suit on the opposite sides of that dispute. "If completed the Potomac, Fredericksburg, and | pied by the parties on the record as plaintiffs or Piedmont Railroad, had, on account of financial defendants in the suit, will ascertain what is the embarrassments, assigned their contract, together matter in dispute, and arrange the parties to the with a controlling interest in the stock of the Royal Land Company, a corporation which had purchased the railroad, to respondents, Walter and Hite, as collateral security for money advanced, and in trust to sell the road, reimburse themselves and the complainants, and pay the surplus to the Royal Land Company; that Walter and Hite had, in conjunction with the Royal Land Company, which they controlled by means of complainants' stock, made, in fraud of the trust, a formal sale and transfer of the said road to respondent, L. Harry Richards, for a nominal consideration, but upon a secret trust for their own benefit; that Richards, acting as their agent, had contracted to sell the road to respondents, The Atlantic and Ohio R. R. Co., for $300,000. Complainants prayed for an injunction to restrain the purchaser from paying the consideration to Richards, and for a receiver to receive the consideration money, and to hold it until final hearing. The Court, after a hearing, granted a preliminary injunction, and appointed a receiver. Respondents then filed a demurrer to the bill, on the ground that the Court had no jurisdic tion. George Tucker Bispham, Geo. L. Crawford, and Geo. M. Dallas (with them T. Elliott Patterson and Hugh W. Steffey), for the demurrer. This Court has no jurisdiction of the case, as on the face of the bill it appears that certain of the defendants are citizens of the same State with the plaintiffs, to wit, Pennsylvania. Under the Judiciary Act of 1789, it was necessary that all the defendants should be citizens of different States from the plaintiffs. Strawbridge v. Curtiss, 3 Cranch, 267. If, then, this Court has jurisdiction, it must be by virtue of sect. 15 of the Act of 3d March, 1875, which vests in the Circuit Court jurisdiction of all "suits of a civil character, etc., in which there shall be a controversy between citi zens of different States." This clause is repeated verbatim in sect. 2 of the same Act, providing for the removal of causes, and it has been decided that they must receive the same construction in the one case as in the other. Pacific R. R. Co. v. Ketchum, 11 Otto, 298. Dormitzer et al. v. Ill. & St. Louis Bridge Co., 6 Taylor v. Rockefeller, 6 WEEKLY NOTES, 283. But if on such arrangement it appears that any two parties on opposite sides of the dispute are citizens of the same State, the Circuit Court is without jurisdiction, and the cause will be remanded to the State Court. Blake v. McKim, 13 Otto, 336. Ins. Co. v. Keogh et al., 7 Fed. Rep. 764. In the present case five of the defendants are citizens of the same State with the plaintiffs. All the five are necessary parties to the matter in controversy as well as to the suit, and all are of necessity opposed to the plaintiffs. It is submitted, therefore, that the Court is without jurisdiction, and that the bill should be dismissed. Joseph De F. Junkin, E. Coppée Mitchell, and George Junkin, contra. By virtue of Art. III., Sec. 2, of the Constitution, the judicial power of the United States is extended, inter alia, to all cases in law and equity arising between citizens of different States. States Courts were given jurisdiction of suits beBy the Judiciary Act of 1789, the United tween a citizen of the State where the suit is brought and a citizen of another State. The construction placed upon this Act was, that no suit could be brought where there were citizens of the same State on both sides of the contro ferred further powers upon the Courts in the By the Judiciary Act of 1875, Congress convery words of the Constitution. Now if the Act of 1866, which has been expressly decided to be within the constitutional limit, gives jurisdiction in a case like this, surely the Act of 1875, in the very words of the Constitution, will include what was given by the lesser Act. The construction given to this clause in the 3d section of the Act of 1875 has been that the jurisdiction of the Circuit Court is thereby so The decisions against the jurisdiction of the far enlarged, that it will now look behind the Federal Courts in cases arising under the second pleadings, and disregarding the position occu-section of the Act of 1875 do not apply, since in those cases much stress is laid upon the pro- | one exclusively between citizens of different vision in the second clause, that the removal States; where all the defendants reside in a shall take place only when the controversy is State other than that in which plaintiffs reside; wholly between citizens of different States. This word "wholly" is