taming him, in a public thoroughfare; and in the latter it turned upon the duty of the proprietor of a public vehicle to provide one which was reasonably safe for the purpose. The subsequent cases in which Hammack v. White, 11 C. B. (N. S.) 588; 31 L. J. (C. P.) 129, has been cited do not in any one instance show that that case is not still good law. No single judge has intimated any dissatisfaction with the decision; but all have rather approved of it. With the exception of Simson v. London General Omnibus Co., Law Rep., 8 C. P. 390, none of these cases deal with the misconduct of an animate creature, but all were cases of accidents arising from the mismanagement of an inanimate thing—a cask or a bale of goods, or insufficient tackle. The passage in the judgment in Scott v. London Dock Co., 3 H. & C. 596; 34 L. J. (Ex.) 220, "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care,”. - was applied to a bale of goods slung from a crane overhanging a public thoroughfare falling through some unexplained cause and injuring a passer-by. Now, the two things-a bale of goods falling and a horse bolting—are so totally different in their nature that I think it would be a strong thing to hold that the principle there enunciated was intended to apply to the case of a horse. It is impossible to say that horses do not sometimes bolt without any negligence or unskillfulness of those having the charge of them. Here the evidence was that the horse started off and became uncontrollable; and no question was put to either of the witnesses as to negligence on the part of the driver. We cannot, therefore, assume that there was negligence. The last case cited, Simson v. London General Omnibus Co., Law Rep., 8 C. P. 390, seems at first sight to be more germane to the present case, because it was a case of injury from the kick of a horse. But the judgment puts it upon a ground which is not at all overruling Hammack v. White, 11 C. B. (N. S.) 588; 31 L. J. (C. P.) 129. Bovill, C. J., puts it expressly upon the duty of a person keeping a public vehicle "to provide proper horses, and such as will not unduly endanger his passengers." This is the case of a private person having a horse which suddenly bolts without, as I read the evidence, any negligence on the part of the driver. That is extremely like the case of Hammack v. Whi e, 11 C. B. (N. S.) 588; 31 L. J. (C. P.) 129, which, if still law, fully warrants us in holding that the county court judge was right in nonsuiting the plaintiff. The statement of claim is that a horse driven by a servant of the plaintiff was so negligently driven that he knocked down and injured the plaintiff. The evidence was this: the plaintiff was walking on the foot-pavement in Cockspur street, and was knocked down by the defendant's horse and injured. In answer to a question put to the plaintiff on his cross-examination, he said that he did not hear any one call out. A witness who saw the accident stated that "the coachman was trying his hardest to stop the horse, and he was not able to do so." At this stage of the trial the plaintiff's counsel proposed to call witnesses to show that the horse's shoes were insufficient, or that they were insufficiently fastened. But the defendant's counsel objected that this would not constitute "negligent driving," which was all that was charged in the statement of claim. The learned judge allowed the objection, and declined to amend the statement of claim. The point, however, ultimately came to nothing; for the next witness, who saw the horse bolt, stated that the first shoe was cast about twenty yards after the bolt. This witness also proved that the coachman was doing all he

could to stop the horse, but that he had no control over it. Looking at the whole of the evidence and at the course taken at the trial, I think there was no prima facie evidence of negligence on the part of the defendant's coachman which ought to have been left to the jury. It was said that the driver was guilty of negligence, because he did not call out. The words "without any warning," in the statement of claim were not inserted as a substantive allegation of negligence. Besides, there was no evidence we could rely on as to that, or that the omission to call out was the cause of the accident. All that appears upon that subject is the plaintiff's statement on cross-examination that he did not hear in. The whole thing would necessarily take place in a moment; and there could be no inference of negligence from the absence of warning. And we could not on that ground distinguish the case from Hammack v. White, 11 C. B. (N. S.) 588; 31 L. J. (C. P.) 129. The nonsuit was right, and this rule must be discharged.

