
    A. Denniston et al. v. George Potts.
    Under the act of Congress of 1789, regulating the transfer of causes from the state to the -United States Courts, no case can be transferred unless it be such that, as between all parties, the suit might have been brought in the latter courts.
    The circuit courts of the United States have not jurisdiction of a case, in which one of the parties defendant and the plaintiff are residents in different districts from that in which the suit is brought; though it seems such non-resident defendant may waive his privilege, and assent to the jurisdiction.
    Therefore in a suit in a state chancery court by a non-resident plaintiff against resident defendants, alien defendants, and a non-resident defendant, the state court could not direct a transfer of the suit to the circuit court of the United States, at the instance of the alien defendants; because the non-resident defendant in the state court could not be brought before the United States court, except by his voluntary act.
    
      Nor would the fact, that the non-resident defendant had answered in the state court, when the application for the trajigfer was made, alter the rule ; she might not have done so, had she been sued in a different forum.
    Nor will the act of congress of 1839, permitting defendants residing in different districts, to be sued in the United States courts alter the rule, unless such non-resident defendant be a merely nominal party. That act merely permits the jurisdiction where the non-resident defendant chooses to submit to it; or if he will not voluntarily submit to it, the act permits the plaintiff to proceed to judgment against those rightfully before the court, and dismiss as to the others, against whom the judgment would not be obligatory ; in the case put, therefore, the jurisdiction would depend on the assent of the nonresident defendant; and as he did not join in the petition for the transfer, that assent will not be presumed from his having filed his answer in the state court; on a transfer of the cause, he would have a right to withdraw his appearance, and the plaintiff would thus be deprived of a judgment against him.
    It seems that the wife of a mortgagor, who has joined in the mortgage, is not a merely nominal party to a suit, the object of which is to subject the mortgaged premises to sale under the mortgage; she has a right to redeem, so as to protect her dower interest.
    The general rule is, that a married woman becomes a material party to a suit, only from the time she is ordered to answer separately; yet if she answer separately, and her answer be received, she will be placed on the ground of a separate defendant.
    ON appeal from the vice-chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.
    In July, 1846, George Potts, a citizen of the state of New York, filed to the December term, 1846, his bill to foreclose a mortgage on land and negroes in this state, executed by William Ferriday, and Helen C. Ferriday, his wife; the parties made defendants were H. S. Eustis, J. F. Gillespie, and F. S. Hunt, assignee in bankruptcy of William Ferriday, and all citizens of Mississippi, Mrs. Helen C. Ferriday, a citizen of Louisiana, and the members of the firm of A. & J. Denniston & Co., who are aliens.
    The answers of all the parties, except the last, were obtained and filed with the bill on the 4th day of July, 1846.
    Mrs. Ferriday, in her answer, disclaims all interest in the property.
    
      On the first day of the December term, 1846, A. <fc J. Dennis-ton & Oo. applied by petition to remove the cause into the federal court, according to the act of Congress, on the ground that they were aliens. The prayer of the petition was disallowed, and this appeal prosecuted.
    
      H. S. Eustis, for A. & J. Denniston & Co.
    The petition was refused on the ground that Mrs. Ferriday was a citizen of Louisiana, and could not be sued in the circuit court of the United States for Mississippi. To this I answer:
    I. Her answer is already on the record disclaiming all interest.
    2. The circuit court has jurisdiction between a citizen of a state and citizens of other states than that wherein the plaintiff resides. 2 How. U. S. Rep. 556.
    3. The act of Congress of the 28th of February, 1839, (vol. 9, p. 962, § 1,) which provides that where there are several defendants, and some of them not found, the case may proceed to judgment against those found without prejudice to those not found.
    The case of the Louisville Railroad Co. v. Letson, 2 How. Sup. Ct. Rep. 556, says, that the act of 1839 was passed exclusively to rid the courts of the decision in Straiobridge v. Curtiss, 3 Cranch, 267; which decided that all the plaintiffs and all the defendants must be within the jurisdiction of the United States’ court.
    By the case in 2 How. 557, it seems that the act of 1839 enlarges the jurisdiction.
    Since the decision in 2 How. there can be no doubt that this bill could have been filed in the United States circuit court of Mississippi against all of these same defendants, and if Mrs. Ferriday was not found, it would proceed to judgment against the others without prejudice to her. There can be but two questions. 1. Is the case within the jurisdiction? 2. Was the petition filed in time and according to the act of 1789 ? Both must be answered in the affirmative.
    Where an alien is defendant, it is not required that the plaintiff should be a citizen of the state in which the suit is brought, but where the suit is between citizens of different states, it is required that one of the parties should be a citizen of the state in which the suit is brought. Sec. 12 of act of 1789, (2 Laws ü. S. 56, § 11.)
    4. The case comes up properly from judgment, dismissing the petition. Hill v. Henderson, 6 S. & M. 356; Martin & Yerger, 266.
    
