Page:Federal Reporter, 1st Series, Volume 7.djvu/18

 6 FEDERAL REPOSTUB., �strictly considered, no authoritative case againgt it, unless it be the majority opinion in the same case, and it is doubtful if that can be aaid to be so. But, independently, my own judgment is that the act of oongress does not apply to a case like this, and that, with deference for all who think otherwise, mus)t control me until the supreme court decides the point. �It is not necessary to determine whether the act of 1875 bas repealed the act of 1866, (Kev. St. § 639, subsec. 2,) be- cause I am of opinion that this case is clearly not removable under that act. As I understand the effect of the recent de- cisions, the distinction between the two acts amounts to this : If the case be one that could have been removed as to the separable controversy, under the act of 1866, the whole case, and not the separable controversy only, may now be removed under the act of 1875. But where the controversy is inseparable as between citizens of different states from that between citizens of the same state, as this case is, there can be no removal under either act. �It occurred to me that this petition for removal contained an allegation of a fraudulent conspiracy to defeat the juris- diction of this court over this case by joining parties not proper to be joined, but the allegation amounts to nothing more than a negation of the plaintiff 's cause of action by say- ing that she has, with the defendants, concocted this suit to avoid the deed of trust. If that be so, the suit must fail against both mortgagor and mortgagee ; but it fumishes no basis for jurisdiction in this court. If she fails to prove no- tice of her equities against the mortgagee, she may fail of any relief as to him, while establishing her case against the mortgagors ; but that does not render the controversy separ- able in the sense of these statutes. �Eemand the cause. �Note. Consult Dillon, Remoral Causes, (2d Ed.) passim ; 20 Amer. Law Keg. (N. S.) 24, 31 ; Dormitzer v. Bridge Co. 6 Fed. Rbp. 217; Broad- way Nat. Bank v. Adams, 12 Cent. Law J. 356 ; Bybee v. Hawkett, 5 Fed. Rbp. 1 ; 8. O. 13 Chicago Legal News, 152 ; Rester v. Kernoehan, 13 Chicago Legal News, 225 ; Smith v. MoKay, 4 Fed. Rbp. 353 ; MerdianW Nat. Bank V. Thompson, la.. 876; Shumway v-^'HaHroad Co. Id. 385; Buller. Hyde, 3 Fed. Rep. 330 ; Bailey v. N. Y. Bank, 2 Fed. Rbp. 14 ; Whiiehouse t. In$. ��� �