of California, it is really and substantially between one of the counties of California and citizens of that state, and thus not "properly within the jurisdiction" of the circuit court. The order dismissing the suit is affirmed.

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(118 U. S. 37)

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SOUTH BOSTON IRON CO. D. UNITED STATES.
Filed April 19, 1886.

ARMY AND NAVY-CONTRACTS BY NAVY DEPARTMENT, HOW EXECUTED.

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To bind the United States, contracts by the navy department must be in writing, and signed by contracting parties. Signing preliminary memoranda for the contract will not suffice.

Appeal from the Court of Claims.

John C. Fay, for appellant, South Boston Iron Co. Sol. Gen. Goode, for the United States.

WAITE, C. J. In Clark v. U. S., 95 U. S. 539, it was decided that, to bind the United States, contracts by the navy department must be in writing, and signed by the contracting parties. Such, in the opinion of the court, was the effect of the act of June 2, 1862, (12 St. 411, c. 93,) now in force as sections 3744-3747, 512-515, Rev. St. An effort has been made in this case to show a contract in writing, but we agree entirely with the court of claims that the papers relied on for that purpose are nothing more in law or in fact than the preliminary memoranda made by the parties for use in preparing a contract for execution in the form required by law. This was never done and therefore the United States never became bound. Within a very few days after the memoranda were inade the whole matter was abandoned by the department, and the iron company has neither performed any of the work which was referred to, nor has it ever been called on to do so.

The judgment is affirmed.

(118 U. S. 54)

CAMBRIA IRON Co. v. ASHBURN, Trustee, etc.
Filed April 19, 1886.

REMOVAL OF CAUSES-JURISDICTION-CITIZENSHIP.

Upon a petition filed for the removal of a suit from a state court to the circuit court of the United States, under section 5 of the act of March 3, 1875, (18 St. 470, c. 137,) the circuit court cannot take jurisdiction of the cause if all the parties on one side of the suit are not citizens of different states from those on the other. If there are necessary parties on one side of the suit citizens of the same state with those on the other, the circuit court cannot takejurisdiction. In such a case an order of the circuit court remanding the cause to the state court will be affirmed.

Appeal from the Circuit Court of the United States for the Southern District of Ohio.

Wm. M. Ramsey, Lawrence Maxwell, Jr., and Mortimer Matthews, for appellants, Cambria Iron Co. C. B. Matthews, for appellee, Thomas Q. Ashburn, Trustee, etc.

WAITE, C. J. This is an appeal under section 5 of the act of March 3, 1875, (18 St. 470, c. 137,) from an order of the circuit court remanding a cause which had been removed from a state court. The facts are these: On the fourteenth of September, 1883, Stephen Feike brought suit in the court of common pleas of Scioto county, Ohio, against the Cincinnati & Southeastern Railroad Company, to collect a debt due to him from the railroad company, and asking the appointment of a receiver. On the same day that the petition was filed the railroad company, then the only defendant, entered its appearance, and waived both process and notice of an application for the appointment of a receiver. At the same time W. R. McGill, another creditor of the company, came in, and by leave of the court made himself a party defendant, and filed an answer and cross-petition, in which he asked for himself the same relief that had been prayed by Feike. Immediately upon the filing of these pleadings a receiver was appointed with full power to take possession of and manage the railroad and other property of the company. On the twentieth of September, R. M. Shoemaker, T. Q. Ashburn, M. Jamison, P. F. Swing, and L. W. Bishop, trustees under various mortgages of the railroad company, came in voluntarily, and by leave of the court made themselves parties defendant. On the fifth of November, Shoemaker, one of the trustees, answered the petition. On the twenty-first of February, 1884, the Lomas Forge & Bridge Company was made a defendant, and filed a cross-petition, asking to be paid certain claims for supplies out of the earnings of the road. On the fifth of June, 1884, the Cambria Iron Company, a Pennsylvania corporation, filed an answer and cross-petition, by leave of the court, to recover the price of a quantity of steel rails which had been delivered to the railroad company a short time before the appointment of the receiver, and used in the construction of the railroad, or to have a return of the rails with a reasonable compensation for their use. A judgment for damages was also asked because of a refusal to accept other rails which had been contracted for and a delivery tendered. On the fifteenth of June, Post & Co. were admitted defendants, and they filed an answer and cross-petition asking payment of an amount due them for spikes, angle-bars, and bolts, and on the nineteenth of July D. M. Richardson filed an answer and cross-petition, in which he asked payment of an amount due him for the construction of part of the road. On the sixth of January, 1885, Shoemaker and Ashburn filed an answer and crosspetition for a foreclosure of the mortgage executed to them as trustees, and on the fifth of February, Richardson demurred to the answer and cross-petition of the Cambria Iron Company. On the fifth of August the case was referred, on motion of Feike, Richardson, and Ashburn, and with the consent of all the other parties, to a master to take testimony and report upon the ques tions and issues raised by the pleadings. This report was filed December 10,

