casé, irrespective of the subject-matter of the sale; which fully answers a suggestion made in the present case, that the doctrine of conditional sales is not applicable to the sale and delivery of property, like that under consideration, which perishes in the using. Were there occasion to seek confirmation of our position as to conditional sales from the courts of other jurisdictions, much more ample support could now be found than existed when Lewis v. McCabe was decided. We have, however, observed a tendency in the States whose courts have held conditional sales valid against the claims of the creditors of the conditional vendee and of purchasers from him, to subject the matter to statutory regulations. Alabama, Iowa, Maine, Missouri, Kentucky, New Hampshire, Nebraska, New York, North Carolina, Ohio, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin, and some other States and several territories, require under circumstances somewhat variant, that the contracts be in writing, and recorded. Massachusetts, in the case of conditional sales of household effects of furniture, now requires a written contract, but it need not be recorded. The States of California, Delaware, Kansas, Michigan, Nevada, New Jersey, Oregon, Rhode Island, and Tennessee, and the territories of Montana, New Mexico, Utah, Washington, and Wyoming, require neither writing nor recording.

It is of interest to note that Carpenter, J., who dissented in the case of Lewis v. McCabe also dissents here, delivering an exhaustive opinion, claiming that the case disclosed a sale and delivery, with the agreement that, as between vendor and vendee, the title was to remain in the seller, for the sole purpose of securing payment of the purchase money; that in principle it could not be distinguished from a sale and delivery, accompanied with a retransfer of the title, without possession, as security merely; in legal effect a mortgage; an attempt to create by parol a valid lien on personal property, while ownership for all other purposes, and the possession, remain with the lienor; that this was contrary to the policy of Connecticut law, by which a valid secret mortgage, without possession, has always, as we have before seen, been treated as of no validity as against creditors of the mortgagor. In this dissenting opinion Beardsley, J., who was not upon the court when Lewis v. McCabe was decided, joined. So that the majority opinion although, in effect, only a reaffirmance of Lewis v. McCabe, was upheld, in a divided court, by the authority of three judges, against two.

WHEN MAY A STRANGER INTERVENE IN A SUIT IN EQUITY.

1. Who is a Stranger.

2. When may he Intervene. 3. How may he Intervene.

a. By Motion.

b. By Petition.

c. By Ancillary Original Bill.

4. When may he be Heard upon the Original Issue.

1. Who is a Stranger.—A stranger is one who is not interested in the subject-matter or object of the suit. That is, he is not interested in the controversy pending between the parties. He cannot, ordinarily, take any part in the proceedings. Though not interested (directly) in the controversy, the stranger may be indirectly affected by its results. For example-a stranger may own the thing involved in the controversy, and if it has been taken into the possession of the court may intervene to secure it. In such case, he will come in upon a claim of his own distinct from the claim involved in the suit frequently adversely to both plaintiff and defendant. His claim is not by, through or in unison with either of theirs. For this reason an intervenor if he is, strictly speaking, a stranger, can never be a party in the technical sense of the term, and cannot under ordinary circumstances be heard upon the In this respect intervening principal issue. strangers differ radically from intervenors interested in the subject-matter. The latter claim by or in unison with the parties and may be ranged upon one side or the other of the pending issue. They come in really as plaintiffs or defendants. Owing to the complexity of issues in equity, it is often quite difficult to distinguish between those who are really entire strangers and those whose claims are slightly dependent upon or are inseparably connected with the principal issue Suits for enforcement of a security of administration of a trust fund are really proceedings partly in rem, and all persons having liens upon the property being interested in the object of the suit, are proper parties, in the technical sense (though not always essential) and may contest each others claims, and be heard upon the principal issue.

