Geer v. Mathieson Alkali Works, 190 U. S. 428, 432, 23 Sup. Ct. S07, 47 L. Ed. 1122; Bacon v. Rives, 106 U. S. 99, 104, 1 Sup. Ct. 3, 27 L. Ed. 69; Wormley v. Wormley, 8 Wheat. 421, 451, 5 L. Ed. 651; Wood v. Davis, 18 How. 467, 475, 15 L. Ed. 460; Sioux City Terminal R. & W. Co. v. Trust Co. of North America, 82 Fed. 124, 126, 27 C. C. A. 73, 75. There is no allegation in the bill that the railroad corporations have done or threaten to do any act in violation of, or to prevent the performance of, the contract of Brown Bros. & Co.; and there is no prayer in the bill for any decree that they, or either of them, shall make any conveyance or take any step toward the execution of that agreement. There is a prayer for an injunction to forbid them from doing any act or taking any step to interfere with the rights of the complainants, but it stands without averment or recital of any fact to sustain it. The railroad corporations, therefore, are not made by the allegations of this bill indispensable parties to the controversy and cause of action for the enforcement of the contract of Brown Bros. & Co. Nor is any such claim seriously made by counsel for the complainants.

But counsel argues with great ability and force that the Bank of Commerce is an indispensable party to this cause of action, and in support of his contention he cites Wilson v. Oswego Township, 151 U. S. 56, 14 Sup. Ct. 259, 38 L. Ed. 70; Barth v. Coler, 60 Fed. 466, 9 C. C. A. 81; Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 92, 97, 18 Sup. Ct. 264, 42 L. Ed. 673; Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528; and other cases. Before entering upon the discussion of the opinions in these cases, it is well to fix in mind the nature of the cause of action, and the statements of the bill concerning it. This cause, when reduced to its lowest terms, is for the specific performance of an agreement which Brown Bros. & Co. made with the two railroad corporations for the benefit of the complainants, to the effect that they should receive one-sixteenth of the pledged securities upon payment of one-sixteenth of the debt of $7,000,000. The complainants aver that Brown Bros. & Co. refused to perform without just cause; that their excuse that the complainants will not sign the burdensome contract which they present is without merit; and they ask a decree that Brown Bros. & Co. shall convey and deliver to them their one-sixteenth of the pledged securities. The controversy between them is whether or not the complainants are legally entitled to this delivery and conveyance upon the payment of their share of the debt, without signing the contract demanded by Brown Bros. & Co. The determination of this controversy is conditioned entirely by the terms of the contract which Brown Bros. & Co. have made with the railroad companies. If by the terms of that contract the complainants are entitled to this share without signing the agreement requested, they are entitled to the relief which they seek by this cause of action. And if by the terms of that contract with the railroad companies they are not entitled to this conveyance, this cause of action fails. The National Bank of Commerce was not a party to this contract. It was but the agent of Brown Bros. & Co.

to do its bidding in the receipt of the contributions. After the controversy had arisen, and after the complainants had refused to sign the contract with Brown Bros. & Co., and the latter had refused to receive or permit the bank to receive their contribution, the bill alleges that the bank claimed that it paid the contribution allotted to the complainants, and that, unless they sign the agreement with Brown Bros. & Co., the bank will claim the benefit of this payment, but that it acquired no right to any share in the securities which belonged to the complainants by this action. How, then, was the bank an indispensable party to the determination of the question between the complainants and Brown Bros. & Co.whether or not the latter's contract required Brown Bros. & Co. to convey and deliver the one-sixteenth of the pledged securities to the complainants upon the payment of their share of the debt without farther exactions?

In Wilson v. Oswego Township, 151 U. S. 56, 14 Sup. Ct. 259, 38 L. Ed. 70, bonds were deposited with the Union Savings Association, to be delivered upon the completion of a railroad. A controversy arose between claimants regarding their delivery. A suit was brought, to which the claimants and the association were parties. The court held that the association was an indispensable party to the suit, because it was the bailee or trustee in possession of the property. The decision has no relevancy to the issue in this suit, because the National Bank of Commerce has no possession or control of the pledged securities; and the only rational inference from the averments of the bill is that they are still in the possession and control of the creditors of the transit company to whom they were pledged, and who are not parties to this suit.

