marine league of mark shan' be deemed open' sea within the meaning of the act. See 2 Steph.Hiat. Crim. Law England j The assault alleged in the information isrnot a violation of any law of the United States, and therefore the demurrer is sustained, andjwlgment thereon will be given in bar of the action.
SOUTHWORTH 11. REID
(Circuit Court, D. Wi8con8in,
REMOVAL OJ' CAUSES-LoCALl'REJUDICE-ACT Oll' MARCH
8. 1887., Act March 8,1887. providing that where there is a controversy ina,ny suit in a state court between a citizen of the state wherein the suit IS brought and a citizen of another state. any defendant, a citizen of such other state, may remove the same to the proper United States circuit court upon it being made to appear tosaid court t.hat from prejudice or local influence he will not be able to obtain justice in such state court. or in any other state court to which it may be removed under the laws of said !itat.e.-repeals. by implica· tion, act 1867,(Rev. St. U. S. § 639.) which provides for such removal at the instance of either upon the filing of an affidavit in the state court. stating bis belief that he cannot obtain justice in the state court by'reason of prejudice or local influence, the two provisions being wholly inconsistent,!
By the act of 1887. unliite the former act. such application must be made to tbe United States circuit court and be supported by sucb proof as to satisfy the court of the truth of such allegations, and a case removed IJy the state court since.the latter act took effect. upon such an affidavit as that prescribed by the former act. not showing that defendant could not obtain justiCe in some state court other tban the one in which the action was to which he may, under the laws of the state. secure a change ·of venue, should, , on motion of the plaintiff. be remanded to the state court. 1 8.8AME-DrVERsE CITIZENSHIP. An action for damages for wrongful levy on the goods of plaintill'. who resides in the state in whose court the suit is brought. against the creditors causing the levy, residents of anOther state. their agent, and attorneys in the proceedings, is not removable by reason of the diverse citizenship of the parties, as some of the defendants reside in the same state with plaintiff, and the con· troversy is not separable. Following Sloane v· .Anderson, 117 U. S.275, 6 Sup. Ct. Rep. 730. 2 4. SAME-REllAND-WAIVER OF RIGHT. In such case the plaintiff does not waive his right to remand the cause by once obtaining a continuance in the federal court, as the question is jurisdictional.
SAME-REQUISITES Oll' ApPr,rCATION-PROOF OF PREJUDICE.
At Law. On motion to remand to state court. Action by Orville T. Southworth against Simon Reid, Thomas Murdock, August Fisher, Griffith J. Owen, Guy C. Prentiss, and Charles B. Miller, to recover damages for .80 wrongful levy on plaintiff's goods·
.' lFor a discussion of the "prejudice or local influence" clause of the removal act of :M:arch,3, 1887. and a refer.ence to,the different rulings thereon, see Malone v. Railroad Co., 35 Fed. Rep. 625, cited in opinion, and note j Whelan v. Railroad Co., Id. 841l. IConcerning the. removal of causes under the act of 1887, on the ground of diverse citizenship,see Cooley v. McArthur, 35 Fed. Rep. 372. and note; Whelanv. Railroad Co., Id. 849; Seddon v. Virginia, etc., Co., 36 Fed. Rep. 6.
On motion of defendants Reid,Murdodk, and Fisher, the cause was removed to the United States circuit court, by order oithe circuit court of LaCrosse county. Plaintiff moves· to remand the case to the state court. Brindley, for plaintiff. Eugene Cl1fford and Charles E. Shepard, for defendants.