LINDLEY, J. I am of the same opiniou. The plaintiff was lawfully walking on the foot-pavement of a public thoroughfare, and was knocked down by a horse drawing the plaintiff's brougham. If the case had been left there, it might be that the defendant was liable for negligent driving of her servant. But the explanation was given by the plaintiff's witnesses, viz., that the horse had bolted and the defendant's coachman had lost all control over it. We do not know what it was that caused the horse to bolt; and therefore we have no evidence that it was caused by the driver's negligence or want of care. It is said that negligence is to be inferred from the fact that the driver did not call out or give warning. I cannot see that that per se affords any ground for inferring negligence. The coachman himself was in fear for his own life; and the probability is that in such circumstances even a cool man might abstain from calling out. Theu it is said that the fact of the horse having cast one or two shoes was some evidence of negligence; but I cannot see that the fact of a horse having cast a shoe after he has bolted affords any evidence of negligent driving. To hold that the mere fact of a horse bolting is per se evidence of negligence would be mere reckless guesswork. To entitle him to recover in an action of this kind, the plaintiff must make out a clear prima facie case by evidence which will warrant an inference of negligence. This, I think, the plaintiff has failed to do here. It is then said that Cotton v. Wood, 8 C. B. (N. S.) 568; 29 L. J. (C. P.) 333, and Hammack v. White, 11 C. B. (N. S.) 588; 31 L. J. (C. P.) 129, have been overruled. In my opinion they are quite consistent with the principle laid down by Erle, C. J., in Scott v. London Dock Co., 3 H. & C. 596; 34 L. J. (Ex.) 226; and I find no case which has expressly overruled them. If upon the evidence as reported to us a verdict had been found for the plaintiff, it would, in my opinion, have been perfectly unwarrantable.

Rule discharged.

NEW YORK COURT OF APPEALS ABSTRACT.

GRANTEE OF

DEFENDANT

CAN

ATTACHMENT MOVE TO VACATE AFFIDAVITS FOR. (1) A person who has acquired an interest in land that has been attached by a conveyance is entitled under section 682 of the Code of Civil Procedure to move to vacate the attachment. The right of third persons to move is not confined to those who have acquired liens or interests by proceedings in invitum against the defendant in the attachment. The language of the section does not admit of this limitation, nor does there seem to be any reason why a person who has acquired an interest by voluntary transfer from the defendant should not be

permitted to stand in his place in respect to the right to question the validity of an attachment. The motion to vacate the attachment may be made by one who has acquired an interest in part only of the attached property. (2) The plaintiff held not entitled to read affidavits in support of an attachment other than those on whish it was issued. Order affirmed. Trow's Printing and Book-binding Co. v. Hart. Opinion by Andrews, J.

[Decided June 14, 1881.]

CONTRACT- - BREACH OF, WHEN PRECLUDES FROM - Plaintiff, RECOVERY FOR PARTIAL PERFORMANCE. about the 1st of March, agreed to insert defendant's advertisement in 1,075 newspapers, which were named in lists attached to the agreement, said advertisement to be set up as near as possible in same style and type as a copy furnished, to be inserted in the plaintiff's columns in said newspapers, under the head of new advertisements, for a sum per month specified, for six months. Defendants were to have the option at the expiration of two months, if they were not satisfied with the work done, of furnishing an electrotype advertisement for insertion, or of discontinuing the advertisement. At the end of two months they discontinued the advertisement. In an action for advertising two months the defendants set up that the terms of the contract were not complied with. It was found by the referee that plaintiff inserted the advertisement in only 1,022 newspapers, and not in all the newspapers named in the agreed list. He did not insert it in the same style as the copy furnished, and it was not inserted uniformly under the head of new advertisements. Held, not a substantial compliance with the contract, and plaintiff could not recover. Plaintiff had no claim against defendants except by virtue of the contract, and could not recover except by showing not literal but substantial performance of it. Glacius v. Black, 67 N. Y. 563; Philip v. Gallant, 62 id. 256; Flood v. Mitchell, 68 id. 507; Woodman v. Fuller, 80 id. 312; Hickman v. Pinckney, 81 id. 211. In this case plaintiff could not claim to be allowed the contract price less a deduction to defendants for defective performance. The right reserved to defendants to discontinue or to furnish an electrotype plate in case they were dissatisfied did not affect their right to claim performance of the contract on the part of plaintiff. Judgment affirmed. Douchy v. Drake. Opinion by Earl, J.