In Barth v. Coler, 60 Fed. 466, 9 C. C. A. 81, the allegations of the bill, which was exhibited by the owner of the equity of redemption in property which had been sold by the sheriff to set aside the conveyance he had made to the purchaser, were that the sheriff and purchaser had fraudulently conspired together to make the sale and to execute the deed. The rule is familiar and conceded that suits for joint trespass (Little v. Giles, 118 U. S. 596, 601, 7 Sup. Ct. 32, 30 L. Ed. 269), for joint negligence (Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121; Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 92, 97, 18 Sup. Ct. 264, 42 L. Ed. 673), and for the breach of a joint contract (Railroad Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63) may not, by the denial of joint liability by the defendants, or by the presenta tion of separate defenses, be resolved into separable controversies, because, where the cause of action may be joint or several, the plaintiff may select and state in his pleadings the basis upon which he sues; and it is not competent for the defendants, by interposing separate defenses, to make a controversy several which the pleadings of the plaintiff show to be joint. But this rule is inapplicable to the case at bar, because the bill itself discloses the fact that the cause of action against Brown Bros. & Co. and the National Bank of Commerce is not joint. It is based upon the contract of Brown Bros. & Co., in which the Bank of Commerce never joined, and to

which it is not a party. Strike down the contract of Brown Bros. & Co., and there is no cause of action against them or the bank, because, in the absence of that contract, they would all be free to dispose of the pledged securities which they might purchase to such persons and on such terms as they might elect. The sine qua non of the cause of action is the contract, and, so far as Brown Bros. & Co. and the Bank of Commerce are concerned, that contract is the several contract of the former, and it is not the contract of the latter.

In Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528, a suit in partition was commenced, and in the course of its progress a controversy arose between several of the parties to that suit over the title to an undivided share of the property which was the subject of the suit. The court properly held that inasmuch as the purpose of the suit was to administer the entire estate described in the bill, to determine the claims and rights of all the parties to it, and to distribute it to them in kind or in proceeds, in severalty, this controversy was a part of that indivisible suit, and could not be properly separated from it. But neither the suit at bar nor the cause of action under consideration seeks to administer the pledged securities and to distribute them to their rightful claimants, so that the decision in Torrence v. Shedd is not applicable here.

The act of Congress provides that a suit of the nature of that in hand may be removed to the federal court when there shall be a controversy in it which is wholly between citizens of different states, and which can be fully determined as between them. In Barney v. Latham, 103 U. S. 205, 214, 26 L. Ed. 514, the complainants exhibited a bill against certain individuals and a corporation. The charge of the bill was that the complainants were, in equity, the owners of 1/37 of certain lands earned by the construction of a railroad; that the individuals had sold some of the lands, and received proceeds of such sale to the amount of $129,500, 1/37 of which belonged to the complainants; and that the individual defendants had caused the title to the remainder of the lands to be vested in the corporation. The Supreme Court held that the controversy between the complainants and the individual defendants, notwithstanding the fact that they were stockholders of the corporation, was separable from that between the complainants and the corporation, and said:

"With that controversy the land company, as a corporation, has no necessary connection. It can be fully determined as between the parties actually interested in it without the presence of that company as a party in the cause."

The cause of action against Brown Bros. & Co. to enforce their contract with the railroad corporations, and to compel them to convey and deliver to the complainants their one-sixteenth of the pledged securities, could have been maintained without the presence of the National Bank of Commerce. It was not a party to that contract. It had no possession or control of any of the pledged securities, and its presence in court was not necessary to a complete adjudication of the controversy which conditioned this cause.

of action. Nor could the complainants, by naming it as a party in their bill, by asserting that it made a claim to have contributed to the payment of the debt of the transit company and to a share of the pledged securities, nor by a prayer for a conveyance and delivery by it of property over which it had no control, make it a party to the contract of Brown Bros. & Co., which conditioned the cause of action and the controversy between the complainants and the latter. Nor was the prayer for an injunction against the bank more material or effective because an injunction against Brown Bros. & Co. would necessarily have all the effect of an injunction against the bank, since the former controlled, and the latter had no possession or control of the property in controversy. The conclusion is that the controversy between the complainants and Brown Bros. & Co. over the question whether or not the contract of the former with the railroad corporations required them to convey and deliver to the latter approximately the one-sixteenth of the pledged securities of the transit company upon the payment of a corresponding share of the $7,000,000, without exacting farther agreements or stipulations from them, was a controversy wholly between Brown Bros. & Co., citizens of New York, and the complainants, citizens of Missouri, which can be fully determined as between them; that the National Bank of Commerce has no part or lot in that controversy; and that it is not an indispensable party to the cause of action which it conditions. Blake v. McKim, 103 U. S. 336, 338, 26 L. Ed. 563; Hyde v. Ruble, 104 U. S. 407, 409, 26 L. Ed. 823; Geer v. Mathieson Alkali Works, 190 U. S. 428, 432, 23 Sup. Ct. 807, 47 L. Ed. 1122; Gudger v. Western N. C. R. Co. (C. C.) 21 Fed. 81, 83; Youtsey v. Hoffman (C. C.) 108 Fed. 693, 698; Lamm v. Parrot Silver & Copper Co. (C. C.) 111 Fed. 241.