absent from the first section, under which the present case arises. The only reported decision in reference to the first section is that in Nat. Union Bank v. Dodge (25 Int. Rev. Rec. 304), where the Court held that the jurisdiction was not lost because there might be found in the suit as necessary parties one or more defendants of the same State with the plaintiffs. C. A. V. that where one or more reside in the same State as a plaintiff the Court has no jurisdiction; that it is only where a controversy exists between citizens exclusively of different States that the Court has jurisdiction. This construction of the second section must be taken as the construction of the first. The Court has in two instances said so. But without this the construction must be the same. An argument was pressed upon us, based on the second clause of the second section, intended to show that this clause contemplates a more extensive jurisdiction than I have indiOctober 19, 1881. BUTLER, Dist. J. (Oral cated, as conferred by the first clause of this opinion.) When the bill in this case was first section. The argument was, that if the second presented, it was observed that the plaintiffs clause conferred such jurisdiction, it must be were citizens of Pennsylvania, that some of the referred back, for it could hardly be contemdefendants were citizens of Virginia and some plated that the Court should exercise a more citizens of Pennsylvania. The question of juris- extensive jurisdiction in cases of removal than diction at once presented itself to the Court, in cases where suit was directly brought in the and the attention of counsel was called to it. Federal Court. In the Removal Cases, cited, Effort was made to obviate the objection by the Court did not feel called upon to construe the amendment, and the case was argued upon second clause of the second section. I find, the motion for preliminary injunction. The however, in the last volume of Reports a case in Court did not think the amendment effected which this clause has received a construction by any change, and again called the attention of the Supreme Court, viz., that by it Congress incounsel to the subject, being reluctant to retain tended to import into the Act of 1875 the projurisdiction of the case, and especially to grant vision made by the Act of July 27, 1866 (Stat. an injunction where there was room for serious at Large, vol. xiv. p. 306), that where there question as to the jurisdiction. I entertained are several defendants, some residing in the doubt as to whether it was not my duty before granting the injunction to consider and pass upon the question, but I resolved that inasmuch as counsel for respondents did not raise the question, there might be more room for doubt than I saw. Counsel did not raise the objection, and the injunction was granted. I took care in the opinion to say that the action of the Court was based only upon the questions discussed. Subsequently the question of jurisdiction was raised by demurrer. The impression entertained at the outset has, after listening to the discussion, and after careful consideration, deepened into conviction, which is shared by Judge McKENNAN. In my judgment the matter is not open to doubt. Our jurisdiction must be referred to the Act of March 3d, 1875. The language of the first section of this Act is identical with that of the first clause of the second section. The first section has never heretofore called for construction by the Courts. The second section repeatedly has, and the decisions of the Supreme Court upon it have been uniform. In the Removal Cases (10 Otto, 469) although the Judges were not unanimous, a majority held that the statute gave jurisdiction only where the controversy was same State with the plaintiff and others in different States, and there are several distinct controversies in the suit, the parties to the distinct controversies residing in different States may ask for a removal (Barney v. Latham, 13 Otto, 205). The Court further holds that the Act of 1875 goes beyond the Act of 1866, and authorizes the transfer of the entire suit; so that the parties being as above, and there being a severable controversy between citizens of the same State and a controversy between citizens of dif ferent States, the Act of 1875 authorizes a removal of the entire suit. So that it is true that the second clause of the second section of the Act of 1875 does confer in cases of removal a jurisdiction more extensive than that conferred by the first section. But even if the present suit had been brought in a State Court, it could not have been removed, because there is here but a single controversy—a controversy between all the plaintiffs and all the defendants. MCKENNAN, Cir. J. (Orally.) The conclusion arrived at by Judge BUTLER is the result of our joint consideration of the question, and I concur