BUNN, J. This is a motion by plaintiff to remand the case to the state circuit court of La Crosse county, Wis., whence it originated. The action is brought by the plaintiff, a citizen of La Crosse, Wis., to recover $20,, 000 damages alleged tt;> ,havebe!,n sustained by reason of a tortious and unlawful levy upon his stock of goods made by the defendants under executions alleged to be unautporized, and. void, and which, with the judgments on which they were foundecJ, were set aside by the state court. The defendants Simon Reid, iThomas Murdock, and August Fisher, in whose favor the levy was made,are wholesale merchants, residing in Chicago. Griffith J. Owen. their agent, resides in Columbia county, Wis., and Guy C. Prentiss and Charles B. Miller, their attorneys, reside at the city of La Crosse,. The defendants Prentiss & Miller and Owen answer separately. After suit was brought in the state court for La Crosse county, and before the principal defendants, Reid, Murdock, and Fisher, had answered, they made petition to the said st,ate court for the removal of the cause into this court-Ji1ir8t; on the ground of diverse citizenship; and, 8econd, on the of local influence and prejudice. And in May, '1.888, an ordel,'of the court was made for such removal. . The case has been notiood for trial once in this court by the defendant and a continuance had at the instance of plaintiff. The plaintiff now moves to repland the for the it is not a proper case (or removal, on the ground of diverse citizenship of the parties, three of the defendants being citizens of Wisconsin, and of the same state as the plaintiff. And, second, that the application for removal on the ground of prejudice should bernade to this court, and that before a removal can be had it must be. made to appear in some way by evidence to this court that, from prejudice or local influence, the defendants asking for removal will not be abletoobtliin justice in the state court. Upon careful consideration I think the case should be remanded. ,It is clear,that, as regards the question of diverse citizenship as a sole ground of'reil1oval, this case does not come within the provisions of the statute, three out of six of the defendants being citizens of the same state with the plaintiff, and the controversy not being severable. The case in this respect is ruled by Sloane v. Anderson, 117 U. S. 275,6 Sup. Ct. nep.730. The remaining question is whether the petition makes a proper case for removal under the local prejudice act as it now starids, and I am of the opinion that it does not. The application was made after the act of )larch 3, 188.7, had gone into effect; but the petition is framed according to the provisions of the removal act of 1867, continued in section 639, Rev. St., and aslthough that statute was still in force, and But it seems inevitable of section 2 oOhe llct o£1887,
'being wholly inconsistent with those of the old :aet, repeal them'. By the formera;ct, when a suit is between a citizen of the state in which it is brought" and a citizen of another state, it may be so removed on the petition of the latter, whether he be plaintiff or defendant filed at any time before the trial or final hearing of the suit, if before or at the time of fil.. ing said petition, he makes and files in said state court an affidavit stating that he has good reason to believe, and does believe, that, from udice orloeal influence, he will not be able to obtain justice in said state court. Section 2 of the act of 1887, as corrected by the act of August 13, 1888, provides as follows: ".And .where a suit is now pending or may be hereafter brought in any state court, in which there is a controversy between. a citizen of the state in which the suit is brought and a citizen of another state, any defendant. being such citizen of another state. may remove stich suit into the circuit court of United states for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that, from prejudice; or local influence, he will not be able to obtain justice in such state court, or in any other state conrt to which the said defdndant may, under the laws of the Iltate, have the right on account of such prejudice or local influence to remove said canse. " It will be seen that this provision is quite different from the former provision in its scope and meaning, in that it limits and restricts the right of removal in at least two essential ways, besides providing, in effect, that the application shall be made to the circuit court oitho United s.tates instead of the state court where the action is pending. Under the old act plaintiff or defendant might remove the case, while under the present law the right is restricted to the defendant. Againj under the act of 1867, all that was essential to deprive the state court of jurisdiction and confer jurisdiction OD the circuit court was for the appli. cant to file the necessary bond and to make an affidavit stating that; he has good reason to believe, and· does believe, that, .from prejudice or local influence, he will not be able to obtain justice in said state court. When an application was made, accompanied by such an affidavit and baud; the jurisdiction of the state court'ceased without even an order of removal being made. It was not essential that the fact of prejudice be made toap' pear, or that any evidence whatever should be adduced. It was enough to allege the belief of the applicant. The court had no inquiry and no ing to make, and no .conclusion to come to. Now, looking at the act of 1887,.if this radical change in the language means anything it must mean that the fact of the existence of local prejudice or influence must be made to appear to the circuit court. And how can the fact appear to the court except by legal evidence submitt either by the examination of d nesses or by affidavits? The case to be made is wholly different from that under the former law. Then it was not essential that any proof should be submitted, the fact itself not being essential. It was enough if the party. could swear that he believed, which has never been taken as legal proof of It fad. In Wisconsin, where the provision is so ample fer the removal of a cause frum one state court to another, on account of dice, it sbouldrarely happen that the party could make it appear to thifl
