any provision that both plaintiffs may unite in one suit in a State of which either of them is a citizen."

Referring to the language of section 11 of the judiciary act of 1789, giving jurisdiction to the Circuit Courts, "where the suit is between a citizen of the State where the suit is brought and a citizen of another State," the following from the opinion of Chief Justice Marshall in Strawbridge v. Curtiss, 3 Cranch, 267, was quoted: "The court understands these expressions to mean that each distinct interest should be represented by persons, all of whom are entitled to sue, or may be sued, in the Federal courts. That is, that where the interest is joint, each of the persons concerned in that interest must be competent to sue, or liable to be sued, in those courts," which construction it was said has been adhered to from that day to this, notwithstanding the statute has been reënacted and recast several times since that decision. New Orleans v. Winter, 1 Wheat. 91; Coal Company v. Blatchford, 11 Wall. 172; The Sewing Machine Companies, 18 Wall. 553, and Peninsular Iron Company v. Stone, 121 U. S. 631, were cited in reiteration of the rule that "if there are several co-plaintiffs, the intention of the act is that each plaintiff must be competent to sue, and if there are several co-defendants, each defendant must be liable to be sued, or the jurisdiction cannot be entertained." And the rule was held applicable under the act of 1887, especially in view of the fact that that act was mainly designed to restrict the jurisdiction of the Circuit Courts.

But if these citizens of Missouri and Arkansas had sued the defendant, a citizen of Texas, in the Circuit Court of the United States for the district of his residence in Texas, we perceive no reason why that court would not have had jurisdiction.

And this would be so if that defendant had sued those plaintiffs in his district in Texas if he there obtained service of process upon them.

In McCormick Harvesting Machine Company v. Walthers, 134 U. S. 41, 44, we said: "The judiciary act of 1789 provided VOL. OXCIX-17

that no civil suit should be brought before the Circuit or District Courts against an inhabitant of the United States by any original process in any other district than that whereof he was an inhabitant or in which he should be found at the time of serving the writ, 1 Stat. 79, c. 20, § 12, and the act of 1875, 18 Stat. 470, c. 137, § 1, contained a similar provision. This liability of the defendant to be sued in a district where he might be found at the time of serving process was omitted in the act of 1887, but he still remained liable to suit in the district of the residence of the plaintiff as well as in his own district; and as he could not be sued anywhere else, we held in Smith v. Lyon, 133 U. S. 315, that where there were two plaintiffs, citizens of different States, the defendant, being a citizen of another State, could not be sued in the State of either of the plaintiffs. Mr. Justice Miller points out, in delivering the opinion of the court, that the evident purpose of Congress in the act of 1887 was to restrict rather than enlarge the jurisdiction of the Circuit Court, 'while,' he says, 'at the same time a suit is permitted to be brought in any district where either plaintiff or defendant resides.' In that case plaintiff was a citizen of Nebraska and brought suit in the Circuit Court of the District of Nebraska against an Illinois corporation, service being made on defendant's managing agent in Nebraska, as provided by the state statute. Defendant answered and then on leave withdrew the answer and filed a plea to the jurisdiction. The plea was overruled, and thereupon defendant went to trial on the merits upon issue joined on that answer. It was held that the objection to the jurisdiction, if it could be urged at all, must be confined to want of power to entertain the suit outside of defendant's own district, and that it was without merit.

removal of cases of diverse

Thus in The Removal Cases,

Many decisions in respect of citizenship are to the same effect. 100 U. S. 457, the provision of the act of 1875 that as to suits "in which there shall be a controversy between citizens of different States,

either party may remove said suit

into the Circuit Court of the United States for the proper district," was construed to mean "that when the controversy about which a suit in the state court is brought is between citizens of one or more States on one side, and citizens of other States on the other side, either party to the controversy may remove the suit to the Circuit Court, without regard to the position they occupy in the pleadings as plaintiffs or defendants. For the purposes of a removal the matter in dispute may be ascertained, and according to the facts the parties to the suit arranged on opposite sides of that dispute. If in such an arrangement it appears that those on one side, being all citizens of different States from those on the other, desire a removal, the suit may be removed." Young v. Parker, 132 U. S. 267; Ballin v. Lehr, 24 Fed. Rep. 193; Pitkin County Mining Company v. Markell, 33 Fed. Rep. 386; Roberts v. Pacific & A. Railway & Nav. Co., 104 Fed. Rep. 377.