in what he has said. Bill dismissed. WEEKLY NOTES OF CASES. the following question: "To what extent was Allegaert's business interfered with by Herzman's store?" Objected to; objection sustained; exception. Plaintiff requested the Court to charge as fol VOL. XI.] THURSDAY, FEB. 16, 1882. [No. 11. lows: "If the jury find that Herzman's store Where a landlord leases premises to a tenant for the carrying on of a certain business, and covenants that he will not, during the term of the lease, lease other adjacent premises to other parties for the carrying on of a similar business, a breach of the covenant by the landlord is not a forfeiture of the right to the rent. The tenant injured by such breach of covenant is not entitled to set off his damages in replevin upon a distress for rent levied by the landlord, but may have a reduction of the amount of the rent, proportioned over the whole period of the lease. Error to the Common Pleas No. 2, of Philadelphia County. Replevin, by Peter Allegaert against John Smart. On the trial, before FELL, J., the following facts appeared: In 1875 John Smart, being the owner of all the stores on the west side of Eighth Street, between Race and Maple Streets, Philadelphia, leased the stores and dwellings Nos. 204, 206, and 208 North Eighth Street, and the dwelling over No. 2081⁄2 to John Allegaert, for five years, for a millinery store, at the monthly rent of $354, covenanting, inter alia, as follows: "The said John Smart agrees not to rent any of the remaining stores from Race to Maple Streets for the millinery business during the term of this lease." During the continuance of said lease defendant leased one of the remaining stores, being No. 2081⁄2 North Eighth Street, to D. Herzman, for the millinery business, and said Herzman entered into possession of said store, and carried on the millinery business there. On October 1, 1879, while Herzman was carrying on his business in the premises leased by him, a month's rent became due under the Allegaert lease. This Allegaert declined to pay, whereupon Smart distrained upon certain goods on the premises, to replevy which the writ was issued in this case. On the trial, plaintiff called Henrietta Swartz, one of his employés, as a witness, and asked her was rented for the millinery business, and the millinery business was carried on in the store leased by Herzman at the time of this distress, then the verdict should be for the plaintiff." Refused. The Court charged, inter alia, as follows: "The leasing of the adjoining store to Mr. Herzman was a violation of the agreement previously made with Allegaert. [This, however, did not release Mr. Allegaert from the payment of rent. He could not remain and pay nothing, but he The may be entitled to a reduction.] measure of which reduction is the difference between the rental value of the premises occupied by Allegaert, after Herzman took possession of the store leased by him, and the rent reserved by the lease." Verdict and judgment for defendant for $300. (See 10 WEEKLY NOTES, 260.) The plaintiff then took this writ, assigning for error the exclusion of the above question, the refusal of the point presented by plaintiff, and the part of the charge included within brackets. Theodore F. Jenkins, for the plaintiff in error. The restriction upon the right of the landlord to let any of the adjoining stores for the millinery business, was of the very essence of the lease to Allegaert. The violation of such a condition cannot be compensated for by damages, and would, on that account, be restrained in equity. Story's Eq. Jur., 722 a. Where a landlord claims and uses privileges against the tenant's consent, it is incumbent on him to show that he reserved them, otherwise he suspends the rent. Vaughan et al. v. Blanchard et al., 1 Yeates, 175. An interruption of the enjoyment of a privilege conferred by the lease, by physical means adopted by the landlord, constitutes an eviction, and suspends the rent as well as the remedy of the lessor for the recovery of possession. Peck v. Hiler, 24 Barb. 178. If, however, the violation by the landlord of his covenant does not suspend rent altogether, it gives the tenant a right to recoup his damage for such breach, the proper measure of which is the profit he would have made if the contract had not been violated. Hoy v. Gronoble, 10 Casey, 9. Garsed et al. v. Turner, 21 Smith, 56. The cases of Obermeyer v. Nichols (6 Binn. Fairman v. Fluck (5 Watts, 516), and 159), Prescott v. Otterstatter (29 Smith, 462), differ A writ of quo warranto is not a writ of right, and the from the present case, in so far that the cove-Courts are not bound to issue it except in the exercise nants were for privileges in futuro, and not for of a sound discretion. Under the circumstances of the present case, the Court below rightly exercised its discreprivileges in esse. tion in refusing to grant the writ. Wm. C. Hannis, for defendant in error. Where no bad faith is charged, the breach of covenant is analogous to the case of a partial eviction where, when the tenant remains in pos, session of part of the premises, he must pay a fair rental value of the premises actually occupied by him. Seabrook v. Moyer, 7 Norris, 417. Linton v. Hart, 1 Casey, 193. Allegaert v. Smart, 10 WEEKLY NOTES, 29. This case is governed by, and the measure of damages is correctly shown by Obermeyer v. Nichols, 6 Binn. 159. Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411. Prescott v. Otterstatter, 29 Smith, 462. January 30, 1882. THE COURT. The charge in the matters complained of and the rejection of the evidence were entirely right. The breach of the covenant by the landlord was certainly no forfeiture of the right to the rent. Nor could the damages be set off in replevin. The only effect, according to Fairman v. Fluck (5 Watts, 516), Warner v. Caulk (3 Whårt. 193), and Prescott v. Otterstatter (29 P. F. Smith, 462), was, that there should be a reduction of the amount of the rent, proportioned over the whole period of the lease. Judgment affirmed. PER CURIAM. Quo warranto-Act of June 14, 1836, Sec. 2— What interest necessary in relator-Issuing of writ discretionary with Court-Constitutional law--Constitution of Pennsylvania, Art. VII. -Act of April 18, 1874, Sec. 1. A., a police constable commissioned for a certain term, was removed from office by the mayor of the municipality. He thereupon petitioned for a writ of quo warranto directed to said mayor to inquire by what authority he held his office; averring as a reason for issuing the writ that although the mayor had, upon entering into office, taken the oath customary in the municipality, he had failed to take that specified in Art. VII. of the Constitution: Held, That the relator, being a mere private citizen, having no interest in the office of mayor, nor any absolute title to be restored to the office of which he had been deprived in the event of the respondent's ouster, was not entitled to the writ by virtue of the provisions of the Act of June 14, 1836, Sec 2 (P. L. 623). Error to the Common Pleas of Erie County. Petition by the Commonwealth ex relatione Francis Healy and Richard M. Butterfield, citizens of the city of Erie, for a writ of quo warranto directed to Joseph McCarter, requiring him to show by what authority he holds and exercises the office of mayor of the city of Erie. The relator, Healy, afterwards withdrew from the proceeding, and Butterfield remained the sole relator. A rule to show cause was granted. The facts as set forth in the petition and answer were as follows: Butterfield was, on Feb. of the city of Erie, for the term of twelve 25, 1871, duly commissioned a police constable months from Jan. 31, 1871, and served as such until July 9, 1881, when he was discharged by the respondent, acting as mayor of said city. The respondent was duly elected mayor at a municipal election held the third Tuesday in February, 1881, for the term commencing on the first Monday of April, 1881, on which day he appeared at the Common Council room, when an oath was administered to him by his retiring predecessor in office, in the following form : "I do swear that I will support the Constitution and laws of the United States, and of the Commonwealth of Pennsylvania, and that I will well and truly discharge my duties as mayor of the city of Erie, Pennsylvania, for the term for which I am elected, to the best of my knowledge and ability. "JOSEPH MCCARTER. "Sworn and subscribed this 4th day of April, A. D. 1881. DAVID T. JONES, Mayor." "[L. S.] The relator averred that said oath, not being the oath required by Art. VII. Sec. 1, of the Constitution, and by the Act of April 18, 1874 (P. L. 64), the respondent has no right in law to hold and exercise the office of mayor; that the said order discharging the relator was invalid, and that the relator was entitled, under his commission, to exercise the duties and receive the emoluments of police constable during the term for which he was commissioned. The respondent, in his affidavit, averred that at the time of taking said oath he was ignorant John P. Vincent, for the defendant in error. of the requirements of the Constitution and Act that the writ would not lie at the suggestion of of 1874, as to the form of oath, that the oath an individual against one holding the office of taken by him was presented to him as the proper Judge of the Court of Common Pleas. Chief oath, and he believed it to be such, and that he Justice GIBSON, in the course of his very exdid not intend to evade taking the legal oath. haustive opinion, carefully indicated that the That he dismissed the relator because he was not clause in the second section of the Act of 1836, performing his duties as they ought to be per- which