2. When may he Intervene.-The circumstances under which a stranger may intervene are very numerous. As a general rule, it

may be said that a stranger owning the specific thing involved in the controversy, if it has been taken into the possession of the court, may intervene to secure it,1 or to obtain the proceeds of it, if it has been converted into money.2 Parties claiming a part or the whole of a fund in custodia legis may intervene to secure the same, and may do this, under circumstances, even after a decree of distribution has been made. They are not necessarily strangers, but may be interested in the object or subject-matter of the suit. Prior mortgagees may intervene

to

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3

secure the mortgaged property when seized by the court as against subsequent incumbrancers and creditors.5 So may all parties having liens upon the property liable to be lost by the suit, as, for example, judgment creditors whose executions have been returned nulla bona, or who have otherwise acquired liens. They also are not strangers in the strict sense. In some States general creditors, by virtue of special statutes, may establish liens by filing bills or intervening in the suits of third parties. In innumerable cases, parties holding claims against railroad companies for labor, materials, legal services, etc., essential to the running of the road, furnished within a reasonable time prior to the appointment of a receiver, have been allowed to intervene by petition or otherwise) and secure the payment of their claims out of the net earnings of the road

8

1 Dan. Ch. Pr. (6th ed.) p. 921; Calvert's Parties in Equity, p. 126; Copeland v. Mape, 2 Ball & B. 66; Martin v. Willis, 1 Fowl. Ex. Pr. (2d ed.) 160; Watson v. Sutherland, 5 Wall. 74.

2 Fosdick v. Schall, 99 U. S. 235 and Fosdick v. Car Co., Ib. 256; Krippendorf v. Hyde, 110 Ib. 276.

3 Duval v. The Farmers' Bank, 4 Gill & J. (Md.) 282; Pelham v. Newcastle, 3 Swans. 290.

4 Alexander v. Gillespie, 3 Russ. 130, upon petition; Williams v. Gibbes, 17 How. 239, by original bill. See post as to intervention by original bill.

5 Pennock v. Coe, 23 How. 117; Bowles v. Parsons, Dick. 142; Cooper v. Thornton, Ib. 72; First Nat. Bank v. Jasper County Bank, 32 N. W. Rep. (Iowa), 400, original action in chancery.

6 Ketchum v. St. Louis, 101 U. S. 306; County of Yuba v. Adams, 7 Cal. 35; Carter v. City of New Orleans, 19 Fed. Rep. 659; Hayes v. Miles, 9 Gill & J. (Md.) 193.

7 Am. Bridge Co. v. Heidelback, 94 U. S. 798; Railroad Co. v. Howard, 7 Wall. 392; Meyers v. Fenn, 5 Ib. 205; Cook v. Mancius, 5 Johns. Ch. (N. Y.) 89. This was an intervening original bill: Blair v. Puryear, 87 N. C. 101, a subsequent judgment creditor may claim a subsequent lien.

8 Market Bank v. Hofheimer, 23 Fed. Rep. 13; Wallace's Adm'r. v. Freakle, 27 Gratt. (Va.) 479.

9

accruing during the receivership, upon the ground that they have equitable liens thereon paramount to the mortgages. A stranger, whose title deeds have been delivered to a master under an order made in a suit to which he is not a party, may intervene and obtain an order that they shall be delivered to him.10 Strangers whose lands have been sequestered or taken by a receiver may intervene and obtain leave to bring an action of ejectment or other suit for the possession of the same," and it has been held that a stranger dispossessed of land by an officer under a writ of possession issued in a suit between third parties may intervene and obtain a writ of restitution to restore himself to possession.12 A stranger cannot intervene

in equity if he have an adequate remedy at law. He will not ordinarily be allowed to intervene unless the property has been taken, actually or constructively, into the possession of the court. Property is always in possession of the court when it has been taken by an officer, having a precept specifically commanding him to seize it. In such cases the officer cannot be sued for taking the property, without leave of the court under whose orders he acted.13 When the officer has general instructions merely to seize property of the defendant without any specific property being designated and he seizes property of a stranger, the seizure is his individual act and the stranger can sue the officer in trespass, trover or replevin,1 subject to the exception that actions of replevin cannot be maintained in the State courts against officers in the