v.6s.c.-59

1885, and on the twenty-fourth of the same month the Cambria Iron Company presented a petition for the removal of the suit to the circuit court of the United States for the Southern district of Ohio, on the ground of prejudice and local influence. This petition set forth that the iron company was a citizen of Pennsylvania and all the other parties to the suit citizens of Ohio. The suit was entered in the circuit court, and on the eighth of February, 1886, Ashburn, one of the parties, moved that it be remanded (1) because it was not removable, and (2) because the petition was not filed in time. This motion was granted February 10th, and from an order to that effect the appeal was taken.

There is here but one suit, and that between Stephen Feike, the plaintiff, a citizen of Ohio, on one side, and the several defendants, one a citizen of Pennsylvania and the others citizens of Ohio, on the other side. It is conceded that the petition was filed too late for a removal under the act of 1875, • and that the iron company is not entitled to a removal on its separate petition under the third subdivision of section 639, Rev. St., unless because its crosspetition presents a separate controversy in the suit in which that company alone appears as plaintiff and all the other parties as defendant. It was decided at the present term in Jefferson v. Driver, 117 U. S. 272, S. C. ante, 729, that the provision for a removal of a separable controversy in the second subdivision of section 639 did not apply to removals under the third subdivision; but it is now argued that this cannot be so, because the original local prejudice act of March 2, 1867, (14 St. 558, c. 196,) was enacted as an amendment of the removal act of July 27, 1866, (14 St. 306, c. 288,) which had no other purpose than to authorize the removal of separable controversies. The law which governs this subject now is all found in section 639, and it was decided in U. S. v. Bowen, 100 U. S. 508, that "the Revised Statutes of the United States must be accepted as the law on the subjects which they embrace as it existed on the first of December, 1873. When their meaning is plain, the court cannot recur to the original statutes to see if errors were committed in revising them, but it may do so when necessary to construe doubtful language used in the revision."

There is nothing of doubtful meaning in this section. It is divided into three subdivisions, all relating to the removal of suits, but each providing for a separate class. The first embraces the cases provided for in section 12 of the judiciary act of 1789 (1 St. 79, c. 20;) the second for cases in which there is a separable controversy; and the third for cases affected by prejudice or local influence. Each subdivision is complete in itself, and in no way depends on any other. Each describes the particular class of suits to which it relates, and without reference to the others. The language of the third subdivision is: "When a suit is between a citizen of the state in which it is brought and a citizen of another state, it may be so removed on the petition of the latter," if he files with his petition "an affidavit that he has reason to believe, and does believe, that, from prejudice and local influence, he will not be able to obtain justice in such state court." This is the language, substantially, of the act of March 2, 1867, (14 St. 559,) as to which it was held in Sewing-machine Cases, 18 Wall. 553, Vannevar v. Bryant, 21 Wall. 41, and Myers v. Swann, 107 U. S. 547, S. C. 2 Sup. Ct. Rep. 685, that there could be no removal under that act if all the parties on one side of the suit were not citizens of different states from those on the other. In the last case It was added: "It is not enough that there be a separable controversy between parties having the necessary citizenship, nor that the principal controversy is between citizens of different states. If there are necessary parties on one side of the suit citizens of the same state with those on the other, the circuit court cannot take jurisdiction."

