KEENEY V. ROBERTS.
8urance Co., 4 Wkly. Notes Cas. 18. Judge COXE in the circuit court, N. D. New York, approved and followed these decisions with reference to a bond which made no provision for payment of costs. Webber v. Bishop, 13 Fed. Rep. 49. So Field in his treatise on Jurisdiction of the Federal Courts says: "If the bond is manifestly defective, as where no sum for the penalty is inserted, this would be ground for remanding the case to the state court from which it come." Section 190. See, also, section 178, p. 156. There are some decisions holding that slight defects may be cured, as in Harris v. Railroad Co., 18 Fed. Rep. 833, amI cases cited. But none of them are cases where substantially there was no bond at all, till Ion!!; after the time for removal had expired. In my judgment the court cannot dispense with any substantial condition to a removal required by the statute, and cannot supply a substantial condition after the time for removal has expired, :lnli the right of the other party has attached. For all of the various reasons ill .icated, a removal was not effected. The cause must, therefore, be remanded with costs, and it is so ordered.
(Circuit Court, D. California.
REMOVAL OF CAUSES-ACT OF
July 19, 1886.)1
1875-TUiE OF REMOVAl,. Under the removal act of 1875 a case cannot be removed after the term at which it could have been first tried in the state court, and where counsel do not take the objection it is the duty of the court to do so.
Before SAWYER, Circuit Judge. SAWYER, J. This suit was commenced in the superior court of the state December 27, 1881. The answer was filed, and the case put at issue. and was ready for trial, :May 2, 1882. The petition for removal to this court was not filed till January '25, 1884-nearly two years after it could have been tried. Not less than half a dozen terms of the superior court passed at which it could have been tried. The application for removal was too late, and the removal at that time was not authorized by the act of 1875, under which the petition was filed. MacNaughton v. Railroad Co., 10 Sawy. 113, 114, 19 Fed. Rep. 881; Car Co. v. Speck, 113 U. S. 86, 87,5 Sup. Ct. Rep. 374; Greg(Yry v. Hartley, 113 U. S. 745, 5 Sup. Ct. Rep. 743. The court should take the objection, if counsel do not. Williams v. Nottawa, 104 U. S. 209-211; Farmington v. Pillsbury, 114 U. S. 144,5 Sup. Ct. Rep. 807. The petition and record do not show a proper case for removal, and no order for removal was in fact
l'l'his opinion was not published at the time of its delivery because of failure to receive a copy of it. It is published at this time on account of its citation in Austin v. Gagan, ante, 626.
made. The case is still pending in the state court, and liable, at any time, to be properly called up and tried. As the state court is not obliged to let go its hold, till a proper case for a removal, under the statute, has been presented in the record, and as it has never done so, in fact, it has jurisdiction to proceed, at any time, and try the case. Gregory v. Hartley, 113 U. S. 745, 5 Sup. Ct. Rep. 743. The case must be remanded to the state court, at the cost of petitioner, and it is so ordered·.
SWIl<'T V. SUTPHIN.
(Circuit Court. N. D. Illinois.
September 13. 1889.)
CONSTITUTIONAL LAW-REGULATION OF COMMERCE-MEAT INSPECTION LAW.
Act Minn. April 16. 1889. prohibiting the sale within the state of dressed meat, unless the animal within 24 hours before slaughter was inspected by state officers and fonnd healthy and snitable for food. having the effect of excluding dressed meat from animals slaughtered outside the state. is unconstitutional as usurping the power of congress to regulate interstate commerce, and abridging the privileges and immunities of citizens of other states.
At Lan. On demurrer to pleas. A. H. Veeder and M. B. Loomis, for plaintiff. C. H. Wood, for defendant.
BLODGETT, J. This is an action of assumps·it upon a contract entered into between the parties on the 10th day of May last, whereby it was provided that the parties should go into partnership in the city of Duluth, Minn., for the purpofle of selling there, on commission, fresh dressed meats, slaughtered and prepared for market by Swift & Co. at the Union Stock-Yards in Chicago, Ill. The contract further provided that the proposed partnership should continue for five years from June 1, 1889; that the capital of the firm should be $15,000, one-half to be contributed by each party; and further provided that if either party should fail or refuse to enter into such partnership, or perform its conditions as stipulated, the party so failing or refusing should forfeit and pay to the other party the sum of $7,500. The declaration charges that the plaintiff has always been ready and willing to perform his part of the contract, but that the defendant refuses to enter upon said partnership, or in any manner comply with said agreement; wherefore the plaintiff claims damages as stipulated in the contract. The defendant, by way of defense, interposes two pleas, both of which set up, in somewhat different phraseology, an act of the general assembly of the state of Minnesota, approved April 16, 1889, prohibiting the sale of such meats as the partnership was formed to sell, unless the animals from which such meats should be taken had been inspected within 24 hours before slaughtering, and found healthy and in suitable condition to be slaughtered lor human food, by inspectors appointed under the provisions of said statute. Plaintiff de-·