9 Blair v. St. Louis, 22 Fed. Rep. 471, six mos prior; William's Adm'r. v. Wash. City Vir., Mid. & G. S. R. Co. 33 Gratt. (Va.) 624; Turner v. I., B. & W. Ry. Co., 8 Biss. 315; Atkins v. Petersburg R. Co., 3 Hughes, 307, parties who loaned money for operating expenses, under special circumstances, 22 mos. prior; Taylor v. Phila. & Reading R. Co., 7 Fed. Rep. 377, five mos.; Hale v. Frost, 99 U. S. 389; Douglass v. Cline, 12 Bush, (Ky.) 608, 8 mos.; Miltenberger v. Logansport, 106 U. S. 286, upon receiver's petition; Union Trust Co. v. Souther, 107 Ib. 591; Barnham v. Bowen, 111 Ib. 777; Cowdrey v. Galveston R. R. Co., 93 Ib. 352.

10 Marriott v. White, 1 Sim. & Stu. 17.

11 Angel v. Smith, 9 Ves. 335; James v. Dore, Dick. 788; and they cannot bring suits without such leave. 12 McChord's Heirs v. McClintock, 5 Litt. (Ky.) 305. 13 Barton v. Barbour, 104 U. S. 126; Searle v. Choate, 25 Ch. D. 723; Crone v. O'Dell, 2 Hog. Ir. Rolls Ct., 144; Angell v. Smith, 9 Ves. 335.

14 Van Norden v. Morton, 99 U. S. 378; Bradley v. Holloway, 28 Mo. 150; Louthair v. Fitzer, 78 Ind. 449; Gass v. Williams, 46 Ib. 253.

United States courts and vice versa. 15 Trespass may be brought in a State court against an officer of a United States court who seizes without specific directions a stranger's goods,16 but trespass is not an adequate remedy in cases where the property has a special value to the stranger. In such cases, and also in all cases where the officer acted under instructions to seize specific property, the stranger's proper remedy is by intervention,17 either by motion or petition in the original suit or by an intervening or ancillary original bill brought in the same court.

3. How may he Intervene. There are three ways in which a stranger may intervene viz: By motion, by petition and by ancillary original bill.

a. Intervention by Motion.-Those cases in which application may be made by motion are cases "for which no long statement of facts is required." 18 A motion differs from a petition in that it is made viva voce, while a petition is in writing. 19 A stranger cannot intervene without special leave of court and he must give notice of his motion before it will be heard,20 and the title under which he claims must be stated in the notice of the motion.21 "There does not appear to be any very distinct line between the cases in which" the applications "should be made by motion and those in which they should be made by petition." 22 In Copeland v. Mape,23 a stranger intervened by motion, supported by affidavit, to have goods belonging to him restored which had been seized. The court referred the question of ownership to a master and upon return of his report ordered the goods restored to the stranger.24 This case seems very much like Marriott v. White,25 where

15 Freeman v. Howe, 24 How. 450; Lammon v. Feusier, 111 U. S. 17,19, per Gray, J. This it is thought might produce a clashing between the two courts. 16 Buck v. Colbath, 3 Wall. 334; Day v. Gallup, 2 Ib. 97.

17 Watson v. Sutherland, 5 Wall. 74; Krippendorf v. Hyde, 110 U. S. 276.

18 Calvert's Parties in Equity, p. 127; 2 Dan. Ch. P. & Pr. 1587; Jones v. Roberts, 12 Sim. 189.

19 2 Dan. Ch. Pl. & Pr. 1587.

