to the removal of the whole suit, containing issues, some of which are solely and exclusively between citizens of the same state, with the constitutional provision that the judicial power of the United States shall extend to "controversies between citizens of different states." At any rate, since that decision we are forbidden to question that, where a suit pending in the state court unites two separable controversies, one distinctly with a citizen of plaintiff's own state, and the other with a citizen of a different state, the cause may be removed.

In discussing the matter of separable issues, or in ascertaining whether such a separable controversy as is contemplated in the act of 1875 is presented by the intervenor, it should be kept in mind that Young asserts his ownership of the stock, etc., his right to the exclusive management of the plantation business, his right to enjoy one-half of the revenues thereof for 10 years, and his right to have all of his demands and claims made executory against all parties to the suit. This summary of his demands appears to me to forbid the idea that any court could allow or deny to him any of them without, at the same time, passing on controversies which, before his appearance in the suit, existed solely between the plaintiff and defendant, or on matters alleged and denied by and between citizens of the same state, and which are inseparably blended with all the items of the intervenor's demand, and to the allowance of which all the parties are necessary parties.

In the case of Iowa Homestead Co. v. Des Moines Nav. & R. Co. 8 FED. REP. 97, the complainant sued for a sum of money in a state court and claimed a special lien on certain lands. Litchfield, a citizen of New York, intervened in the suit to assert his ownership of the land, and to dispute the special lien, and caused the suit to be removed. Mr. Justice MILLER, on hearing the motion to remand, said, if complainant saw fit to dismiss his claim for the special lien on the land, the suit would be remanded. The complainant dismissed the claim to the special lien, but after its dismissal the court, having improvidently allowed Litchfield to file some other pleadings, had to pass upon a second motion to remand. The judges (MCCRARY and LOVE) of the Fifth circuit said, in considering the last motion to remand, that the first motion should have prevailed without any conditions whatever; that the issues presented by Litchfield did not warrant the removal; that the case was easily distinguished from the BarneyLatham Case.

In Bailey v. New York Sav. Bank, 2 FED. REP. 14, the plaintiff, a widow, sued the bank for $25,000, alleged to be a deposit made for her account by her deceased husband. The bank caused Lewis Bailey, executor of Bailey, deceased, a citizen of Connecticut, to be made a party, and the bank, while laying no claim to the money, refused to pay it over to any one except under an order of court. The state court allowed the executor to remove the suit on the ground, as the judge said, that the bank was a mere stockholder, and the real

controversy was between citizens of different states. On motion to remand, Justice BLATCHFORD, holding that the bank was not a mere stockholder, but a necessary party to any judgment that might be given in the case, since the suit discloses no "controversy wholly between citizens of different states, and which can be fully determined. as between them, without the presence of a defendant citizen of the same state with plaintiff, actually interested in such controversy."

In the pending suit, before the appearance of Young, judgment could have been given in favor of either party without in any way binding or affecting Young's claims. His voluntary appearance makes the dual controversy, new parties, and separable issues; but he claims nothing that is not intimately blended and connected with the matters actually in controversy between plaintiff and defendant, citizens of the same state. Mrs. Chotard, default having been taken against her by Freidler, stands as denying all of the demands made by Freidler. So she will stand, as against Young's demand, should he take default against her. It is suggested in argument that she may not answer, or may admit Young's claim; but her action cannot in this way be anticipated. If she does not answer, Young cannot try his intervention without putting her in default, and then she will stand, as she is presumed now to stand, in court as having denied all of his claims. All three of the litigants have controversies together, and against one another. The several things claimed by Young form, more or less, the subject matter of a controversy between Freidler and Mrs. Chotard, and he could not obtain a judgment in any court allowing him any one of the rights or things claimed, without such judgment operating upon and binding plaintiff and defendant as to matters and things about which they are actually disputing. Cause remanded.

TORPEDO Co. v. BOROUGH OF CLARENDON.

(Circuit Court, W. D. Pennsylvania. January 21, 1884.)

