thfug, namelYI:to'pay a sum of, money, and at . '. '. . that, under the eircumstanoosof this case, no errQr-w-as committed in requiring other than the indictment itSeti',that the court in Missouri had cognizance of the offense alleged, or in dfgeharging the prisoner,upon the failure of the government to comply 'With that reqUirement. Therefore the judgment is affirmed. lace.
STATE OF INDIANA v. TOLLESTON CLUB OF CHICAGO et at.
(Circuit Court. 1.
Indiana. November 22,18.92) No. 8,717.
R1!:XOVAL OF CAUSES-DIVERSE
,.' A s1ilt'1:lY a'stl\te in one of Its own courts against a citizen of another state I. to a federal circuit court OD the grollDd ()f diverse citizenparties. .... . ' .'
2. BAxllI:';"REMAND BY COuBTOJ' ITS OWN MOTION·
.'I'is the duty ofa federal 'court:to remand. of its own motion. whenever face of the recorda want of jurisdiction, eitheroOhe parties or subject'platter, is affirmatlvll,ly shown. . .
S. FEDERAl> .Cou;a'j.'S-JuR1sni£TIONBY CONSENT.
Neither silence nor pmjitive consent of the parties can confer jurisdiction upon a federal court whel1llueh jurisdiction is denied by statute.
At Law. state of Indiana against the Tolleston Club of Chicago.llod.others,commenced in a state court, and removed to this court by defendant. Remanded, for want of jurisdiction. A. G.Smith,for plaintiff. J. W. Y for defendants.
BAKER; District Judge. This action was brought in the circuit 'court of Lakedmnty; Ind., by the state of Indiana 'ilgainst the Tolleston Club of Ill., and 19 others, to quiet the title to, and recover the pO$session of, numerous parcels of land in said county of Lake, alleged to belong to the state, and which tne defendants were alleged to claim as owners without right, thereby casting a cloud on the title of plaintiff. At the proper time, at the September term of the court for 1891, the Tolleston Club of Chicago presented its veri.tied petition and bond for the removal of the cause of action against it into the United States circuit courtfor the district of Indiana .. The petition set forth as gronnd of removal the diverse citizenship of the plaintiff and said defendant, and alleged that the controversy between the state and itself was a separate and separable controversy, in which the plaintiff and the petitioQer,were alone interested. No motion has been made to remand, and the' question for decision is whether the court of its OWl:) motion ought to remand the cause to the state court. Wherever on the face of the record a clear want of jurisdiction, either of the parties or of the subject-matter, is affirmatively shown, it is the duty of the court to remand of its own motion. Consent of the parties cannot confer jurisdiction, except in cases where the law has au-
CHESTER WATER CO. ,. HOLLY MANUF'G CO.
thorized the court. to exercise jurisdiction. In the case at bar this court has no jUrisdiction, except upon the. ground of diverse citizenship. Whether such diverse citizenship exists hinges on the question, is the state of Indiana a citizen of the state of Indiana, within the meaning of the removal act, for the purpose of giving this court jurisdiction? This question must be answered in the negative. A suit instituted by a state in one of its own courts against a citizen of another state is not removable into a circuit court of the United States on the ground of a diversity of the parties. Stone v. South Carolina, 117 U. S. of the 430, 6 Sup. Ct. Rep. 799; Ferguson v. Ross, 38 Fed.. Rep. 161; State of Alabama v. Wolffe, 18 Fed. Rep. 836. There is no federal question presented by the record in this case, and in that respect it differs from the case of Railroad Co. v. Mississippi, 102 U. S. 135. The want of jurisdiction is affirmatively shown on the face of the record. In such case neither silence nor positive consent will confer jurisdiction, because the parties osnnot confer on the court a jurisdiction denied to it by the statute. If this court should try the case, it would be the the appellate court to which it might be taken to reverse and remand,· with instructions to this court to return it to the state court. Graves v. Corbin, 132 U. S. 571,10 Sup. Ct. Rep. 196. This court will not permit a cause of action of which it has no jurisdiction to be tried before it, even if the parties should stipulate in writing to abide its judgment. Let the cause be remanded,at the costs of the defendant.
NEW CHESTER WATER CO. et a1. v. HOLLY MANUF'G CO. tit
(Ci,rcuit Court of Appeals, Third Circuit. November 14, 1892.) No.7.
1. FEDERAL COtrnTs-JURI8DICTION-CITIZENSHIP-PARTIES.
A firm owning substantially all the stock of a water company purchased engines for the same, and subsequently suffered judgment by confession for II balance due thereon. In the mean time they sold and transferred all the atock toothers, and conveyed the land on which the engines were located to tbe water company. A suit was SUbsequently brought by the seller of the engines to assert a vendor's lien thereon, and by an amendment the members of "tbe firm were made parties plaintiff. Held that, as no relief was sought against them. and as they had parted with all their interest, they were merely formal parties, and it was not necessary to make them parties defendant, and the fact that they were citizens of the same state with com· plainants did not oust the jurisdiction. 48 Fed. Rep. 879, affirmed.
2. EQUITy-PARTIEs-JURIsDICTION OF FEDERAL COURTS. In a suit to assert a vendor's lien against specific maehinery of a corporation it is not necessary to make the trustee of its mortgage bondholders II party defendant. when substantially all the bondholders tbemselves are before th.e court. The trustee beinjt without the territorial jurisdiction of the court" .its presence can be dispensed with under equity rule 47. even though it might otherwise be deemed a proper or necessary party. 48 Fed Rep. 879, affirmed.
.. VElIlDOR'S LIEN-NOTICE-CORPORATIONS,
A firm which owned all the stock of a water company, and whose employes were its officers, purchased pumping engines, contracting that the same should be &ubject to a lien for the price, and placed them in thE> com· pll.ny'" works.. After erection, the en/l:ines: remained in the exclusive charge and management of the Beller's agent.. lleanwhile the firm disposed of an