« ForrigeFortsett »
Gen. v. Cross, 4 Wash. C. C. Rep. 326; Martin v. Taylor, 1 Wash. C. C. Rep. 1.)
paid $1375 of this sum into the Circuit Court. But the claim of the plaintiff is not abated thereby. It is not improbable that the issue was intended to be joined on the $215, the remainder of the claim, but it is not so done.
We cannot regard Mr. Prevost as voluntarily
Where the declaration consists of the common counts only, the amount claimed is that fixed by the bill of particulars. The plaintiff, after the order reducing the amount held by the Jefferson Oil Company to less than $500, and before Pre-in the Court of Common Pleas, and not therefore vost was made defendant, could have amended his bill of particulars so as to reduce his claim to that sum, in which case we could not have removed the cause, but he has neglected to do that, and the amount in controversy is that originally claimed. The order of interpleader by the Court of Common Pleas was general, not confined to the smaller sum.
(2) The fact that Prevost consented to the order of interpleader does not deprive him of his right under the Act of Congress to remove the suit.
L. Waln Smith, for the rule, contra. The cause should be remanded, because— (1) The defendant came voluntarily into the State Court. He waived therefore his right to remove the cause.
West v. Aurora City, 6 Wall. 139.
entitled to the benefit of the statute which he invokes. He was called in by the rule to interplead, and although he subsequently assented to the rule being made absolute, I think he should be regarded as if in under a summons.
The rule to remand to the Common Pleas must be discharged.
[The principle stated in the last paragraph of the syllabus, supra, was not argued in this case, and is not noticed in the opinion of the Judge. It seems proper, however, to state it, as, unless conceded, the cause must have been remanded. I am not aware whether or not this point has yet been decided, but it appears so plain that it is difficult to see how an opposite conclusion could be reached. The Constitution of the United States provides (Art. III. ii. sub-sect. I) that: "the judicial power shall extend controversies between citiSee Dillon on Removal of Causes, sec. 13, and note.zens of different States." In Taylor v. Rocke(2) Besides, the controversy is for less than have been the doctrine held prior to the Act of 1875, that feller (ante, at 286), STRONG, J. said: "Whatever may $500. The original claim in the suit, it is true, Act has introduced great changes in the law. The first was for over $1500; but $1375.90 of that has section extends the jurisdiction of the Circuit Court nearly, been paid into court, and therefore the plain- if not quite, as far as the second section of the third article tiff's present claim against the substituted defend-of the Constitution authorizes, alike in regard to the subant is only for $215.45, the balance, which is not sufficient to entitle the defendant to a removal. It is clear that the State Court intended the rule of interpleader to apply only to the $215.45, because the remainder of the sum originally claimed had been paid into the registry of another Court at the time the petition was filed. The Court would take judicial notice of that fact and not make an order which would involve a dispute over a res within the jurisdiction of the Court of another sovereignty. Hence the order to interplead, though in its terms wide enough to cover the whole sum originally claimed, must be read as if only applicable to the sum of $215.45. In that case this Court has no jurisdiction, for though the sum in controversy is fixed between the original parties in Common Pleas No. 2, by the bill of particulars, yet as to Prevost, the substituted defendant, and party removing, the "controversy" is fixed by the writ which brought him upon the record, viz., the order to interplead.
April 4, 1879. THE COURT. The plaintiff's claim as appears from the bill of particulars filed is for upwards of $1500. And this is the amount involved in the issue joined with Mr. Prevost. It is true that the original defendant in the case has
ject matter of suits, and to the citizenship of the parties." If then it be admitted that the federal Courts have jurisdiction (where the amount is sufficient) of all controversies between citizens of different States, and that the right of removal exists, by the Act of 1875, wherever the cause might have been commenced in the federal Court (which was decided in Taylor v. Rockefeller, see head-note, ante, citizens of different States arises, a simultaneous right of at 283), it follows that, whenever a controversy between removal accrues to either party by the Act of 1875, upon a fulfilment of the conditions prescribed by that Act. And this result would follow by analogy. For where one beamendment of the record, the suit, as regards his rights, is comes a party to a suit, by order of Court permitting an as if originally brought against him upon the date when he was made a party. Thus, in the present case, the service of the order making absolute the rule to interplead, and to substitute Prevost as defendant was equivalent to the serthe controversy from that time being between citizens of vice upon him of a writ of summons at Healy's suit, and different States became removable by either party. The original suit was really merged in the new one, which as to the right of jurisdiction of the federal Court was a wholly new and distinct action from the moment that Prevost, a would, therefore, seem that under the Act of 1875, the right citizen of a different State, became the defendant. It of removal, though not existing when the suit was begun, may be acquired by either party during the pendency of the action, provided such a change in the parties takes place as would have given a right of removal if the suit had been originally between those parties. Nice questions may arise as to the time of removal in such a case, and the time might possibly be different, as to the original and new parties.-A. S. B.]