1 MUNICIPAL CORPORATION-REMEDY FOR DAMAGE CAUSED BY UNREASONABLE ORDINANCE-ACTION AT Law.

The ordinary remedy for an injury from the operation of an unlawful municipal ordinance is by an action at law, for complete redress in damages is generally thus attainable.

A borough ordinance forbids any person to convey or have, etc., within the borough limits, any nitro-glycerine, (except enough to "shoot" any oil well within the borough, and this upon payment of a license fee,) under a penalty of not less than $50, nor more than $100, for each offense, upon conviction before the burgess or a justice of the peace. Plaintiff's works for the manufacture of nitro-glycerine are nine miles from the borough, and a magazine for its storage is one mile from the borough, on the opposite side. Plaintiff's employes conveying nitro-glycerine from its works to the magazine along public

highways, through the borough limits, were arrested and fined, but these judicial proceedings were removed into the proper county court, and are there pending The plaintiff, alleging that the ordinance is unreasonable, unauthorized, and void, and injurious to its business, filed a bill in equity against the borough to restrain the enforcement thereof, etc. Held, that the case was not one for equitable relief, and, on this ground, a preliminary injunction refused. In Equity. Sur motion for a preliminary injunction. Brown & Stone, for complainant.

D. I. Ball, for defendant.

ACHESON, J. This is a suit by the Torpedo Company, a corporation of the state of Delaware doing business in the state of Pennsylvania, against the incorporated borough of Clarendon, in Warren county, in the latter state, to restrain the enforcement against the plaintiff of an ordinance of the borough, enacted April 24, 1882, which declares it to be unlawful for any person to "store, house, convey, carry, or have in his or her possession," within the borough limits, any nitro-glycerine, (except enough to "shoot" any oil well in the borough, on payment of a license fee of $10,) under a penalty of not less than $50, nor more than $100, for each offense, upon conviction before the burgess or a justice of the peace. The proper operation of oil wells, it seems, requires that torpedoes containing nitro-glycerine be exploded from time to time in the wells. The plaintiff has established works for the manufacture of nitro-glycerine in the county of Warren, nine miles from Clarendon, and on the opposite side of the borough there has been located a magazine of one of its customers for the storage of nitro-glycerine for the supply of the trade in the oil territory known as the Clarendon field, lying in and about the borough. The plaintiff alleges that to reach this magazine with supplies of nitro-glycerine it is necessary to traverse certain highways within the borough limits, but which do not pass through the thickly-settled portions of the town. To insure safety in transportation, the plaintiff has observed commendable care in providing wagons constructed specially for the purpose, with appliances well adapted to reduce the danger of explosion to the minimum, and it is alleged by the plaintiff that these precautions secure the public from all risk. The plaintiff began business after the passage of the ordinance, and the magazine was located so late as May or June, 1883. Employes of the plaintiff have been twice arrested and fines imposed for violations of the ordinance, but these judicial proceedings have been removed into the proper court of Warren county, and are there now depending. The plaintiff claiming that the regulation in question is unreasonable and oppressive,-abridging its legal right to use the public highways of the borough, and injuring its business, and that the ordinance is without legislative warrant and void, prays the court for an injunction to restrain the borough from enforcing the same against the plaintiff, and from arresting its employes, or bringing or prosecuting any action, civil or criminal, against them for a violation thereof.

The affidavit in behalf of the defendant in opposition to the allowance of the present motion, sets forth facts in vindication of the ordinance as wise and reasonable, and controverts some of the material allegations of the bill. But were it clear that the ordinance is void, is this a case for equitable relief? Undoubtedly courts of equity often interdict the unlawful exercise by municipal corporations of their powers; and, possibly, cases of such peculiar hardship from the enforcement of a void ordinance in restraint of trade might arise, that a court of equity would feel moved to interpose, by injunction, even before its illegality had been established at law. But such cases would be exceptional. Dill. Mun. Corp. § 727; Ewing v. City of St. Louis, 5 Wall. 413; High, Inj. §§ 1242, 1244. The ordinary remedy for an injury from the operation of an unlawful municipal ordinance is by an action at law, for complete redress in damages is generally thus attainable.