A policy of life insurance contained a condition that if the person whose life was insured should "die by his own hand or act, voluntary or otherwise," the company should not be liable. The insured came to his death by taking an over dose of medicine, which had been prescribed for him by his physician. In an action on the policy the defense was that the insured died by his own hand, within the meaning of the condition. It appeared that insured was perfectly sane at the time of his death. Held, that the submission to the jury as an open question to say whether or not the insured died by his own hand was not error, there being evidence from which the jury could reasonably find that the insured took the medicine with the intention of bettering himself. Neither was an instruction that in order to sustain the defense the jury must find that the deceased took the overdose for the purpose of destroying his life voluntarily, knowingly and intentionally, it being conceded that there was no evidence of insanity. It would not be a fair interpretation of the condition to hold it to cover the case of a purely accidental death from poison, occurring to a sane person through mistake or ignorance, though his own hand might have been the innocent instrument by

which the poison was conveyed to his lips. A purely accidental act committed by a sane person, with no idea of injuring himself, cannot be regarded as an act of self-destruction within the meaning of such a contract. Suicide is the act stipulated against, and that only. Taking poison by mistake was not. Judgment affirmed. Penfold v. Universal Life Insurance Co. Opinion by Rapallo, J. [Decided May 31, 1881.]

RIGHTS OF REGISTERED POLICY-OWNERS IN ASSETS OF INSOLVENT COMPANY.-The distribution of the special fund deposited by a life insurance company in the insurance department is to be controlled by the statute rather than by any general rules of equity. The statute provides that the fuud is to be applied to the payment of such policies and annuities in proportion to their net value, and that the surplus, if any there be, "with all the other assets of the said company, shall be then applied to the payment of all the just debts of said company. Held, that if the special fund did not realize enough to pay the registered policies in full, the balance remaining upon such policies is a general debt of the company, entitled to share in its general assets. Order affirmed. Atlorney-general v. North America Life Insurance Co. Opinion by Finch, J. [Decided June 14, 1881.]

MARINE POLICY-CONDITIONS IN CONSTRUCTION OF - CARRYING INSURED GOODS ON DECK OF CANAL BOAT-WAIVER. (1) Insurance upon paper carried on a canal boat was effected by indorsement upon an open policy of insurance designated "Uniform Canal Cargo Policy," and the risk was of loss during the transportation of the paper from Troy to Philadelphia. A part of the paper was loaded on the deck, and during the voyage, by an unavoidable accident, the boat careened and the paper slipped off into the water and was injured. The policy contained this: "And it shall and may be lawful for the said boats to load in such manner as is usual and customary for vessels employed in the navigation aforesaid to be laden, without reference to any provisions on the same subject in marine law or custom applicable to vessels laden for sea voyages." It was proved that it was customary to carry paper on canal boats on deck. The policy also contained a provision that the company should not be liable for loss or damage to goods or property on deck unless by special agreement in writing indorsed on their policy." Held, that it is the duty of the court to construc the seemingly inconsistent provisions so as if possible to give effect to both in accordance with the intention of the parties; and if the meaning is ambiguous, that meaning is to be given which is most favorable to the insured. Marvin v. Stone, 2 Cow. 806; McMaster v. Insurance Co., 55 N. Y. 222; Rann v. Insurance Co., 59 id. 387; May on Ins. 181. The meaning of the clauses taken in connection is that goods may be carried on deck if carrying them in that manner is customary, but that goods not usually laden on deck cannot be so carried, and will not be protected by the policy unless in pursuance of a special agreement in writing indorsed on the policy. (2) Before the boat on which the paper was laden left Troy the insurance company's agent, who had possession of the policy, was informed how the paper was laden and was asked to look at it. He said it was all right. Held, that the company having had full knowledge of the manner in which the paper was carried at the inception of the risk, waived any objection it might have on the ground that it was not indorsed on the policy. Shearman v. Ins. Co., 46 N. Y. 526; Richmoud v. Insurance Co., 79 id. 230. Judgment affirmed. Allen v. St. Louis Insurance Co. Opinion by Andrews, J. [Decided June 14, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