The motion to remand must be denied, and it is so ordered.

HAMILTON v. McCLAUGHRY, Warden.

(Circuit Court, D. Kansas, First Division. April 12, 1905.)

No. 8,284.

1. WAR-COURTS-MARTIAL-JUDGMENTS.

Courts-martial being courts of inferior and limited jurisdiction, it must be made to clearly and affirmatively appear, in order to give effect to their judgments, that the court was legally constituted, that it had jurisdiction of the person and offense charged, and that its judgment imposed was conformable to law.

[Ed. Notes. For cases in point, see vol. 4, Cent. Dig. Courts-Martial, § 90.]

2. SAME-HABEAS CORPUS.

Where, on return to a writ of habeas corpus, the respondent alleged that he held the petitioner under a judgment of conviction by a military court-martial, the burden is on the respondent to show that the judgment was based on some provision of positive law.

8. SAME-ARTICLES OF WAR-CONSTRUCTION.

Whether a condition of war exists, within the fifty-eighth article of war, relating to the trial of certain offenses committed by soldiers, is

within the exclusive jurisdiction of the political department of the government.

[Ed. Notes.-For cases in point, see vol. 4, Cent. Dig. Courts-Martial, § 95; vol. 48, Cent. Dig. War, § 217.]

4. SAME "BOXER UPRISING."

The "Boxer Uprising" in China, in June, 1900, during which the United States assembled an army of 15,000 men, over 5,000 of which were ordered to and did proceed to China to assist the forces of allied nations in quelling the uprising and to release the accredited representatives of the United States then imprisoned within the city of Pekin, during which the pay of the officers and men in the United States military service was increased to a war basis, constituted "a time of war," within the fiftyeighth article of war, providing for the trial of certain offenses committed by soldiers in time of war by military court-martial.

E. R. Adams, for petitioner.

John S. Dean and Wm. G. Doane, for respondent.

POLLOCK, District Judge. This is an application for writ of habeas corpus. The return of respondent admits the restraint charged in the petition and seeks to justify upon the following state of facts:

On the 23d day of December, 1900, petitioner was a private in Troop K, Sixth Cavalry Regiment, Army of the United States, stationed at Camp Reilly, Pekin, China, having been ordered there to assist the allied powers in the protection of the foreign legations, and the suppression of what is commonly known as the "Boxer Uprising" in China. At that time and place petitioner shot and killed one Corporal Charley Cooper, of petitioner's regiment, for which offense petitioner was on February 4, 1901, tried by a courtmartial convened and sitting at Pekin, China. The trial resulted in a judgment of conviction. The record of the proceedings, trial, conviction, and sentence reads as follows:

"Headquarters China Relief Expedition,

"Pekin, China, February 4, 1901.

"General Orders No. 6. "(1) Before a General Court-Martial which convened at Pekin, China, pursuant to paragraph 5, Special Orders No. 1, January 2d, from these headquarters, and of which Colonel Charles F. Robe, 9th Infantry, was president, and Captain Charles R. Noyes, Adjutant, 9th Infantry, was Judge Advocate, was arraigned and tried Private Fred Hamilton. Troop K, 6th Cavalry.

"Charge: 'Murder, in violation of the 58th article of war.'

"Specification: In that Private Fred Hamilton, Troop K, 6th Cavalry, U. S. Army, did willfully, feloniously, and with malice aforethought inflict a wound on Corporal Charley Cooper, Troop K. 6th Cavalry, deceased, by firing a ball cartridge from a Colt's revolver, calibre 38, at said Cooper. From the effect of said wound, the said Cooper died almost immediately, about 8:25 p. m. on the 23d day of December, 1900. This at Camp Reilly, Pekin, China, about 8:25 p. m. on the 23d day of December, 1900.

"Pleas.

"To which the accused submitted the following plea in bar of trial: 'Want of jurisdiction of the court.'

"The special plea in bar of trial was overruled by the court-martial. The accused then pleaded as follows: To the specification: 'Not guilty.' To the charge: 'Not guilty.'