ABANDONMENT. Temporary non-user of a
watercourse will not be treated as an abandonment of
the right to use it. Gordon v. Penna. R. R. Co., 405.
What sufficient evidence of al andonment of build-
ings erected by trespasser. See TRESPASS. Justice v.
Nesquehoning R. R. Co., 374.
ACCOMODATION NOTES. See BILLS AND
ACCOUNT. What a proper case for an account
in equity. (C. P.) Eichart v. Grayson, 298.
ADMINISTRATORS. See DECEDENTS' Es-
Administrator de bonis non cum testamento annexo,
authority of, to sell real estate under power in will.
See DECEDENTS' ESTATES. Jackman v. Delafield, 9.
ADMIRALTY. A decree rendered against a
stipulator after his death in ignorance of that fact is
void and will be set aside on motion. (U. S. D. C.)
The Clara Davidson, 356. See SHIPS AND SHIPPING.
ADOPTED CHILDREN. Rights of inheritance
of. See INTESTATES. Ann Johnson's Appeal, 437.
ADVANCEMENTS. What construed to be.
(0. C.) Wright's Estate, 387.
AFFIDAVIT OF DEFENCE LAW. Gen-
erally. The Acts of Assembly authorizing entry
of judgment for want of an affidavit of defence are not
in conflict with the provision of the Constitution se-
curing the right of trial by jury. Lawrance v. Smed-
The failure of the Prothonotary to note upon the ap-
pearance docket the filing of a copy of original book
entries relieves the defendant from the obligation of
filing an affidavit of defence. (C. P.) Laird v. Potts,
The proper method of raising any question as to the
truth of a copy filed is by ruling the plaintiff to pro-
duce the original. Richardson v. Snyder, 414.
In a scire facias against heirs to revive a judgment
obtained against their ancestor, judgment cannot be
entered against the heirs for want of an affidavit of
defence. (C. P.) Stadelman v. Pennsylvania Co.,
Instruments within the Act. A paper described
as a copy of a book account is not taken out of the affi-
davit of defence law because headed as a bill. The
heading on such bill may be thrown out as surplusage.
Richardson v. Snyder, 414.
A draft accepted in the following terms, "accepted,
payable out of the proceeds of $3000 order when col-
lected." (C. P.) Scott v. Moyer, 447.
An agreement of suretyship whereby the defendant
agreed to pay for material furnished to a third person,
when supplemented by a copy of original book entries
charging such third person. (C. P.) Howell v. Her-
Instruments not within the Act. Where all
the items charging the defendant in a copy of book
entries are of a date more than six years prior to the
institution of suit, the fact that the copy also shows
credits to the defendant by payment on account within
the six years will not entitle the plaintiff to judgment
for want of an affidavit of defence. (C. P.) Newton
v. Smith, 56.
A note drawn to the order of "Susanna ?. Prahl," |
and indorsed "Mrs. Prahl." Prahl . Smaltz, 571.
An award made under an amicable agreement of re-
ference, when the agreement of reference contains
no promise to pay the sum found to be due. (C. P.)
Rex v. Fisher, 558.
A mortgage containing no express promise to pay, in
an action of debt brought thereon. Fidelity Co. v.
AFFIDAVIT OF DEFENCE LAW—Continued.
A bond of indemnity, although supplemented by an
averment of breach of condition. (C. P.) Scott v.
A contract of suretyship supplemented by an aver
ment that certain goods had thereunder been delivered
to the principal debtor. (C. P.) Bunting v. Allen, 157.
A bond to secure to a mortgagee the repayment of
premiums on policies of insurance advanced by the
mortgagee. (C. P.) Gercke v. Montgomery, 238.
An agreement of suretyship in which the time and
amount to be paid are not fixed. (C. P.) Dundore v.
The charter of a building association providing for a
division of its assets among shareholders. (C. P.)
Britten v. Building Asso., 330.
A copy of a book account containing lumping charges
for "mdse." (C. P.) Appel v. Stein, 451.
Although book entries of a physician showing the
date of each visit and the charge therefor may be
within the Act, they are not conclusive of the value of
the services rendered, and if the defendant in an affi-
davit alleges that the charge is excessive, the case
must go to a jury. (C. P.) Thomas v. Askin, 501.
