plaintiff, in discharging his duty as president of said mills, and in the interest of economy, and in the interest of all the stockholders, submitted to said firm that the commissions so charged were exorbitant, and could and should be reduced, and, upon their refusal to comply with this reasonable request, the plaintiff, in the discharge of his duty, and for the best interest of all the stockholders, entered into arrangements with another commission house to sell the product of said mills at a commission not exceeding 2 per cent. upon the gross sale; that this arrangement was obviously greatly to the advantage of all stockholders of said mills, but was to the personal disadvantage of the said defendants, who took umbrage thereat, and did all they could to prevent the consummation of so beneficial an agreement. He thereupon charged that the other defendants named, including the partners and son of S. M. Milliken, were conspiring and confederating with said S. M. Milliken and other parties to the plaintiff unknown to vote the stock standing in their names for the common purpose of canceling and avoiding the beneficial agreement made by the plaintiff, for and in behalf of the stockholders of the said cotton mills, and again subjecting said corporation and the stockholders thereof to the exorbitant charges made by said firm, and that said S. M. Milliken, for the purpose of carrying out said illegal agreement and conspiracy, had recently purchased a large number of shares of stock of the Laurens Mills, for the purpose of effecting a change in the management, and putting in charge of said mill a management entirely amenable to their wishes and instructions. He demands judgment (1) that S. M. Milliken be required to perform specifically the contract for the sale of 500 shares at and for the sum of $150 per share; (2) that the defendant S. M. Milliken be enjoined and restrained from transferring or in any way changing the possession of 500 shares of stock, and from voting the same at any meeting of the stockholders of the defendant Laurens Cotton Mills; (3) that the other defendants named, and each of them, be enjoined from voting any and all shares of stock held by them, save under the direction of the court; (4) that the defendant Laurens Cotton Mills be enjoined from receiving and counting at any election the votes of any of said parties of any of the stock standing in their name; (5) for damages against S. M. Milliken by reason of his failure to specifically perform his contract in the sum of $50,000; (6) for damages against said S. M. Milliken and the other defendants for the damage so willfully, wantonly, and maliciously done to the plaintiff, in the sum of $50,000; (7) for such and other and further relief as is proper in the premises; (8) for his costs in this action.

Upon this complaint an order was made by his honor Judge Klugh, May 17th, enjoining and restraining S. M. Milliken from transferring or in any way disposing of the said 500 shares of stock specifically, and voting the same at any meeting of the stockholders. of the defendant company. Said Milliken and all of the other defendants were also enjoined from voting any and all shares of stock held by them, and the Laurens Cotton Mills was enjoined from al

lowing them to so vote. It was further ordered that defendants, or any of them, have leave, upon eight days' notice given to the plaintiff or his attorneys, to move before the court or any judge thereof to dissolve or modify the restraining order, provided that with notice of such motion said defendants serve a copy of the grounds and affidavits, if any, upon which such dissolution or modification was asked. It was further ordered that within five days plaintiff should file a bond in the sum of $1,000, conditioned for the payment of any damage which defendants, or either of them, might sustain by reason of the injunction granted, and further ordered that a copy of that order be served upon each of the defendants herein. It appears from the affidavit submitted that G. H. Milliken, one of the defendants named, was at Laurens on May 15th, and remained until the afternoon of May 16th, within the knowledge of the plaintiff, who signed certain certificates of stock which he had tendered for transfer, and that he remained in the state continuously to May 19th, at Laurens and at Spartanburg, and it was known that he had come to the state for the purpose of attending the annual meeting; that he returned from Spartanburg to Laurens at 1:30 p. m. on May 19th; and that the injunction was served on him about 5:30 p. m. The regular annual meeting of the company was held at Laurens on May 19th. A committee was duly appointed to ascertain whether a quorum was present, and reported that 3,404 out of 3,500 shares were represented in person or by proxy. The usual annual reports were submitted, and, after the transaction of the customary business, Mr. Smythe put in nomination the names of nine gentlemen as directors for the ensuing year. Mr. G. H. Milliken then stated that he desired to place in nomination the names of nine gentlemen for directors. At this juncture the deputy sheriff, who, it appears from the affidavit submitted, had been in waiting for some time, thereupon served Milliken with a copy of the order of injunction hereinbefore referred to. Mr. John B. Cleveland moved that the meeting be adjourned for eight or ten days. Mr. Dial moved to amend by moving to adjourn for the space of two weeks. On Mr. Cleveland's motion, as amended by Mr. Dial, the vote stood ayes 13, nays 20. The motion was therefore lost, and the meeting refused to adjourn. Mr. Cleveland then asked that Mr. Milliken's proxies be returned to him. This motion was refused. Mr. Cleveland then announced that Mr. Milliken and his friends proposed to withdraw from the meeting, and thereupon Mr. John B. Cleveland, the owner of 100 shares, Mr. Jesse Cleveland, the owner of 64 shares, Mr. W. S. Montgomery and Mr. D. B. Little, holders of a small number, all of Spartanburg, and Mr. N. B. Dial, holder of 130 shares, Mr. J. O. C. Fleming, owner of 76 shares, who heretofore had been directors of the company, resident at Laurens, and two other Laurens stockholders, withdrew from the meeting, and the directors nominated by Mr. Smythe, consisting of Mr. Lucas and his friends, were thereafter elected, receiving 1,293 votes. Mr. Lucas was thereupon elected president of the company. The Milliken defendants filed