20 Calvert's Parties in Equity pp. 125, 126; Lord Langdale in Williams v. Douglass, 5 Beav. 85.

the application was by petition.26 Where the application calls for an order in the nature of a formal decree it is said the application should be by petition.27

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b. Intervention by Petition.-A petition is the proper method of intervening in cases. where a more formal statement of facts is required than in a motion, 28 and new parties are not required 29 to be made, though if the petition were calculated to unduly protract the trial of the principal issue it might not be admitted in all cases. In Marriott v. White, the owner of title deeds which had been delivered to a master by order of the court in a suit between other parties intervened by petition and obtained an order to have them delivered to himself. In innumerable cases parties have intervened by petition to obtain property in custodia legis belonging to them or its proceeds or to obtain a share of a fund in chancery or to establish or secure a lien upon property in the custody of the court. 82

c. Intervention by Ancillary Original Bill. -An original bill, in order to be equivalent to an intervening petition, must be brought in the same court with the original suit, and is called in the United States courts an "ancillary" or dependent bill in equity. 26 See post.

27 2 Dan. Ch. Pl. & Pr. 1587.

88

28 Calvert's Parties in Equity, p. 127; 2 Dan. Ch. Pl. & Pr. 1587.

29 Hayes v. Miles, 9 Gill & J. (Md.) 193, 198; Gumbel v. Pitkin; 124 U. S. 131, 147. In this latter case Justice Matthews in sustaining a stranger's intervewing petition, said: "The court had before it all the parties together with the property. The remedy was plain, simple and effectual."

80 Per Archer, J., in Hayes v. Miles, 9 Gill & J. (Md.) 193, 198. How far this exception extends it is difficult to tell. Justice Archer goes on to say, "But we think it may be stated as a general rule that a petition is the proper mode of affecting a fund in equity where no other parties are to be brought in to litigate the application, than such as are, or ought to have been parties to the original bill."

81 1 Sim. & Stu. 17.

32 Fosdick v. Schall, 99 U. S. 235; Fosdick v. Car. Co., Ib. 256; Cowdrey v. Galveston R. Co., 93 lb. 352; Hale v. Frost 99 Ib. 389; Union Trust Co. v. Souther, 107 lb. 591; Burnham v. Bowen, 111 Ib. 776; Atkins v. Petersburg R. Co. 3 Hughes, 307; Turner v. I. B. & W. Ry. Co., 8 Biss. 315; Blair v. St. Louis, 22 Fed. Rep. 471; Wallace's Admr. v. Freakle, 27 Gratt. (Va.) 479; William's Admr. v. Wash. City, Vir. Mid. & Gt. South. R. Co., 33 Ib. 624; Duval v. Farmers' Bank, 4 Gill & J. (Md.) 282; County of Yuba v. Adams, 7 Cal. 35; Alexander v. Gillespie, 3 Russ. 130; Hayes v. Miles, 9 Gill & J. (Md.) 193; Gumbel v. Pitkin, 124 U. S. 131.

38 Krippendorf v. Hyde, 110 U. S. 276, 285. In the

An intervening or ancillary original bill is, ordinarily, the proper remedy where new parties are to be made. Numerous instances

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of them might be given. It has been held that intervention must be by an original bill (or action) and cannot be by petition.& There are also authorities that intervention cannot be by an original bill but must be by. petition in the original suit. By the weight of authorities intervention may be either by petition or by original bill according to circumstances.

4. When may he be heard upon the Principal Issue. It is only in very exceptional cases that one, who is really a stranger, can be heard upon the principal issue. In case of fraud or collusion between the original parties operating to the injury of the stranger, the latter may be heard upon the principal issue. Such is the case where the plaintiff sues upon a fictitious claim and the defendant fraudulently admits it for the purpose of giving the plaintiff a prior fraudulent lien and thus securing his property from creditors. Many instances might be given of interventions in such cases in suits at law where from the necessity of the case the in tervenors were heard upon the principal issue and were allowed to show the fraud or collusion between the parties. 37 In several cases creditors have brought suits in equity and have been allowed to show fraud in prior attachment suits at law and to have their own claims established as prior liens.38 In suits in nature of proceedings in rem persons hav

United States court the ancillary bill may be maintained regardless of the citizenship of the parties, because it is equivalent really to an intervening petition in the principal suit.

