Page:Federal Reporter, 1st Series, Volume 1.djvu/553

 BUaKB V. FLOOD. 64:5 �Virginia Mining Company, and the Pacifio Wood, Lumber & Flume Company, and that the moneys sought to be re- covered are moneys paid by the first-named corporation to the latter upon the contracta set eut, and paid by the latter in divideuds to the said defendants Flood, Mackey and Fair, and to said O'Brien. The primary and immediate parties to the transaction alleged are the two corporations. The rights and liabilities of the complainant and the other defendants are secondary and derivative, �The provision of the Kevised Statutes under whioh the removal is had, so far as applicable, is, when a suit is by a citizen of the state wherein it isbrought "against a citizen of the same and a citizen of another state, it may be so removed as against said citizen of another state upon the petition of Buch defendant * * * if, so far as it relates to him, it of the controversy, sofar as it concerns him, withont the pres- ence of the other defendants, as parties in the case." �Upon the allegations of this biU can there be a final deter- mination of the controversy, so far as concerns Mackey and Fair, without the presence of the Pacifio Wood, Lumber & Flume Company, or without the presence of Flood? In my judgment there cannot. I do notsee how a ^waZ aceount can be taken between the Consolidated Virginia Mining Com- pany and the Pacific Wood, Lumber & Flume Company as to the profits on the contracts between them set eut, and then between the latter corporation as to the amount of said moneys paid by it to Flood, O'Brien, Mackey aud Fair, as copartners, without the presence as a party of either said corporation, or said Flood or O'Brien. Certainly none could be taken that would bind said corporation, or Flood, or O'Brien, without their presence, and, therefore, none that could be final as to Mackey and Fair. If one suit can be Buccessfully prosecuted against Mackey and Fair alone, and another against Flood and the Pacific Wood, Lumber & Flume Company alone, then one can be prosecuted against each of said parties alone, aud there might be in different �v.l.no.8— 35 ��� �
 * * * ia & Bnit in ■vrhich ihere can he a, final determination