were in effect demanaed and received. The complaint does not state what the printed matter was, and it cannot be assumed that the directions for the redemption of the ticket were unreasonable, and it, does not appear but that the plaintiff either has already received the money for it, or may at any time do so. To incur a penalty theremust be an intentional taking and appropriation of excessive fare. H counterfeIt coin were given in making change no action for penalty would lie; and in this case the ticket for five cents given back to the plaintiff shows that no excessive fare was designed to be appropriated by the defendant. Had the ticket not been good for five cents, or had the regulations or printed conditions been unreasonable, the plaintiff was bound to allege these facts. The complaint contains, therefore, but one cause of action, and that for personal injuries, and the demurrer should, therefore, be overruled, with liberty to answer within 20 days, but under the circumstances without costs, and the irrelevant matter in reference to the penalty · . should be stricken from the complaint.
GARDNER 'V. CROSSMAN
Wircuit Court, 8. D. N6fIJ York. August 4, 1881.)
Where no sufficient reason is shown for amending an answer which a general treats as a denial of the existence Qf,the agreement set up in the complaint, the motion to amend will be dellied.
Richards tl Heald, for plaintiff. Scudder tl Gaf'ter, for defendants.
BLATCHFORD, C. J. On more careful consideration I a.m of opinion that my ruling on the objection to cross-question 895 was wrong, and that the objection ought to be overruled. As both parties acquiesced in going on in this court under the complaint and answer in the state court, without the filing of a new bill in equity in this court, and as the plaintiff treated the answer of the defendant as a general denial of the agreement set up in the complaint, by proceeding to prove such agreement as set up, it is proper that it should be so treated by this court. In addition to this I think it is a fair construction of the answer that it denies the existence of the agreement set up in the complaint. The putting in of a general replication to
it so treats it. But I think the defendants must be held to such answer, and that, while they are entitled to all that legitimately flows from it, they are not entitled now to amend it. No sufficient reason is shown for allowing it to be amended, and the motion to amend it must be denied, and an order be entered to carry into effect the foregoing decil:iion.
V. WINDSOR MANUF'a
Co. and another.
(Cirouit Court, D. Vermont. June 21, 1881.)
REMOVAL OF CAUSE-GROUNDS FOR REMAND.
Where there is no allegation as to the citizenship of the orators otheT than the description contained in their original bill, the cause will be remallded.as there is nothing to sustain the jurisdiction of the circuit court.
Aldace F. Walker, for orators. Jesse B. Phelps, for defendants.
D. J. This cause was commenced in the state court. In the orators' bill they are described as of Castleton, in the county of Rutland, in the state of Vermont. The cause was removed into this court on petition of the defendant Lamson, in which he avers himself to be a citizen of Massachusetts, and the cause to be one which can be fully determined as between him and the orators without the presence of the other defendant, but nothing as to the citizenship of the orators. There is nothing in the case on that subjMt further than that description in the bill. That is not a sufficient averment of citizenship to sustain the jurisdiction of this court, as has been held from the earliest times. Abercrombie v. Dupuis. 1 Oranch. 848; Wood v. Wagnon, 9Craneh, 9. The orators have moved to remand for this cause, among On this ground the motion js granted, and the cause is remanded to . the s.tate court.