Gen. v. Cross, 4 Wash. C. C. Rep. 326; Mar-paid $1375 of this sum into the Circuit Court. tin v. Taylor, 1 Wash. C. C. Rep. 1.) 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.

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 We cannot regard Mr. Prevost as voluntarily 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 entitled to the benefit of the statute which he inbill of particulars so as to reduce his claim to vokes. He was called in by the rule to interthat sum, in which case we could not have re-plead, and although he subsequently assented to moved the cause, but he has neglected to do that, the rule being made absolute, I think he should be and the amount in controversy is that originally regarded as if in under a summons. claimed. The order of interpleader by the Court of Common Pleas was general, not confined to the smaller sum.

The rule to remand to the Common Pleas must be discharged. Opinion by BUTLER, J.

(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.

West v. Aurora City, 6 Wall. 139.

See Dillon on Removal of Causes, sec. 13, and note. (2) Besides, the controversy is for less than $500. The original claim in the suit, it is true, was for over $1500; but $1375.90 of that has been paid into court, and therefore the plaintiff's present claim against the substituted defendant 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 original suit was really merged in the new one, which as to substituted defendant, and party removing, the the right of jurisdiction of the federal Court was a wholly "controversy" is fixed by the writ which brought new and distinct action from the moment that Prevost, a him upon the record, viz., the order to inter-citizen of a different State, became the defendant. It would, therefore, seem that under the Act of 1875, the right plead. 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.]

[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. 1) that: "the judicial power shall extend to controversies between citifeller (ante, at 286), STRONG, J. said: "Whatever may zens of different States." In Taylor v. Rockehave been the doctrine held prior to the Act of 1875, that Act has introduced great changes in the law. The first section extends the jurisdiction of the Circuit Court nearly, if not quite, as far as the second section of the third article of the Constitution authorizes, alike in regard to the subject matter of suits, and to the citizenship of the parties." tion (where the amount is sufficient) of all controversies If then it be admitted that the federal Courts have jurisdicbetween 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 becomes a party to a suit, by order of Court permitting an amendment of the record, the suit, as regards his rights, is 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

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.

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

INDEX

ALL THE CASES REPORTED IN THIS VOLUME.

OF

RICHARD C. DALE, Esq.

BY

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-
old, 431.

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 v. 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.
Miller, 553.

AFFIDAVIT OF DEFENCE LAW—Continued.
A bond of indemnity, although supplemented by an
averment of breach of condition. (C. P.) Scott v.
Loughrey, 123.

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.
Dobson, 299.

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 v.
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.
Auer, 447.

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.

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.

AFFIDAVIT OF DEFENCE LAW-Continued. AMENDMENT-Continued.
Affidavit, when sufficient. An affidavit that the A sheriff's return to a writ of summons, which,
plaintiff is indebted to the defendant in the sum of one through mistake, was signed by a deputy only, may
hundred dollars for professional services rendered as be amended anew after a sheriff's sale of real estate
an attorney-at-law, is a sufficiently distinct averment under an execution issued upon a judgment in the case.
of set-off. Lawrance v. Smedley, 42.
(C. P.) Graham v. Furey, 56.

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.

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.

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.
Matthews, 147.

See

ANCILLARY ADMINISTRATION.
DECEDENTS' ESTATES.

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.

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 affi lavit setting out that the indorse-filing a narr. a non pros. may be entered.
ment of the defendant was obtained through the fraudu- Paris v. Hein, 124; Seidel v. Brecker, 135.
(C. P.)
lent representations of the maker, is sufficient to put
the plaintiff on proof that he is a bona fide holder for
value. (C. P.) Poultney v. Baird, 486.

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.
Martin, 52.

Acts of agent, when binding on principal. See IN-
SURANCE. Cochran v. Ins. Co., 498. See MASTER AND
SERVANT.

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.
Godshalk, 32.

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.

APPOINTMENT, power of. See WILL.
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.

AGREEMENT. See CONTRACT.
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.

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
Appeal, 357.

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-
peal, 193.

Assignment for the benefit of creditors. An
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-

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-
peal, 262.

An assignee acting in good faith is entitled to redeem
the property of his assignor from pledge, and will not

ASSIGNMENT-Continued.

BANKRUPTCY-Continued.

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-
peal, 394.