their petition in the court of common pleas for Laurens county, June 6, 1905, for the removal of this cause to the Circuit Court of the United States, filing the usual bond in such cases provided, and shortly thereafter gave notice of motion to dissolve the injunction, and June 23d was the day fixed for the hearing of said motion. On June 19th the plaintiff, Lucas, served upon defendants' attorneys copy of petition to remand, and the two motions were heard June 23d and June 24th; many affidavits having been filed, and the case fully argued. I have deferred the consideration and determination of the case because of a statement that there were negotiations looking to an adjustment of the controversy, but, being now assured that a settlement is not probable, I will proceed to state my conclusions.

On the Motion to Remand.

1. The parties in the suit are W. E. Lucas, plaintiff, a citizen of South Carolina; the Millikens, citizens of New York; Laurens Cotton Mills a citizen of South Carolina; and F. J. Pelzer and others, citizens of South Carolina, who, upon their own petition, were made parties defendant. The first question to be considered is the nature of the controversy, and whether it can be wholly determined between Lucas, on the one side, and the Millikens, on the other, without the presence of the other parties defendant, or, in the event that it should be considered that the others are necessary parties, whether their interest in the controversy is so far identical with the interest of the plaintiff, Lucas, that they will be grouped together on one side, without reference to their status. in the pleadings. Examination of the complaint shows that it is framed with a double aspect. First, it is a suit for specific performance of a contract for the sale of 500 shares of stock to Lucas by Milliken at a price named; and coupled with that is a claim for damages to Lucas of $50,000 because of nonfulfillment. This is a controversy wholly between Lucas and the Millikens. The Laurens Cotton Mills, as a corporation, can have no possible interest in it. It can receive no benefit, and suffer no detriment, however it may be determined, and could not appeal from any judgment entered, if the real parties are satisfied. 1 Dan. Ch. Pl. & Pr. *230, states the rule in suits for a specific performance: "It is a general rule that none but parties to the contract are necessary to the suit;" and on page 296: "In a suit to ascertain the property in a certain share in a banking company, litigated between two claimants, the company is not a necessary party." Frye, on Specific Performance, § 79, says: "The general rule is that the parties to a contract are alone to be parties to the suit." Cook on Corporations, § 338, says: "In a suit by the claimant of stock to obtain the stock from another person, the corporation is a proper, but not a necessary, party."

Reeves v. Corning (C. C.) 51 Fed. 778, cited with approval in Dillon on the Removal of Causes, is to the effect that where one of the defendants is a mere stakeholder, or has interest on the same side with the plaintiff, the fact that he is a citizen of the same state

with the plaintiff will not defeat the right of his codefendant, with whom the real controversy exists, to remove the cause. Williamson v. Krohn, 66 Fed. 656, 13 C. C. A. 668, is on the same line.

Numerous cases have been cited by counsel for plaintiff to show that the corporation is an indispensable party. I have carefully examined them, and in my opinion the facts in each case differentiate them from that now under consideration.

In Kendig v. Dean, 97 U. S. 423, 24 L. Ed. 1061, the complainant was the owner of 184 shares of stock. During the Civil War the defendant obtained possession of the books of the company, and it was charged in the bill of complaint that, being so in possession, he wrongfully and fraudulently transferred upon the books of the company to his own name, as owner, the shares of complainant's stock. The relief asked was the restoration of the stock on the books of the company to the name of the complainant, and its recognition of his rights. The suit was brought against Dean, and the company was not made a party and the court held that the gaslight company was an indispensable party to the relief sought by this bill.