court tha,tbe' could not ,either in the court where the action pending or in some other court where it might be removed under the laws of the state. By the laws QC(the ;state, upon, the application of either party who shall make an affidavit:tbat he has good reason to believe, and does believe, that he cannot hlltv:e. a fair trial on account of the prejudice of the judge, the place oftrini must be changed to some county where the causes complained of do not exist. There is also ampieprovision for cha,DKing the place of trial when· there is reason to believe that an impartial trial cannot be had in the county designated for that purpose in the complaint. See Rev. St. c. 119, §§ 2622-2625, etc. Now, in order to remove a case into this court under the present strict though just law, it must be made to appear to the court that from prejudice or local in.. lluence, the party will not be able to obtain justice in the state court where the action is pending, nor. in any other state court to which the defendant may, under the hhvs of the state, have the right to remove the same. I apprehend that in this state it would rarely happen that a proper case for removal could be made under thislaw. In the action at bar no case is made. There is, indeed, little attempt to com ply with the present statute of removal. On the contrary, the application fouemoval seems to have been made on the assumption that the act of 1867 is still in full force, unrepealed and unmodified by the aqt of 1887. The application is made to the state court. The affidavit is made by defendant Reid, who swears that he believes, and has good reason to helieve, and that each of his co-defendants believes, and has good reason to believe, that, from prejudice and local,jnfluence, he and his said co-defendants Murdock and Fisher will not be able, nor will anyone of them be able, to obtain justice in the circuit court of Wisconsin for La Crosse county, in which the action was pending, or in any court of the state of Wisconsin, to which he and his said co-defendants might under the state l/l.ws remove the action. \ In view of the ample provisions made for the removal of actions for prejudice or local influence under the state laws this affidavit of Mr. Reid is the equivalent of swearing to his own belief, and to the belief of his co-defendants, that there was no court nor county in the state of Wisconsin where the defendants could have justice done them. Now, it is possible that such a state of facts might exist· . It is highly probable, however, that he could obtain ample justice in anyone of 40 or more counties in the state, allowing that he could not in La Crosse county, where the' action was pending. Of course, if he could make the fact of such universal prejudice appear to this court he might yet obtain a removal; but this should be done upon notice and application to this court, supported by competent evidence to bring the case within the act of 1887 .. ' As nothing of the kind is attempted, but the motion to remand is resisted on the ground that the application for removal and affidavit already made are sufficient, the case must be remanded to the. circuit court for La Crosse county, whence it came to this court. The adjudged cases under the act of 1887 are somewhat conflicting, but this is the only view I am able to reconcile with the language of the statute. See Fisk v. Henarie, 32 Fed. Rep. 417 , 35 Fed. Rep. 230;
Il11ls'v. Railroad Co., 33 Fed. Rep; 81; Short v. Rm'lway Co., 114; Malone v. Railroad OJ.,35 Fed. Rep. 625. It isconterided by the de-
fendants the defect, if any, in the petition and affidavit have been waived by the plaintiffs continuing the case one term in this court. But 1 think the question is more jurisdictional. No case for removal has been shown to exist, and the court cannot take jurisdiction by consent of parties. The action is remanded.
(Oireuit Court, W; D. Missouri,
D. November 3, 1888.
EQUITY-CANCELLATION Oll' INSTRUMENTS-INJUNCTION-BREAClI Oll' CON- , TRACT.
Complainant, representing the members of a company proposed to be organ" ized for the D;lanufacture of glucose, called on defendants for the seeing the process. Before he was permitted to see it, a contract was presented to him by defendants for signature, which he at first declined to sIgn. as it conte1Ilplated the erection of an establishment with a capacity of 2,IlOO, bushels, while his associates had spoken only of one with a capacity of .l,pOO bushels, and that he had no authority to sign for them; but signed it on being' told that he would not be personally bound by it, and that it was unde1!a rule adopted by dl'fe.qpants, that no one should see the process, unleS! a contract was signed, and with the understanQing that it was to be the basi? of a later contract between defendants and the proposed company Hela that; the scheme fallen through without fault of complainant, defendantlf would be enjoined from an attempted enforcement of the contract, and that its cancellation would be decreed. ' The fact that at the time the contract was signed complainant spoke of his ability to build a house with a capacity of 1.000 bushels, presents no excuse for a reformation of the contract in that respect, and its enforcement against complainant.
SAME-REFORMATION OF CONTRACT.
In Equity. , ' Bill by George P. Olmstead against Jacob Michels to enjoin the prosecution of an action for breach of a written contract, and for cancellation of the contract. Peak, Yeager &: Ball, for complainant. a. O. 'Pichenor, for defendant. Before BREWER and PHILIPS, JJ. BREWER, J. Defendant commenced an action at law to recover dam· ages for the breach of a writtel1 contract. 1 Complainant filed thi$bill to of that action,and compel the cancellation of such enjoin the contract. A brief statement of the grounds of decision is here The written contract is perfect in form, and signed by the parties. One ground upon which the complainant rests his bill is this: That this writing signed by the parties, and apparently a contract between them,
"Michels v. Olmstead, 14 Fed. Rep. 211l.