authorizes the issuing of the writ on the formed, and that such action was in pursuance of suggestion "of any person or persons desiring to the power and authority vested in him as mayor. prosecute the same," was not intended for the reThe Court entered a decree dismissing the peti dress of a public wrong. He distinctly held that tion, and discharging the rule to show cause, on these quoted words "were judiciously added to the ground, inter alia, that the writ of quo war- provide, in imitation of the statute of Anne, for ranto could not be invoked to try the right to cases in which the public interest might not be the office of mayor, by a private individual, or involved, and in which the Attorney-General by one claiming to be entitled to the office of might not be willing or bound to prosecute." police constable. The relator thereupon took On page 39 he said: "But that there was no dethis writ, assigning for error the above decree. sign to let a private citizen prosecute for a pubHenry Butterfield (William Benson with him), lic wrong, is plain from the third section, which for the plaintiff in error. commands the Attorney-General to file the suggestion and prosecute the writ where an unchartered association shall have usurped the Commonwealth's franchise, by acting as a corporation. On the usurpation of a municipal or corporate office, as I have said, no franchise or exclusive right of the Commonwealth is invaded; and the intervention of a private prosecutor was extended to it, but not as a remedy for a public wrong." This case presented the question of the right of a private prosecutor to invoke the writ as against the incumbent of a public office. In the cases of Commonwealth v. Allegheny Bridge Co. (8 Harr. 185); Murphy v. Farmers' Bank, of Schuylkill County (8 Harr. 415), and Commonwealth v. R. R. Co. (8 Harr. 518), the right of a private relator was denied, to demand the forfeiture of the franchises of a corporation. It was emphatically held that no mere private person, unless he had a private grievance to redress, could be heard on a writ of quo warranto; and in no circumstances could he be allowed to claim a forfeiture of the charter. On page 190, LOWRIE, J., said: "We do not hear a private relator in this Court claiming to forfeit a charter, and he has no right to such action in any Court where he stands as a mere informer without interest." On page 518, Lewis, J., said: "It has been decided in the Commonwealth ex rel. Murphy v. the Farmers' Bank of Schuylkill County (see ante, 415), that a stranger, who has no interest in a corporation, except that which is common to every citizen, cannot demand a judgment of ouster in a writ of quo warranto. The words, 'any person desiring to prosecute the same,' are in that opinion construed to mean, any person having an interest to be affected, or suffering a wrong to be redressed." November 7, 1881. THE COURT. Two persons describing themselves as citizens of the city of Erie, in the county of Erie, in this State, presented their petition to the Court of Common Pleas of Erie County, for a writ of quo warranto against the respondent, as Mayor of the city of Erie, to inquire by what authority he holds and exercises that office. Healy, one of the relators, subsequently presented a petition asking leave to withdraw from the proceeding, and Butterfield, the remaining relator, filed an amended petition, setting forth that he was a police officer of the city of Erie, and had been dismissed from his office by the respondent. It appears from Healy's petition to withdraw, that he also was a police officer who had been dismissed; that he had no desire to join in the proceeding, and only consented to do so in consequence of the importunity of Butterfield; and upon the promise of the latter that he should incur no cost, trouble, or expense by joining with him in the petition. It thus appears that the relators are mere private citizens, having no interest in the office of mayor, nor any absolute title to be restored to their positions as police officers, in the event of the ouster of the respondent. A rule to show cause was granted by the Court below, which was subsequently discharged at the cost of the relator, who thereupon removed the case to this Court by writ of error. We are clearly of opinion that the action of the Court below, in refusing the writ of quo warranto, and discharging the rule to show cause, was right, and for various reasons. The remedy by quo warranto has been much considered by this Court, and the circumstances in which, and the persons by whom, it may be invoked, have been clearly defined. It was long ago held in the case of Commonwealth v. Burrell (7 Barr, 34), "No mere stranger should be permitted to demand the forfeiture of a charter granted by the Commonwealth when the State herself does not demand it." In the case of Murphy v. The |