Page:Federal Reporter, 1st Series, Volume 4.djvu/892

 878 FEOEBIL BEPOSTEB. �tempts to support the jurisdiction of this court under the sec- ond clause, contending that there is a controversy wholly between himself and the plaintiff. I understand the law to be that if, upon the whole record, the jurisdiction of the court ean be sustained, the cause will not be remanded for such a misconception in the petition. Osgood v. Chicago, etc., R. Co. 6 BisS. 330; Ruckman v. Ruckman, 1 Fed. Eep. 587." I have once, with the approval of the circuit justice, allowed such a petition to be amended in the circuit court in New Hampshire. It was a case which had been tried after its removal, and a verdict obtained, which, being set aside, the plaintiff discovered that the petition was detective in its allegations of citizenship. I did not feel at liberty to order the plaintiff to amend his own writ, but I did permit defend- ant to amend his petition. This rule is reciprocal ; for if the record shows, at any timei, that the suit does not really and sùbstantially involve a controversy properly within the juris- diction, the court is required to remand it. St. 1875, § 5; 18 St. 472. �Is there a controversy in this suit wholly between the plaintiff and the defendant Thompson? I think not. The suit is to foreclose the equity of five shares in certain lands mortgaged by one person, at one time, for a single debt. When the plaintiff supposed that Thompson still owned ail the shares, and brought suit against him, it was a controversy wholly between them. If the plaintiff had not chosen to bring in Clarke, or if Clarke had disclaimeà or had made default, and a final decree had been made for or against him, the controversy might once more be between these parties only. But it is the right of the plaintiff to have a single fore- closure of his single debt and mortgage. Ile is not bound to undergo the expense of two suits, upon what is to him a sin- gle cause of action. Clarke, I suppose, bas a similar right to insist that a single suit shall settle his position relatively to the defendant Thompson. Thompson has no right to say that the controversy concerns only his four shares, if either the plaintiff or Clarke wish the controversy as to the wholû five to be disposed of. ����