34 Kripendorf v. Hyde, 110 U. S. 276; Pennock v. Coe, 23 How. 117; Watson v. Sutherland, 5 Wall. 74; First Nat. Bank v. Jasper County Bank, 32 N. W. Rep. (Iowa) 400, an equitable action.

35 Mann. v. Flower, 26 Minn. 469. See Hale v. Chandler, 3 Mich. 531.

36 Smith v. Am. Life Ins. Co., Charke's Ch. (N. Y.) 307; Platto v. Denter, 22 Wis. 482, 485; Endter v. Lennon, 46 Ib. 299.

37 Buckman v. Buckman, 4 N. H. 319; Blaisdell v. Ladd, 14 N. H. 129; Swift v. Crocker, 21 Pick. (Mass.) 241; Davis v. Eppinger, 18 Cal. 378; Speyer v. Ihmels, 21 Cal. 281; M'Cluny v. Jackson, 6 Gratt. (Va.) 96; Smith v. Gettinger, 3 Kelly (Ga.), 140; Blair v. Puryear, 87 N. C. 101. In several of these cases the interventions rested upon express statutes and in others upon general principles. The right to intervene was denied in Lewis v. Harwood, 28 Minn. 428.

Gist v. Davis, 2 Hill:(S. Car. Ch.), 335; Heyneman v. Danenberg 6 Cal. 376.

ing legal or equitable liens upon the property, are persons interested in the subjectmatter or object of the suit and may be heard upon the validity and priority of all other claims. WILLIAM WEBSTER. Boston, Mass.

REMOVAL OF CAUSES ON ACCOUNT OF PREJUDICE OR LOCAL INFLUENCE.

The present law upon the subject of the removal of causes into the federal courts on account of prejudice or local influence is to be found in the act of congress of August 13th, 1888.1 Since the decision made by Justice Harlan, of the United States Supreme Court, there has been some doubt as to the meaning of the law. Judge Harlan decided that no cause was removable on account of prejudice or local influence unless a sum of more than $2,000 was involved. Afterward Judge Maxwell of Nebraska, in the CENTRAL LAW JOURNAL,3 in an article upon the subject, coincided with Justice Harlan. Judge Harlan wrote the Malone opinion before the act of congress of August 13, 1888, which act, in its title, states that it is one to correct the enrollment of the act of March 3, 1887. The change of phraseology and arrangement gives new ideas as to the meaning of the law, and it may be justly claimed that the Malone case is not supported by the lawyers and judges who have examined into the meaning of the law as it now stands. Before Judge Harlan's decision there were three theories: One, that a cause was not removable unless more than $2,000 were involved; another, that it was not removable unless $500 and upwards were involved; another theory was that whereever the citizenship of the parties, and the prejudice or local influence were made properly to appear, that the amount involved was immaterial. For that reason the middle ground seemed to prevail because many argued that it would seem inappropriate that actions involving very small amounts should be taken into the Federal court, but at the same time, if the prejudice or local influence was made to appear that it seemed just that the case should be removed. For that reason there appeared to be very generally an opinion among lawyers that the amount in controversy should be $500 or upwards.

During the month of October seven cases were presented to Judge Foster, holding the circuit court for the district of Kansas, and he permitted the removal in each of the cases, although they only involved $1,000 each. The cases cited in favor of the proposition of removal were: 1st. The opinion of Judge Jackson, who says con

4

1 See full text of act, 28 Cent. L. J. 113. 2 Malone v. R. R. Co., 35 Fed. Rep. 625. 8 Vol. 28, 109.

Whelan v. R. R. Co., 35 Fed. Rep. 849.

