Opinion of the Court.

Quidnick Company, to the trustee, their shares of stock. These transfers, as expressed, were "by way of pledge and collateral security, to secure the performance of the conditions of the trust mortgage." Some question is made as to the meaning of these transfers; but obviously they were all collateral security for the payment of the debts of the transferrers, as provided for in the trust deed. Such was the conclusion reached by the Supreme Court of Rhode Island in the case cited; for they say, "with reference to the stock in question, it was transferred to be applied to creditors, according to the terms of the mortgage." So that we have the validity of the original conveyance by the Spragues, and the immediately subsequent transfers of the stock in question, affirmed by the Supreme Court of the State in which the grantors and transferrers resided, and where the corporation was situate whose stock was thus transferred. This affirmance of the legal validity stands behind, and gives large support to the views which we have hitherto expressed. The law as declared by that court harmonizes with and endorses the equitable considerations which in this case impress us.

We deem it unnecessary to proceed further, or to consider the effect of the equitable suit instituted by the trustee, in the state courts, prior to these attachments, and the possession taken by those courts of the property of the Quidnick corporations, or the sales of that property in pursuance of proceedings had therein. Indeed, we have referred to all these proceedings in the state courts as in support of the equitable considerations upon which we affirm the ruling of the Circuit Court. In conclusion, it may be said that, generally, where a debtor, having large and scattered properties, and being much embarrassed, transfers his property for the benefit of his creditors equally, equity requires that any creditor who is not satisfied with the provisions of such transfer shall act promptly in challenge thereof, or else be adjudged to have waived any right of challenge.

The decree of the Circuit Court is

Affirmed.

MR. JUSTICE BLATCHFORD did not take any part in the decision of this case.

Opinion of the Court.

UPSHUR COUNTY v. RICH.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA.

No. 81. Submitted November 7, 1889.- Decided April 14, 1890.

An appeal, under a state law, from an assessment of taxes to "a county court," which, in respect to such proceedings, acts, not as a judicial body, but as a board of commissioners, without judicial powers, only authorized to determine questions of quantity, proportion and value, is not a "suit" which can be removed from the county court into a Circuit Court of the United States, and be heard and determined there.

THE case is stated in the opinion.

Mr. Alfred Caldwell, for appellant, submitted on his brief, No appearance for appellees.

MR. JUSTICE BRADLEY delivered the opinion of the court.

Rich and others, the appellees, owned a tract of wild land in Upshur County, West Virginia, the exterior boundaries of which are supposed to contain 100,000 acres, and it was assessed for taxation for the year 1883 as containing 100,000 acres, at four dollars per acre. The owners, considering this assessment too high, applied to the county court of Upshur county for a reduction, and after giving notice to the prosecuting attorney for the county, on the 6th of November, 1883, filed the following petition:

"To the honorable the county court of the county of Upshur, in the State of West Virginia:

"The petition of Benjamin Rich, William F. Reynolds and George W. Jackson respectfully shows unto your honors that your petitioners are the owners in fee-simple of a certain tract of land lying partly in said county of Upshur and in the adjoining counties of Randolph and Braxton, but mostly in Upshur county, the exterior boundaries of which tract are

Opinion of the Court.

said to contain 100,000 acres; that said tract of land has been charged and assessed on the land books of the proper district of the said county of Upshur for taxation for the year 1883 as containing 100,000 acres, whereas there are various parcels of land lying within said exterior boundaries which are properly to be deducted from the area therein, and thereby reduce the quantity to be charged to your petitioners for taxation.

"And your petitioners further show that the assessment of said tract of land on said land books is at a valuation of $400,000, which they charge is unjust, extravagant, excessive and illegal, and, as compared with the valuation of lands of like character in said county, wild and unimproved, the said valuation of said tract of 100,000 acres is grossly above and beyond that of adjacent lands.