In St. Louis, etc., Railway Company v. Wilson, 114 U. S. 60, 5 Sup. Ct. 738, 29 L. Ed. 66, suit was brought by Wilson against the railway company and the Seligmans to compel the company to transfer to Wilson on its books certain shares standing in the name. of the Seligmans, and to issue to him certificates therefor. The petition stated that Wilson had purchased the stock at a sale under an execution in his favor against the Seligmans, and that he had exhibited to the company his certificate of purchase, and demanded that it should cause his name to be entered on the stockbooks as the owner. The prayer was for the transfer of the stock, the cancellation of the certificates to the Seligmans, and the issue of new certificates to Wilson. The court held that the sole purpose of the suit was to establish the duty of the railroad company to transfer to Wilson the stock standing in the name of the Seligmans, and to enforce its performance; that the Seligmans were made parties only in aid of the principal relief which was asked for.

In Crump v. Thurber, 115 U. S. 56, 5 Sup. Ct. 1154, 29 L. Ed. 328, suit was commenced by Crump against Wilson and the dairy company; the complaint alleging that Crump had, under a contract with Wilson, assisted him in selling rights under a patent, by the terms of which Wilson was to receive $12,000 for the rights for Kentucky, and $8,000 for the rights for Indiana, and all received. above those sums for either state was to be divided equally between Crump and Wilson; that the rights for Kentucky and Indiana were disposed of to the dairy company, and 1,000 shares of its capital stock, out of 2,000, were issued to Wilson in payment for the rights; that he refused to give to Crump any part of the money, but a large amount of the stock still stood on the books of the corporation in Wilson's name, and that Crump was entitled to 300 shares thereof; the petition praying that Crump should be adjudged to be the owner of this stock; that the corporation be ordered to cancel on its books the stock standing in Wilson's name, and to issue to

Crump certificates therefor. The corporation was served with process, and filed its answer, stating that one Thurber had bought Wilson's stock, and had received from him the certificates thereof, and had notified the corporation thereof, and claimed to have it transferred to his own name. Crump then amended his petition by making Thurber a party to the suit. Thurber answered, and filed his petition and bond for the removal to the United States court, he being a citizen of New York. On appeal to the Supreme Court of the United States, that Court held that in the controversy between Crump and Thurber the corporation was an indispensable party, and, as that was a Kentucky corporation, and Crump a citizen of Kentucky, the case could not be removed by Thurber.

In Wilson v. Oswego Township, 151 U. S. 56, 14 Sup. Ct. 259, 38 L. Ed. 70, the plaintiff was a citizen of Missouri, and the defendant a citizen of Kansas, and the controversy was between the plaintiff and defendant relative to the right of possession of certain bonds that were in the custody of the bank, which was a corporation of the State of Missouri. The court held that, the bank being a necessary party, the suit could not be removed to the federal court by its codefendant.

In Patterson v. Farmington (C. C.) 111 Fed. 262, Patterson, a citizen of Connecticut, brought a suit against a street railway company of that state, Coykendall and Soop, citizens of New York, and Greeley, a citizen of Connecticut, alleging an agreement with Coykendall to sell him certain mortgage bonds of a Connecticut corporation, the foreclosure of the mortgage, the purchase by the three parties named as trustees, the organization of the street railway company by subscription by them as trustees for the persons entitled to the bonds, which bonds were then represented by stock in the railroad company, and that no certificates had been actually issued by the street railway company, and that these parties intended to transfer the stock, and prevent plaintiff from obtaining his due portion of the same. He sought a decree against the trustees and an injunction, etc. The District Court held that the corporation was a necessary party.

In all of that line of cases where the corporation is held to be an indispensable party, either the principal relief sought is against the corporation for some wrong done by it, or the action is for the purpose of having the ownership of the stock in question recognized by the corporation, and the stock transferred on its books. Except in the Connecticut case, none are for specific performance, and in that case the stock had not been issued by the corporation, and the defendants therefore had no evidence of ownership which could be delivered to plaintiff if he succeeded in his suit.

In Cella, Adler & Tilles v. Brown (C. C.) 136 Fed. 439, Judge Sanborn reviews most of the cases above cited in a case where the complainants brought suit for specific performance against Brown Bros. & Co. and certain corporations-among them, the National Bank of Commerce, who had been appointed by Brown Bros. their agent to receive contributions of all the stockholders in a certain reorganization plan. The bill prayed that the proceedings in the at