Ct. Rep. 498,. As thedefendant8had no right to try that right over again,this second removal waS ,improper, and this motion to remand must be granted. . The defendants ask a stay of proceedings for 20 days to enable them to take an appeal if this motion is granted. No stay is thought to be necessary, however, for that purpose, other than that provided for by section 1007, Rev. St. U. S. Motion granted.
PREI,PS ,tJ. ELLIOTT.
(Circuit (Jourt, 8. D. Net/} j'"ork.
March 16, 1887.>
)D'.tOJldflP.t :answer.ed. the $ftel'illo ;J;l&Jjled
Slle w.as joined by plication. There,b!V, but. not served .with'.process, became
when the dismissal as to his co-defendant had position. in WJ!.iep b:I1,.ll.t. 99R ..t . of.. . andl1nyquestion which coUld be ,raIsed.by mIght be 1ina1 hearmg. ,
In Equity. I Herbert B. Tit'U8, for plaintiff. William G. Ohoate, for defendant.
WHEELER, J. The defendant has answered the biil, and issue has belm joined Since the joinder of isStiij, one Kieckhoefer, named in the bill, but not served with process, became a. Pl1l'ty defend. ant, and demWTed to the bill. His demurrer was sustained on a stat. ute of limi14tioils,' and the bill dismiSsed as to him. 29 Fed. Rep. 53. On settlement of the order it was claitned that the bill, on the adjudication of insufficiency as to Kieckboefer, should he dismissed as to all, which was ,The defendant then moved for leave to amend his answer, which was denied. He now moves for leave to withdraw his answer and demur. This motion is urged principally upon the ground that a new case ,has been made by what Kieckhoefer .has done in it. The case does' ndll, however, appear ·to stand differently Udw from the manner in which it stood when the defendant answered the bill. Kieckhoefer was. not a party then, and is not now. If he was a necessary party wheri. he became one, has been since, he was when the defendant answered; lind his absence. as a grouIid Qf demurrexwas the same then as now.:That Kieckhoefer'sdemurrer was sustained does not show that one by the 'defendant be, for the suit was commenced against the defendanto.bout two years befoteKieckhoefer became a party toit. If themotioriTshould be granted; and the demurrer be overruled; the defendant ivdtild then,' by equity rule 34, be entitled td answer the bHl again, Thus inditectly he would obtain that which the court .has
SPIES '11. 'CltICAGO &: E. :I;n. CO.
fused to grant when aSkM:fordirectly. It is not understood that any question.' 'can be raised by ilemurrer to the bill that cannot be raised on final hemng on bill, answell, a.nd proofs. The righteof the parties are supposed to stand upon the I!ufflciency of the a.llegations in the bill throughout. A demurrer would be an experiment. The saving which might bl'l made in expense by it is not made to appear to be sufficient to warrant trying . Justice can probably be as well dorieby pursuing the usual course, on whicll the defendant ·started. Motion denied.
& E. 1. 'R.
(GfrC1,dtOourt, B. D. NetJJ York. Mareh21,l887.)
<\ ,: i:Ul
«\e-ttd oHr!U!t, the defendant e0qlPa,py t() . JIlents on Its part eontamed the deed of trust, aIidnot seelung ,to reaeli III ,any Wi!.ythe secUrity tirotitled in said deed, or .the in'eome;Of th6'road;'1tirough thUTJghts or powersad',the truatee, the lat,ter IS not a. ueC8I8&g );lar'y.
an "etlan by'!Io holder of the bonds of a railroad company. s8Curedby a
IQ -Et\'I1ity; On dea:turrer to bill. John W. Weed, for plaintiff. ' A:I,l.8te1tG. Fox. for defendant.
WaEELER,J. The bill allllges, in substance, that the dlefendlarit issuedbondsof$l,OOO eacb,-lo'tbe amount ofSl,OOOjOOO, byea:ch dfwhich it promised to pay the bearer the principal sum of $l,OOO'onthenrst December, 1907, and such interest on the first day of ,December annually, if any, as should be declared and fixed by the ;boaid ofdl. reetors,not exceeding 7 per cent., in accordance willma deed of trust to a trustee pledging and appropriating the net income and earnings oLthe road of the defendant as security for the payment of the principal and interest; that the deed of trust provides that the directors shall, in the ascertain, fix, and declare what amount of month of October to the payment of net earnings of the preceding yeatis interest on these bonds; that, if they adjudge that a specific sum is available for that purpose, they shall enter a resolve in the nature of a final aWllrd declaring what sum is available out of thatyear?snet,earningsf6'rthat and the .rate of interest payable bond; thlltthe pllyttient shall be adVertised; that the defeiidant willpromptly 'furnish the funds necessary to make the payment, and set ,apart so much netearnings as a specific trust fund for such payment; and that, if 'the 'defendai}tehall faiI to aeposit the full suih '00 pay the interest in any. year,the trustee shall havepower,athis iHscretion, and u,pon. the w:ritten request ,Of the,' of a IIiltj&rity . .. e b,o.nds, to demand, take, and hold possessIon of the road ap,d equlpments, and