་

The next case is Huskins v. R. R. Co. It was on a motion to remand. Judge Key, upon page 507, says: "The fourth clause of section 2, act of March 3, 1887, is wide-reaching in its changes of the law previously existing. It enlarges its scope in almost every direction but one. It does not allow the plaintiff to remove his suit. It embraces all controversies between citizens of different States without regard to amount. It permits or authorizes removal, though some of the defendants may be residents, or citizens rather, of the State in which the plaintiff resides. Any defendant, being a non-resident, may remove the suit. It extends to all controversies, without regard to amount; to all suits, whether they can be estimated in dollars and cents.'"

The last paragraph being cited as from Speer on Removal of Causes, page 62. So that up to this point we have Judge Jackson, Judge Welker, Judge Key and Judge Speer, and the decisions were all made before the act of August 13, 1888.

After the last mentioned act was passed Judge Shiras of Iowa delivered the opinion of McDermott v. Ry. Co., in which he reviews the decision of Judge Harlan and dissents from him in a long and well reasoned opinion. Judge Shiras has in two other cases rendered the same opinion, so that, taken with Judge Foster, of the circuit court, there are six judges who have decided that question, and it appears that until the United States Supreme Court has finally settled the meaning of the law, that the principle must be conceded as established that no amount is necessary in such cases to give the United States circuit court jurisdiction. Judge Harlan is the only judge to the contrary.

As regards the practical side of removals under the act, difficulties arise, principal among which is that it must be made to appear to the judge of the federal court that the applicant will not be able to obtain justice in the State court where the suit is pending, or in any other State to which the defendant might, under the laws of the State, have the right to remove the cause. In a State like Kansas, in which there are remote counties with a scanty population, it is a very difficult thing to say that a case in the eastern part of the State, 400 miles distant, could not be tried anywhere in the State without being affected by prejudice or local influence. Supposing that a case was pending in the northeastern county of Kansas, it would be within the range of possibility, for the attorney

5 37 Fed. Rep. 504. 638 Fed. Rep. 529.

who resisted the application, to go into the extreme southwestern county and take the affidavit of every voter in the county, and each would say they had never heard of the case, or of the parties litigant, and that it was absolutely impossible that there should be any prejudice or local influence against the applicant in that county. Tested by such an experiment as this it would be possible to defeat every application perhaps that might be made for removal under that law. If the line is to be drawn strictly, the act of congress giving the right of removal is of no value whatever. In reading the cases that are reported we have very feeble insight into the facts concerning the removals. In the seven cases that were removed by Judge Foster in the Kansas federal court, these difficulties had been considered and an application setting forth the difficulties and the facts constituting the prejudice and local influence had been presented and the State court refused to give a change of venue, consequently there seemed to be no county in the State to which they could be removed under the State law. The State law of Kansas concerning change of venue is as follows: "In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending; or when the judge is interested, or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may, on application of either party, change the place of trial to some court where such objection does not exist."

It seems to be the only safe way if a person designs to remove to the federal court to make an application for a change of venue in the State court, and if the judge of the State court grants it and the conditions are fair there will be no need of a removal to the federal court. The difficulty, however, in the application of such a rule would be that the person hardly knows where he stands in regard to the prejudice or local influence until about the time that the case is called for trial. Then when his motion for a change of venue is overruled he must immediately make application to the United States circuit court, which, if not in session, leaves him remediless because the application must be made to the court and not to the judge. In addition to this the rule has been established in the eighth [our] circuit that the applicant for the removal of a cause must give the other party ample notice, so they can appear and resist the application with affidavits, depositions, or other evidence, as they see fit. This delay means nearly a month, because the opposite party must have time to prepare rebutting affidavits and present himself before the court operates as an additional burden. In the meantime the case may be called in the State court and parties forced to trial, so that taking it altogether it is a very difficult and serious matter to remove a case on account of prejudice or local influence, and the act should be simplified. In addition to that,