The learned counsel for the plaintiff rely on Butler's Appeal, 73 Pa. St. 448. But it is not an authority, it seems to me, for the proposition that an injunction is a proper remedy for the injury of which the plaintiff complains. That was a case of a clearly illegal exercise by city councils of the taxing power. I have been referred to no precedent, nor have I been able to find any, where a court of equity in such a case as the present has granted the relief the plaintiff seeks. But in several analogous cases such redress has been denied, and the aggrieved party turned over to his legal remedies. Burnett v. Craig, 30 Ala. 135; Gaertner v. City of Fond du Lac, 34 Wis. 497; Cohen v. Goldsboro, 77 N. C. 2; Brown v. Catlettsburg, 11 Bush, 435. Here the plaintiff's legal remedies are, I think, ample. One of these has already been invoked; for by certiorari or appeal the proceedings against the plaintiff's employes for violation of the ordinance have been removed into the proper state court, and are there pending. It does not appear to me that the plaintiff is likely to sustain any injury which may not be fully and adequately compensated by an action for damages, should it be adjudged that the ordinance is invalid.

The motion for an injunction is denied.

WASHBURN & MOEN MANUF'G Co. v. WILSON.

(Circuit Court, 8. D. New York. January 2, 1884)

CONTRACT-CONSTRUCTION-DEPENDENT AND INDEPENDENT STIPULATION.

The Washburn & Moen Manufacturing Company granted Wilson an exclusive license to manufacture bale-ties under their patent, in New York city, for which he agreed to pay them certain royalties every month. He afterwards invented a splicing-machine, and made a written agreement with the company, by the terms of which he was to assign to them for $300 the patent for his machine when secured, and they were to grant him back a license to use the

machine, under certain conditions, while he was to continue paying the royaltics. The patent was obtained, and the assignments were made according to agreement, but Wilson refused to pay the royalties. The manufacturing company thereupon brought suit to restain him from using the splicing-machine till the royalties were paid; but, held, that the license to use the machine was independent of the agreement to pay the royalties, which had to do only with the previous license to manufacture bale-ties.

In Equity.

W. B. Hornblower, for orator.

Edwin S. Babcock, for defendant.

WHEELER, J. The orators own reissued letters patent No. 7,388, dated November 7, 1876, and original letters patent No. 66,065, dated June 25, 1867, for wire bale-ties, and December 6, 1878, granted to the defendant an exclusive license for the city of New York and its neighborhood to make such ties of wire that had been before used for binding bales, for the term of one year, and agreed to license him for an additional year, for which he agreed to pay on the fifteenth day of each month a royalty of 10 cents for each 250 ties made the last previous month. The defendant invented a machine for splicing wire, made application for a patent, and on the twelfth day of June, 1879, while the application was pending, agreed with the orators that they should have the invention, when he got a patent, for $300, and grant him the right to use his machine in the United States except for uniting the ends of bale-ties in position around bales, and not to license any one else to make ties under their patents, nor engage in splicing wire themselves, within 25 miles of New York city, and that he should continue to pay the royalties on the former patents during their term on all ties he should make and not sell to the orators. His patent was granted and assigned to the orators, and a license back for his machine executed, according to the agreement, but he did not continue to pay the royalties according to the agreement, and they brought suit and recovered judgment for $728.71 arrears, with $313.15 costs. This suit is brought to restrain the defendant from using his machine without paying these royalties. These agreements were in writing, signed by the parties, and contained some stipulations other than those mentioned, not here material, but none that the license should cease on or be revocable for non-payment, and no express condition on the subject of the license.

It is claimed in behalf of the orators that the grant of the license. by the orators, and the agreement to pay the royalties by the defendant, were so far dependent stipulations that the law would imply a condition that the benefits of one should not be enjoyed without a reciprocal performance of the other; or that such enjoyment without performance would be so unjust and inequitable that a court of equity should restrain the enjoyment until performance should be made or secured. This claim is not acquiesced in by the defendant, but is disputed. The court cannot make nor unmake, even in equity, the contracts of the parties; at most, it can only interpret and enforc