Morrison Waite

“ So that the question here is whether Hiram Cable has by his petition of intervention, after 20 years of litigation between the original parties, introduced a new and separate controversy into the suit, which entitles him on his own application to transfer the whole case to the circuit court of the United States. If Hiram Cable is not to be concluded by anything done in his absence, he ought not to be allowed to force himself into the suit at this late day. No sale made under a decree to which he is not actually or constructively a party can cut off his rights. ”

“ If he can be bound by a decree in his absence, it is because he has been all the time represented in the suit by Philander Cable under whom he claims, and as an intervenor he can do nothing that might not have been done for him by his representative without his intervention. ”

“ That the complainants have some which should have been regarded by the circuit court and decreed to them, we cannot doubt. The bill should not, therefore, have been dismissed. In order that the equities of the complainants may be enforced, it seems necessary that there should be a foreclosure of the Waugh and Ellis mortgage. * * * The pleadings are not framed with a view to any relief as to the Waugh and Ellis mortgage, or as to any substitution of the complainants to the rights of Waugh in the Waugh and Ellis mortgage. ”