The contention in the present case seems to be that because defendant could not sue plaintiffs in the Circuit Court of New York, or that of Pennsylvania, therefore plaintiffs could not sue defendant in the Circuit Court for the Northern District of West Virginia. But this does not follow from the terms of the statute by which jurisdiction is conferred generally where plaintiffs are residents and citizens of States different from that of the residence and citizenship of defendant; and, moreover, defendant could, if it had a cause of action, have sued plaintiffs in the Circuit Court for the Northern District of West Virginia and proceeded with the action if they were served with process in such district. The clause vesting jurisdiction should not be confounded with the clause determining the particular courts in which the jurisdiction must be exercised. Judgment reversed and cause remanded to be proceeded in according to law.

COCHRAN AND THE FIDELITY AND DEPOSIT COM-
PANY v. MONTGOMERY COUNTY.
SAME v. SAME.

ERROR AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Nos. 37, 112. Argued November 2, 1905.-Decided Noveinber 27, 1905.

1. A citizen of Alabama brought suit in an Alabama state court against a citizen of Maryland and a citizen of Alabama, whereupon the Circuit Court for the Northern District of Alabama ordered the removal of the case on the petition of the citizen of Maryland alleging prejudice or local influence. A motion to remand was denied, and the case went to trial and judgment. That judgment was affirmed by the Circuit Court of Appeals and a writ of error from this court was thereupon prosecuted. Held: That as the jurisdiction of the Circuit Court as exercised was dependent entirely on diversity of citizenship, the judgment of the Circuit Court of Appeals was final and the writ of error could not be maintained. 2. But this court having granted the writ of certiorari in order to pass upon the question of the jurisdiction of the Circuit Court, held: (a) That the clause of the applicable statute treating of removals because of prejudice or local influence does not furnish a separate and independent ground of Federal jurisdiction and describes only a special case comprised in the preceding clauses.

(b) That those suits only can be removed of which the Circuit Courts are given original jurisdiction, and that the right of removal because of diversity of citizenship can only be exercised by a defendant who is a citizen, or by defendants who are citizens, of a State other than that in which the suit is pending.

(c) That as in the present case suit was brought in plaintiff's State against a citizen of the same State and a citizen of another State, it could not have been originally brought in the Circuit Court and the removal was improvidently granted.

(d) As the removal was had on the application of the non-resident defendant, the costs of this court and of the Circuit Court must be paid by that party.

THIS action was brought January 21, 1902, in the City Court of Montgomery, Alabama, by the. County of Montgomery, one of the counties of the State of Alabama, against John J. Cochran, a citizen of that county and State, and the Fidelity and Deposit Company of Maryland, a corporation

of the State of Maryland, Cochran being the treasurer of the plaintiff county and the Fidelity and Trust Company of Maryland being the sole surety on the official bond of said Cochran as such county treasurer, to recover damages for certain alleged breaches of said official bond. Cochran was charged with the conversion of amounts belonging to the general fund of the county and of amounts belonging to the road and bridge fund. Demurrers to the complaint were severally filed by defendants in the state court.

February 15, 1902, the Fidelity and Deposit Company presented to the District Judge of the United States for the Middle District of Alabama, holding the Circuit Court, its petition for the removal of the cause into the Circuit Court of the United States for that district, alleging, among other things, that the matter in dispute exceeded the sum of two thousand dollars, exclusive of interest and costs, and "that the said controversy is between citizens of different States, in that the plaintiff was at the time of the commencement of said suit, and still is, a citizen of the State of Alabama; and your petitioner, The Fidelity and Deposit Company of Maryland, was at the time of the commencement of said suit, and still is, a citizen of the State of Maryland, and of no other State, having its principal office in the city of Baltimore, in the State of Maryland, and that your petitioner desires to remove this suit, which is now pending and undetermined in said state court, before the trial thereof, into the Circuit Court of the United States, to be held in the Middle District of Alabama."

The petition then averred "that from prejudice or local influence in favor of the plaintiff, and adverse to this defendant, it will not be able to obtain justice in said court or in any other state court to which the defendant may, under the laws of this State, have the right to remove said cause, on account of said prejudice or local influence;" that the suit was against John J. Cochran, the treasurer of said county, and petitioner, a surety company and a surety on the official bond of said Cochran as such treasurer, to recover the sum of one hundred