A copy of a lease will not entitle the plaintiff, in an
action for use and occupation, to judgment against a
tenant holding over after the expiration of his term.
(C. P.) Petroleum Co. v. Logan, 502.
A copy of return made by a consignee to a consignor
of the sale of goods consigned to be sold on commission.
(C. P.) Brez v. Stellwagon, 540.
Affidavit, when insufficient. An affidavit of de-
fence to a suit brought on promissory notes against an
accommodation indorser which sets out that the bank
plaintiff had not returned to the maker of the notes
vouchers for charges made on their books against him
six months prior to the date of the note. Cake г.
Northumberland Bank, 121.
An affidavit of defence in an action against a building
association, setting out that an assignment had been
made by the defendant for the benefit of its creditors.
(C. P.) Conolly v. Building Asso., 176.
In an action for arrears of ground rent against a
former owner, an affidavit setting out that prior to the
time when the rent fell due, the defendant had sold
and conveyed the premises to A. without averring any
delivery of the deed. (C. P.) Brolasky v. Furey, 221.
An affidavit of defence setting up a parol surrender
of a lease for a longer period than three years must
show distinctly what the facts are upon which such
alleged surrender is predicated. (C. P.) Penn v.
An affidavit of defence to defeat the rights of the
holder of negotiable paper must set out the facts with-
out equivocation. Lingg v. Blumner, 459.
In an action by an indorsee against the maker, an
affidavit of defence setting up a defence against the
payee and then averring that the plaintiff did not pur-
chase the note "for a valuable consideration," but re-
ceived the same for an antecedent debt, is insufficient
to prevent judgment. Bardsley v. Delp, 479, reversing
same v. same (C. P.), 366.
But if it is averred that the plaintiff received the
note as collateral security for an antecedent debt, the
affidavit is sufficient. (C. P.) Bardsley v. Delp, 539.
In an action upon a building association mortgage,
an affidavit that the mortgagor had executed the mort-
gage upon a promise from the secretary of the associa-
tion that he would be received as a member of the
association, and that the association subsequently
refused to receive him, is insufficient. (C. P.) Build-
ing Asso. v. Gibson, 502.
AFFIDAVIT OF DEFENCE LAW-Continued. | AMENDMENT-Continued,
Affidavit, when sufficient.
An affidavit that the A sheriff's return to a writ of summons, which,
through mistake, was signed by a deputy only, may
be amended anew after a sheriff's sale of real estate
under an execution issued upon a judgment in the case.
(C. P.) Graham v. Furey, 56.
plaintiff is indebted to the defendant in the sum of one
hundred dollars for professional services rendered as
an attorney-at-law, is a sufficiently distinct averment
of set-off. Lawrance v. Smedley, 42.
A similar affidavit, where the alleged set-off was for
services as a dentist. (C. P.) Cook v. Birkey, 503.
On a motion for judgment for want of a sufficient
affidavit of defence, the affidavit cannot be contradicted
by the production of a record in another case. (C. P.)
Feust r. Fell, 43.
In an action by an indorsee against the maker of a
note, an affidavit of defence setting out that the note
was obtained from the defendant by the payee through
a fraud to which the plaintiff was a party, is sufficient.
(C. P.) Bank v. Harkness, 108.
In an action on a note by an indorsee against the
indorser, an affidavit setting out that the note was in-
dorsed by the defendant upon an assurance from the
plaintiff that he would not press the defendant until
all remedies had been exhausted against the maker.
(C. P.) Moore v. Muirhead, 237.
Although the Court has power to amend the record
by adding new parties as co-defendants, it is irregular
to proceed further in the case until such new parties
have been formally notified of the amendment or an
alias summons as to them has been returned “nihil
habet." Dusenberry v. Bradley, 413.
Where a libel for divorce is founded upon the adui-
tery of the respondent, it cannot be amended by
adding a charge of desertion. (C. P.) Matthews v.
ANNUITY. An obscure will charging an annuity
upon lands construed. Varner's Appeal, 409.
APPEAL FROM JUSTICE OF PEACE.
Although the plaintiff may elect to treat the transcript
of a justice as a narr., this election must be formally
In an action by an indorsee against an accommoda-signified of record, and in default of so doing or of
tion indorsee, an affidavit setting out that the indorse-filing a narr. a non pros. may be entered. (C. P.)
ment of the defendant was obtained through the fraudu- Paris v. Hein, 124; Seidel v. Brecker, 135.
lent representations of the maker, is sufficient to put
APPOINTMENT, power of. See WILL.
the plaintiff on proof that he is a bona fide holder for
value. (C. P.) Poultney v. Baird, 486.