"Your petitioners therefore pray that the State of West Virginia and the county of Upshur may be made parties defendant to this their petition, and that the said erroneous and illegal assessment be corrected and the quantity charged them, as aforesaid, reduced; and they will ever pray, etc."

On the same day they filed a petition for the removal of the case to the Circuit Court of the United States for the District of West Virginia, alleging themselves to be citizens of Pennsylvania, and that the State of West Virginia and County of Upshur, in the said State, were necessary parties to the said controversy. The petition was grounded upon an affidavit of one of the parties that, from prejudice and local influence, the petitioners would not be able to obtain justice in the state court. The county court refused to order a removal; but on a petition being presented to the Circuit Court of the United States, with a transcript of the proceedings, that court took cognizance of the case, and denied a motion to remand it to the county court.

Thereupon the county court of Upshur County, by two of its members, (being a majority of the court,) filed a plea to the jurisdiction, alleging for cause, that the application of the petitioners for relief in the county court was not a suit, and did not involve a controversy between a citizen of West Virginia and a citizen of any other State; and that, as to the taxes

Opinion of the Court.

belonging to the State, the county court was merely the organ, under the law of West Virginia, to act upon the matter of relief asked for; and the same as to the taxes belonging to the county; and that neither the county nor the State was a party, by process or otherwise, to the said application.

This plea was rejected on motion of the petitioner.

Afterwards the case was heard, and the Circuit Court made the following decree:

"Benjamin Rich, W. F. Reynolds, and George W. Jackson

v.

County of Upshur.

"Upon application to correct an erroneous assessment of lands in the county of Upshur, West Virginia, removed into this court December, 1883.

"This cause having been regularly docketed in this court, this day came the said Benjamin Rich, Wm. F. Reynolds, and George W. Jackson, by their attorneys, and the said county of Upshur, in the State of West Virginia, by Messrs. John Brannon and A. M. Poundstone, who represent the county of Upshur and the prosecuting attorney for said county, and it appearing to the court that the application for correction of the assessment herein complained of was made within the time prescribed by law, to wit, on the 16th day of April, 1883, and that the prosecuting attorney had due notice thereof, and the court, having heard the evidence and seen and inspected the papers and records in the cause, and heard the arguments of counsel thereon, upon mature consideration, doth find " The court then finds the assessment erroneous; that it should have been for only 25,000 acres of land instead of 100,000, and should have been at $2 per acre instead of $4; and ordered it to be corrected accordingly; and decreed further as follows:

"That said Benjamin Rich, Wm. F. Reynolds, and George W. Jackson be, and they are hereby, relieved from the payment of so much and such part of the taxes and levies extended for said years 1883 and 1884 as may and do exceed the amount of taxes and levies proper to be assessed upon

Opinion of the Court.

said lands, as herein and hereby reduced in quantity and value.

"And it is further ordered that copies of this order be certified by the clerk of this court to the county court of Upshur County, the sheriff of said county, the assessor of the first district thereof, and the auditor of West Virginia; and it is further ordered that no costs be taxed for or against either party."

This is the decree appealed from; and the principal objection taken to it is, that the case was not properly removable from the state court to the Circuit Court of the United States. This objection is sought to be sustained on two distinct grounds:

1. That the case is not a suit within the meaning of the removal act;

2. That if it is a suit, within the said act, the State of West Virginia is a necessary party to it.

The act under which the case was removed was the third clause of section 639 of the Revised Statutes, which declares: "Third: When a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, . . . if he makes and files an affidavit, stating that he has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such State Court."

It must be "a suit" between citizens of different States. Is this such a suit? We do not see how it can be called such. The original petition made the State of West Virginia and the county of Upshur parties defendant; and the petition of removal alleged that the State and county were necessary parties to the controversy. If, therefore, the proceeding could be called a suit at all, it was a suit against the State as well as the county, and such a suit is not within the category of removable cases. A State is not a citizen, if a county is.

But is an appeal from an assessment of property for taxation a suit within the meaning of the law? In ordinary cases it certainly is not. By the laws of all or most of the States,