JURISDICTION -OF FEDERAL COURT TO ENJOIN ACTION IN STATE COURT.-H. brought action in a State court against K. and replevied property therein, giving a bond for that purpose. Upon the petition of H. the case was removed to the United States Circuit Court, which upon trial gave judgment in favor of plaintiff H. The State court refused to recognize the removal, continued proceedings in the case, and gave judgment in favor of defendant. It then issued a writ for the return of the replevied property, which H. refused to obey. An action was thereupon commenced in the State court by K. against H. upon the replevin bond given in the State court. Held, that the United States Circuit Court could enjoin K. from prosecuting the action upon the bond in the State court. The action on the replevin bond in that court was simply an attempt to enforce the judgment of that court in the replevin suit, rendered after its removal to the United States Circuit Court, and after the State court had lost all jurisdiction over the case. If no judgment had been rendered in the State court against the plaintiffs in the replevin suit, no action could have been maintained upon a replevin bond. The bond took the place of the property seized in replevin, and a judgment upon it was equivalent to an actual return of the replevied property. The suit upon the replevin bond was therefore but an attempt to enforce a pretended judgment of the State court, rendered in a case over which it had no jurisdiction, but which had been transferred to and decided by the United States Circuit Court, by a judgment in favor of the plaintiffs in replevin. The bill in this case was therefore ancillary to the replevin suit, and was in substance a proceeding in the Federal court to enforce its own judgment by preventing the defeated party from wresting the replevied property from the plaintiffs in replevin, who, by the judgment of the court, were entitled to it, or what was in effect the same thing, preventing them from enforcing a bond for the return of the property to them. A court of the United States is not prevented from enforcing its own judgments by the statute which forbids it to grant a writ of injunction to stay proceedings in a State court. The original plaintiff in the action on the replevin bond represented the real parties in interest, and he was a party to the action of replevin, which had been pending, and was finally determined in the United States Circuit Court. That court had jurisdiction of his person, and could enforce its judgment in the replevin suit against him, or those whom he represented, their agents and attorneys. French v. Hay, 20 Wall. 250. Decree of U. S. Circ. Ct., N. D. Illinois, affirmed. Kern v. Huidekoper. Opinion by Woods, J. [Decided April 11, 1881.]

PATENT -SALE OF SURRENDERED ONE, IF REISSUE DESIRED, AVOIDED -- EFFECT OF SURRENDER FOR REISSUE. As the law stood up to July 8, 1870, a patent surrendered for reissue was cancelled in law as well when the application was rejected as when it was granted. The patentee was in the same situation as he would have been if his original application for a patent had been rejected. The law declares in terms that "the specifications and claim in every such case shall be subject to revision and restriction in the same manner as original applications are." Act of 1837, § 8; 1870, § 53; R. S., § 4916. The question of his right to any patent at all was opened anew, the same as upon an original application for a patent. Surrender of the patent was an abandonment of it, and the applicant for reissue took upon himself the risk of getting a reissue, or of losing all. A failure upon the merits, in a contest with other claimants only gave additional

force to the legal effect of the surrender. See Moffatt v. Garr, 1 Black, 273. Accordingly, when a person has contracted to purchase the whole or part of a patent upon its reissue or return, he cannot be held to that contract when the application for a reissue has been denied, and the patent, if returned, is cancelled and void. This is under the old law. In the law passed July 8, 1870, a new clause was introduced, declaring that "the surrender shall take effect upon the issue of the amended patent;" and this clause is retained in section 4916 of the Revised Statutes. What may be the effect of this provision in cases where a reissue is refused, it is not necessary now to decide. Possibly it may be to enable the applicant to bave a return of his original patent if a reissue is refused on some formal, or other, ground which does not affect his original claim. But if his title to the invention is disputed and adjudged against him, it would still seem that the effect of such a decision should be as fatal to his original patent as to his right to a reissue. Judgment of New York Court of Appeals affirmed. Peck v. Collins. Opinion by Bradley, J. [Decided April 11, 1881.]