APPRAISEMENT. See EXECUTION.
APPRENTICE. A master who requires his ap-
prentice to perform in a variety theatre violates the
Act of 20 Sept. 1770, and the indenture of apprentice-
ship will be cancelled. (Q. S.) Com'th v. Dodge, 214.
APPROPRIATION OF PAYMENTS. See
DEBTOR AND CREDItor.
In an action by a physician to recover charges for
professional services, an affidavit that the charges are
excessive is sufficient to put the plaintiff on proof of
their value. (C. P.) Thomas v. Askin, 501.
In an action against A. upon a book account, where
an affidavit of defence sets up that the articles charged
were purchased by A. and B. jointly, it is error for the
Court without notice to B. to amend the record by
joining him as a co-defendant and then to enter judg-
ment against either or both. Dusenberry v. Bradley,413.
Nor after B. is brought in upon an alias, can judg-
ment be entered with such an affidavit intervening.
(C. P.) Bradley v. Dusenberry, 575.
AGENT. Individual liability of, when acting for
undisclosed principal. See BROKER. Maitland v.
Acts of agent, when binding on principal. See IN-
SURANCE. Cochran v. Ins. Co., 498. See MASTER AND
AGREEMENT. See CONTRACT.
ARBITRATORS. See AWARD.
ASSIGNMENT. The assignee of a municipal
clann is entitled to all the incidents thereof as to pre-
ference which the municipality possessed. Hageman's
The partial assignment of a contract with a munici-
pality is not binding on the municipality without its
express consent, although an assignment of an entire
contract would be binding. City of Philadelphia's Ap-
Assignment for the benefit of creditors.
assignment of judgments to an attorney-at-law of cer-
tain creditors "in payment" of their claims is an assign-
ment for the benefit of creditors, and subject to the pro-
visions of the Acts relating thereto. Wallace v. Wain-
AMENDMENT. A Court has the power to cor-
rect the clerical errors of its clerk in entering a judg-wright, 550.
ment, although the term has passed in which the entry
was made. Overseers v. Overseers, 380.
Where a married woman appeals from a judgment
obtained against her before a justice of the peace, the
Court will permit the record to be amended by making
her husband a party defendant. (C. P.) Orth v.
When the name of a wife as co-claimant with her
husband before the Orphans' Court may be stricken
out. (C. P.) Williamson's Estate, 576.
No material amendment of a mechanic's claim can
be made after six months from the completion of the
work. Rynd v. Bakewell, 167.
A mechanic's claim may be amended as to matters
immaterial, although six months have elapsed. from
the time of filing. Church v. Schreiner, 407.
An execution for costs against a libellant in divorce
against whom a judgment has been entered should be
issued against her by the name under which she sues,
but if otherwise issued the writ will be amended on
motion. (C. P.) Brincklé v. Brincklé, 205.
The Court in such a case will construe the whole in-
strument so as to arrive at the intention of the parties
and not be deceived by the mere use of words. Ib.
An assignment by a building association for the
benefit of its creditors does not prevent the entry of
judgment against it as a defendant. (C. P.) Connolly
v. Building Association, 176.
Although a debtor assign all his property for the
benefit of his creditors without reservation, he will be
entitled under the Act of 4 May, 1864, to retain house-
hold furniture or things of domestic use of the value
of $300. (C. P.) Van Gunten's Estate, 345.
A bank is entitled to set off the amount of unmatured
notes against the claim of an assignee for the benefit
of creditors for the deposit of his assignor. (C. P.)
Stewart's Assignee v. Bank, 399.
An assignee for the benefit of creditors is a mere
volunteer and not a purchaser for value. Kent's Ap-
An assignee acting in good faith is entitled to redeem
the property of his assignor from pledge, and will not
be surcharged even though the property does not finally cation of the petitioning partners. (U. S. D. C.) Citi-
produce the amount advanced upon it. Ib.
zens' Bank v. Cass, 371.
An assignee for the benefit of creditors has no status
to appeal from a decree made upon his account so as to
interfere with the distribution made among creditors.
Singmaster's Appeal, 14.
A bank which is in the habit of forwarding checks
and drafts to a corresponding bank for collection is not
entitled to preference as a depositor in the distribution
of the assets of the latter bank under an assignment
for the benefit of creditors. Parkesburg Bank's Ap-
Non-resident petitioners who cite an assignee for the
benefit of creditors to file an account can be compelled
in the discretion of the Court to enter security for costs.