      J. T. McMurran, for appellee.
    1. We insist that, under the constitution of the United States, no suit can be removed on petition from a state court to a court of the United States, which might not have been originally instituted in the latter court. The jurisdiction cannot be more ■extended in the one case than in the other.
    2. Take the leading authorities -then on this point of federal jurisdiction.
    In the case of Strawbridge v. Curtiss, 3 Cranch, 267, it is decided that in a suit where there is more than one party plaintiff and one defendant, either plaintiff must have the right to sue either defendant in the federal court, to give it jurisdiction of such a suit. The same in 5 Cranch, 84; also Commercial and Rail Road Bank of Vicksburg v. Slocomb, et al., 14 Peters, 60, in which the court decide that the act of Congress of 1839, referred to by the opposite counsel, did not make any change in the jurisdiction of the court, as regards the character of the parties, &c.
    It is obvious that the federal court could have no jurisdiction originally, and as little could it have by removal.
    Potts could not have so brought his suit, he being a citizen of New York, and Mrs. Ferriday being a citizen of Louisiana. The federal court in Mississippi could not exercise jurisdiction without one of them being a citizen of this state, where the suit is instituted.
    3. Again. If there are two defendants in the state court, and one of them is a citizen of the state, the cause cannot be removed. Beardsley v. Long, 4 Wash. C. C. R. 286; 5 John. R. 300.
    
      It is true, the court will not regard a mere nominal party; ■otherwise, where a decree is necessary against such party. Wormly v. Wormly, 8 Wheat. R. 432; Carneal v. Bank, 10 lb. 188.
    4. But Mrs. Ferriday is not a nominal party, nor does she disclaim. She is a necessary party. She is a party to the mortgage, and no complete relief could be had without her being a party. She could not be foreclosed of her equity, and a title to the property acquired under a sale by a decree in this suit, otherwise than by her being a defendant. She is as essential a party in this suit as the Dennistons.
    5. But it is said that the law of Congress of 1839, and the decision in the case of the Louisville JR. R. Co. v. Lelson, 2 How. U. S. Rep. 497, have changed the law in this respect. Not so. That act only provides for going on with the suit where a party does not answer or cannot be served with process. But in this ■case the party defendant appears and answers; this act can have no application, the jurisdiction of the court is just the same as it would be without this law.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

George Potts, a citizen of New York, filed this bill in the district chancery court, against H. S. Eustis, J. F. Gillespie, and F. S. Hunt, citizens of Mississippi, and against the commercial firm of A. & J. Denniston & Co., who are alleged to be citizens of Louisiana, but who are, as appears by their petition, aliens. Mrs. Ferriday, the wife of the mortgagor, is also party defendant, and a resident of Louisiana.

A. & J. Denniston & Co. presented their petition to the vice-chancellor, praying to have the cause transferred to the United States court, according to the provisions of the 12th section of the judiciary act of 1789. The petition conforms in all things to the requisitions of the act, but the vice-chancellor refused the application, and thereupon the applicants appealed.

We agree with counsel, that no case can be transferred, unless it be such, as between all parties, that the suit might have been brought in the federal courts. The act was not intended to enlarge the jurisdiction of the federal courts, but only to leave it to the defendant to elect between concurrent jurisdictions. The inquiry then is narrowed down to a single point: Could this suit, as between these parties, have been brought in the circuit court of the United States? The jurisdiction of that court is not denied as to any of the parties, except Mrs. Perriday.