PRACTICE-AFFIRMANCE ON MERITS ON MOTION TO DISMISS. Rule 6, paragraph 4, as amended November 4, 1878, 97 U. S. VII, provides that there may be united with a motion to dismiss a writ of error or appeal a motion to affirm, on the ground that although the record may show that this court has jurisdiction, it is manifest the appeal or writ of error was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. This is a modification of the rule as originally promulgated May 8, 1876 (91 U. S. VII), when it was confined to motions to dismiss writs of error to a State court. In Whitney v. Cook, 99 U. S. 607, it was held that to justify a motion to affirm under this rule there must be a motion to dismiss and at least some color of right to a dismissal. In Stewart v. Salamon, 97 U. S. 362, it was decided that if an appeal was taken from a decree entered on the mandate of this court, upon a previous appeal, it would, on the application of the appellee, examine the decree entered, and if it conformed to the mandate, dismiss the case, with costs. The motion to dismiss in this case was apparently based upon that ruling. It seemed to the court, when it was up for hearing, to have been made in good faith; and while the court did not think it ought to be sustained, it could not say it was without any color of right. For that reason it felt at liberty to look into the motion to affirm. For the same reason a petition for rehearing was denied. Appeal from U. S. Circ. Ct., S. D. Illinois. Hinckley v. Morton. Opinion by Waite, C. J.

[Decided March 21, 1881.]

STATUTORY CONSTRUCTION-ACT LEGALIZING ISSUE OF MUNICIPAL BONDS, PUBLIC-PRIVATE AND PUBLIC ACTS.- - An act of the Legislature of Illinois which legalizes and makes valid elections held by the people of Macon county, Illinois, on the question of issuing the negotiable bonds of the county in aid of certain railroad companies therein named, and authorizes all the townships in the counties where township organization had been adopted, lying on or near to the line of the Indiana & Illinois Central Railway Company, on certain conditions therein named, to subscribe to the stock of said railroad company, and issue their negotiable coupon bonds in payment thereof. Held, to be even independent of a provision declaring it so, a public act, of which the courts are bound to take judicial notice, and that it need not be specially pleaded. This statute affects not only the people of the county of Macon, and of many of the townships of all the counties lying on or near the line of the railroad designated, but also all persons to whose hands the

bonds issued by the county and township mentioned, may come. Private acts are thus defined by Blackstone: Special or private acts are rather exceptions than rules, being those which operate only upon particular persons and private concerns, such as the Romans entitled senatús decreta, in contradistinction to the senatús consulta, which regarded the whole community, and of these (which are not promulgated with the same notoriety as the former) the judges are not bound to take notice, unless they be formally shown and pleaded. Thus, to show the distinction, the statute 13 Eliz., ch. 10, to prevent spiritual persons from making leases for longer terms than twenty-one years, or their lives, is a public act, being a rule prescribed to the whole body of spiritual persons in the nation; but an act to enable the bishop of Chester to make a lease to A. B. for sixty years is an exception to this rule; it concerns only the parties and the bishop's successors, and is therefore a private act," Wendell's Blackstone, vol. 1, 86. An act passed by the Legislature of Indiana, February 14, 1848, to incorporate the Ohio & Mississippi Railroad Company, provided for subscriptions to the stock of said company by the commissioners of any county through which its road might pass, and an issue of the bonds of the county to pay for the same. This act was declared a public act by this court in Commissioners of Knox County v. Aspinwall, 21 Iow. 539. In Cothren v. McDean, 9 Wis., it was held that a law providing for the location of a county-seat is a general law. The Supreme Court of Indiana, in West v. Blake, Blackf. 236, held that an act authorizing an agent of the State to lay off and sell lots in a particular town, it being the seat of government, was a public act. The court said, "statutes incorporating counties, fixing their boundaries, establishing court-houses, canals, turnpikes, railroads, etc., for public uses, all operate upon local subjects. They are not for that reason special or private acts. In this country the disposition has been on the whole to enlarge the limits of this class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large." On the same subject see Pierce v. Kimball, 9 Me. 54; New Portland v. New Vineyard, 16 id. 69; Gorham v. Springfield, 21 id. 58. Judgment of U. S. Circ. Ct., S. D. Illinois, affirmed. Town of Unity v. Burrage. Opinion by Woods, J.