(C. P.) Tyndall's Estate, 562.
ATTACHMENT under the Act of 1869, what
sufficient evidence of fraud to sustain. (C. P.)
lin v. Einstein, 398.
Attachment-execution. See EXECUTION.
Attachment, foreign. See FOREIGN ATTACHMENT.
ATTORNEY-AT-LAW. Admissions made by
an attorney-at-law out of court will not bind his client
unless the authority of the attorney to make such ad-
missions be expressly shown. Snyder v. Armstrong,
An unauthorized agreement by an attorney-at-law
that his client would assume the payment of a certain
mortgage is not binding upon the client, although upon
the faith of this agreement the other party permits a
judgment to be opened. Thomas v. Wiltbank, 477.
Where the measure of compensation for professional
service is in issue, and there is no other standard of
value, evidence of current legal charges for similar
services is admissible, and upon this evidence the
question must be submitted to the jury. Thompson v.
Commission clause in mortgage.
Maitland v. Daly, 31.
AUDITOR, power of. An auditor appointed to
distribute a fund cannot inquire into the validity of a
judgment regular upon its face. Second National
Bank's Appeal, 153,
AVERMENTS, effect of. See AFFIDAVIT OF DE-
AWARD OF ARBITRATORS. The lien of
an award of arbitrators filed before the beginning of
bankruptcy proceedings is not divested by a subse-
quent discharge of the bankrupt. Tinstman v. Flen-
An award of arbitrators is not an instrument within
the affidavit of defence law. (C. P.) Rex v. Fisher,
The filing of a petition in bankruptcy by a debtor is
not a bar to proceedings against him by creditors in a
State Court until there has been an adjudication.
(C. P.) Murphy v. Young, 317.
A discharge of a debtor in bankruptcy will not divest
the lien of an award of arbitrators filed before the be-
ginning of bankruptcy proceedings. Tintsman v. Flen-
A claim for damages for personal injuries resulting
to a passenger through the negligence of a railroad
company, does not pass to the assignee in bankruptcy
of such passenger. Rand v. Fleishman, 497.
The sale of the lands of a bankrupt by his assignee
will not divest the dower of the bankrupt's wife. La-
zear v. Porter, 321.
A creditor of a bankrupt holding collateral securi-
ties may have them appraised, prove his debt for the
balance, and then proceed upon the collateral.
Streeper v. McKee, 169.
The fact that the collateral is appraised at a nominal
value does not affect the creditor's rights. Ib.
An adjudication in bankruptcy of the defendant
cannot be given in evidence under the plea of not
guilty; it must be specially pleaded. (C. P.) Weiler
v. Lockheim, 191.
BANKS AND BANKING. As between the
depositor and his banker a check drawn by the depos-
itor operates as an appropriation of the fund from the
date of its presentment, and the banker cannot refuse
to receive it in payment of an independent debt due
by the depositor to him. Lanback v. Leibert, 80.
A bank is entitled to set off unmatured paper of a
depositor against the claim of the assignee of the de-
positor to recover the balance, as existing at the time
of the assignment. Stewart's Assignee v. Security
Who are not depositors entitled to the preference in
the distribution of the assets of an insolvent bank,
provided for by the Act of 16 April, 1850. (C. P.)
Foulker v. Union Banking Co., 109. Parkesburg
Bank's Appeal, 394.
National Banks. State Courts have jurisdiction
of an action brought to recover from a national bank
the penalty for taking usurious interest.
Columbia Bank, 1.
The reservation of usurious interest by a national
bank operates as a forfeiture of the entire interest;
but of this the debtor alone, and not his creditors, can
take advantage. Titusville Bank's Appeal, 153.
National banks may take such rate of interest on
loans made by them as any State bank of issue doing
business in the State is authorized by law to take,
either by general or special Act. (U. Š. C. C.) Bank
v. Duncan, 158.
Sureties upon the bond of a bank messenger are
responsible for the dishonest act of their principal in
opening and robbing the safe of the bank, the key to
which was left in his custody. German Bank v. Auth,259.
BENEFICIAL SOCIETY. Payment of funeral
expenses by. See DECEDENTS' ESTATES. Nixon's Ap-
BILLS AND NOTES. Promissory notes given
by a principal to a stock broker, to cover losses incurred
by the broker in stock gambling on the principal's
account, are void. Fareira v. Gabell, 490.
A promissory note given in payment for a patent
right, although not marked as provided by the Act of
12 April, 1872, is valid in the hands of a bona fide
purchaser. Castner v Green, 176.