According to what seems to have been the uniform construction of the judiciary act, a party cannot be sued out of the district in which he lived, unless he should happen to be found in the district in which the plaintiff was a citizen. In other words, one of the parties must be a citizen of the district in which the suit is brought. Gracie v. Palmer, 8 Wheat. 699; Craig v. Cummings, 2 Wash. C. C. R. 505; White v. Fenner, 1 Mason, R. 520; Shute v. Davis, 1 Peters, C. C. R. 431. On this construction, Mrs. Ferriday was not liable to be. sued in the circuit court of Mississippi by a citizen of New York. According to the case of Grace v. Palmer, she could waive her privilege by appearance, but this is not a sufficient ground to authorize us to say that the circuit court would have had jurisdiction. It must possess such jurisdiction as a matter of right, otherwise the suit cannot be transferred. True, Mrs. P. has voluntarily appeared and answered the bill in the vice-chancery court, but it does not follow that she would have done so had the suit been brought in the circuit court of the United States.

But it is said the jurisdiction of the circuit courts has been so far enlarged by the act of Congress of 1839, and the construction which has been put on it, as to embrace the case before us. This statute has been construed by the supreme court, first, in the Commercial & Railroad Bank of Vicksburg v. Slocomb, 14 Peters, 60; and second, in the Louisville Railroad Co. v. Letson, 2 How. S. C. Rep. 497. In both these cases the court held, that the act of 1839 was intended to obviate difficulties which had arisen in the practical operation of the 11th section of the judiciary act, under which defendants residing in different districts could not be sued in the federal courts. Now suits may fie brought against such defendants, some of whom reside where the suit is brought, and others in a different district; or the latter class of defendants may be left out. In such cases, the court proceeds against the parties rightfully before it, and against non-residents of the district, who may voluntarily submit to its jurisdiction, but its judgment does not bind those who are not before it. Under this construction, the circuit court for the district of Mississippi could have entertained jurisdiction, because the plaintiff is a citizen of New York, and Eustis, Gillespie, and Hunt are citizens of Mississippi, and the Dennistons are aliens. As Mrs. Ferriday resides out of the district, she is still not liable to be sued, unless she should choose to enter a voluntary appearance. If she should refuse to do so, no judgment could be rendered against her, although the court might proceed as to the others. The statute, therefore, seems to have been intended for the benefit of plaintiffs. It enables them to sue in the United States courts in cases not before provided for, if they should be willing to drop part of the defendants. It authorizes the severance of defendants who were before liable only to be sued jointly. But if a party, under such circumstances, should elect the state courts, where he can reach all of the defendants, can a portion of the defendants compel him to transfer his case, when, by doing so, he must abandon his suit as against one of them ? This would be to abridge his right. The act of Congress makes no provision for transferring causes in which there are more defendants than one, and where this is the case, the defendants must unite in their application, as we apprehend no transfer can be compelled where part of the defendants are opposed to it. Mrs. Ferriday does not join in this petition, nor can she be made a party in the federal court unless by her voluntary appearance. True, she has appeared in the state court, but that should not compel her to submit to a different jurisdiction, without her election. If the cause is transferred, she ought to be allowed to withdraw her appearance, and this would deprive the plaintiff of his right to a judgment against her. On this view of the question, the suit should not be transferred, unless Mrs. Ferriday is only a nominal party. The federal courts cannot be ousted of jurisdiction because nominal parties are sued. But we are not prepared to say that this is the case as to Mrs. Ferriday. She is a party to the mortgage; she had a right to dower in the mortgaged premises; she has parted with that right only on condition, or rather she has a right to redeem so as to protect her interest. It is true that the general rule is, that a married woman becomes a material party only from the time she is ordered to answer separately. Mrs. Ferri-day has answered separately, and the answer was received. She is thus placed on the ground of a separate defendant. The judgment must therefore be affirmed.  