[Decided Feb. 28, 1881.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

CORPORATION-CITIZENSHIP OF-SERVICE OF PROCESS JURISDICTION OF FEDERAL COURTS. A corporation is, for jurisdictional purposes, to be regarded as a citizen of the State under the laws of which it is organized. Where, by the local law, a foreign corporation is amenable to suit in the courts of the State, service being made upon an agent within the State, the Federal courts may be regarded as courts of the State, and may take jurisdiction upon such service as would be good in a State court. Railroad Co. v. Harris, 12 Wall. 65; Ex parte Schollenberger, 96 U. S. 369; Hayden v. Androscoggin Mills, 1 Fed. Rep. 93; Runkle v. Insurance Co., 2 id. 9; Brownell v. R. Co., 3 id. 761; Williams v. Transp. Co., 14 Off. Gaz. 523; Wilson Pack. Co. v. Hunter, 7 Reporter (Boston), 455. A Federal court has no jurisdiction over a foreign corporation, in the absence of local law conferring jurisdiction on the State courts, though the corporation does business through an agent and has an office within the district where the court is held. U. S. Circ. Ct., E. D. Missouri, March 28, 1881. Eaton v. St. Louis Shakspear Mining and Smelting Co. Opinion by McCrary, C. J.

*Appearing in 6 Federal Reporter.

RESIDENCE OF RIGHT TO MAINTAIN ACTION IN FEDERAL COURTS-NATIONAL BANK-MARRIED WOMAN LIABILITY OF. (1) The Oregon act (Or. Laws, 617), prohibiting a foreign corporation from " transacting business in this State" until it appoints a resident agent therein, was not intended to prevent such corporation from maintaining a suit in the State courts, and it is not in the power of the State to prevent it from maintaining a suit in this court. North-west M. Ins. Co. v. Elliot, 5 Fed. Rep. 225; Cowles v. Mercer Co., 7 Wall. 121. (2) A corporation formed under “the national banking act," is either a citizen of the United States only, or a citizen of the State where it is organized and located. If the former, it is not a foreign corporation in this State; if the latter, it is a foreign corporation, but for that very reason may sue in the National courts herein, irrespective of the State legislation. Ohio & M. R. Co. v. Wheeler, 1 Black. 295; Manuf. N. Bank v. Baack, 8 Blatch. 137. (3) A debt contracted by a married woman is, in equity, a charge upon her separate estate; but if contracted as surety for the benefit of another, the authorities are in conflict whether it creates such a charge, unless her intent to have it produce such effect is expressed in the contract; but in either case, a note given by the wife for the debt of her husband, with a stipulation that the note is taken by the payee "on the credit" of her separate estate, is sufficient evidence of her intention to charge her estate with the payment of such debt. By the English and a majority of the American authorities, it is held that if a wife contract in writing, so as to satisfy the statute of frauds, to pay a sum of money, either as principal or surety, for her own benefit or that of another, it is sufficient evidence of her intention to charge her separate estate, and will create a charge thereon that may be enforced in a court of equity. Bish. Law of M. W., § 870; Bull v. Keller, 13 B. Monr. 382; Deering v. Boyle, 8 Kan. 525; Todd v. Lee, 15 Wis. 365; M. B. of St. Louis v. Taylor, 60 Mo. 338; Williams v. Winston, 9 Rep. 418 (S. C. of Ohio, 1880). But in other States, and notably in New York, it is held that the debt or engagement of the wife, tho consideration for which does not inure to the benefit of her separate estate, does not create a charge upon suid estate, unless her intention to do so is declared in the very contract which is the foundation of the charge. Yale v. Dederer, 18 N. Y. 265; S. C., 22 id. 450; S. C., 68 id. 329; Manhattan B. & M. Co. v. Thompson, 58 id. 80; C. E. Ins. Co. v. Babcock, 42 id. 614. U. S. Circ. Ct., Oregon, May 16, '1881. Orange National Bank v. Traver. Opinion by Deady, D. J.

The

TING INSURED PROPERTY ON FIRE.- - Insured property was destroyed by a fire alleged to have been occasioned by the negligence of the defendant. The insurance covered only part of the value of the property, and was paid by the insurer to the owner. The owner of the property, who was a citizen of Wisconsin, and the insurance company, which was a citizen of New York, joined in an action beguu in the State court to recover the total loss. defendant was a citizen of Wisconsin, and attempted to remove the cause to the Federal court. Held, that the case did not involve a controversy, which, within the meaning of the second clause of section 2 of the Removal Act of 1875, was wholly between citizens of different States, and which could be fully determined as between them without the presence of the plaintiff, who was a citizen of the same State with the defendant; and therefore that the case was not removable under that act. In such a case the insurer at common law must bring action in the name of the assured against the wrong doer. London Assurance Co. v. Sainsbury, 3 Doug. 245; Mason v. Sainsbury, id.