We see no reason for departing from the decisions which have thus been made, and the order remanding the suit is affirmed.

(117 U. S. 373)

YALE LOCK MANUF'G CO. D. SARGENT.
Filed March 29, 1886.

PATENT LAW-PERMUTATION LOCKS-VARYING ECCENTRICITY.

Letters patent No. 98,622, dated January 4, 1870, granted to James Sargent "for an improvement in permutation locks," are not infringed by the Yale Lock Manufacturing Company, the element of a "varying eccentricity" in the rollers of the locks not being present in the article manufactured by the Yale Company.

Appeal from the Circuit Court of the United States for the Southern District of New York.

Frederick H. Betts, for appellant. Geo. Ticknor Curtis and Edmund Wetmore, for appellee.

MATTHEWS, J. The bill in this case was filed by the appellee for an injunction to restrain the defendant below, the appellant, from an alleged infringement of letters patent No. 98,622, dated January 4, 1870, granted to James Sargent for an improvement in permutation locks, and for an account, etc. On final hearing on bill, answer, replication, and proofs there was a final decree for the complainant for an injunction, and for $400.75 damages, and costs. The defendant has appealed.

The question involved is the fact of infringment, and that, in its turn, de pends upon the proper construction of the complainant's patent. The specifications and claim of the patent, with the accompanying drawings, are as follows:

"Figure 1 is an elevation of the lock, with the back plate removed to show the interior; figure 2, a vertical cross-section of the same; figure 3, a diagram, showing the cam and the disconcerting eccentrics in perspective. Like letters of reference indicate corresponding parts in all the figures."

"Nature of the Invention. This lock is an improvement upon that of Linus Yale, in which an eccentric roller is combined with the cam for disconcerting the action upon tumblers. The invention consists in combining with the cam an arrangement of two or more eccentric rollers, of varying eccentricity, turning upon the same bearing, so that in revolving one or both may turn and alternate in action, thereby greatly increasing the difficulty of mapping out or locating the position of either."

"General Description. In the drawings A represents the case of the lock; B, the cylinder for holding the tumbler or wheels; C, the spindle; D, the cam; E, the dog which falls to release the bolt; and G, the bolt. These are the ordinary parts employed in combination locks, and may be arranged in any desired manner; hence they need no special description here.

"A single eccentric roller, H, pivoted at a to a suitable arm or bearing, and resting upon the cam, D, has been before employed, as already stated. Its object is to disconcert the action inside the lock, so that an expert lockpick or burglar cannot tell the position of the tumblers when operating upon the lock. It has been found by experiment, however, that such a devise is not proof against the skill of an expert lock-pick, for, by the use of a delicate instrument attached to the spindle outside, and by careful manipulation, the shape and position of this roller can be actually mapped out or ascertained, and the lock opened. To obviate this difficulty, as far as possible, I combine with this roller one or more rollers, H', pivoted to the same arm or bearing, and resting upon the periphery of the cam in the same manner; but all these rollers are made of varying eccentricity, and of different shape, and therefore when the cam is turned the several rollers strike at different positions, and when one touches the other may be removed from contact, thus alternating in action. They may also turn in different directions. By this means, owing to the different contact of the several rollers, the difficulty of mapping out

[graphic]

Fig.Z

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together, by breaking the continuity of rotation and movement and contact. I disclaim the employment of a single eccentric; but what I claim as my invention, and desire to secure by letters patent, is the arrangement of two or more rollers, H, H', of varying eccentricity, when combined with the cam, in the manner and for the purpose specified."

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