only practical result would be to add to the ordinary complications of a. trial those which would arise by retrying at the same time a. former controversy also. Tbe motion for a. new trial is denied.
SMITH and others.
(Circuit OQ'Urt, D., NebrasJca,. November 11, 1880.)
OF defendant cannot acquire the right to have his cause removed to the federal courts by the purchase of the interests of his co-defendants.· CONTEMPORANEOU8 ATTACHMENTB.-Five several attachments were sued out on five distinct claims, and were all levied at the same time upon a certain stock of goods. Held, that the controversy as to the ownership of the stock of goodll was 8 single controversy between the plaintitfa on one aide, and all the attachment creditol1l ul-onthe other .ide.
Motion to Remand. - - , for plaintiffs. - - , for defendants. MCCRARY, C. J. We have considered the motion to remand. This was a suit brought in the state court-a replevin against the sheriff of Saline county to recover possession of a stock of goods which the sheriff held under five several writs of attachment. The sheriff appeared in the state court, and moved to substitute the judgment creditors as the real parties in interest, and that motion was sustained. Two of these judgment creditors are citizens of this state, one of them is a. citizen of Iowa. After the subtitution of the judgment creditors as defendants, the Iowa firm appeared in the state court and moved to be substituted as sole defendant, alleging that they had become the purchasers of the claims. There is nothing'in the record to show that motion was acted upon by the sta.te court, but immediately upon its being filed the non-See Hoyt v. Wright, 4 FED. REp. 168.
resident defendants of Iowa filed a petition to remove the cause to this court, alleging that they had been purchasers and assignees of the other defendants. The motion is now made to remand by the plaintiffs. I have already decided that an assignee who could not originally sue in this court cannot remove the cause from the state COUl't. That disposes of this case, except so far a.s the claims of the Iowa parties, which they held originally, are concerned. They owned one of the five claims .upon which this attachment was sued out, independently,-a claim which was in controversy in this case. It is now insisted, under the second section, that, if the whole case cannot be removed, so much as related to the claim of these non-resident parties may be removed. The original controversy here is between the Iowa attaching creditors and these plaintiffs, but it is not wholly between them. The controversy is as to the owner· ship of this stock of goods, and that is a controversy between the plaintiffs on one side, and all the attachment creditors on the other side. It cannot be said to be a controversy between the plaintiffs and anyone of the creditors. It follows that, if this cause should be removed, there might be conflicting judgments upon this same subject. . There is another difficulty. The attachments were all levied at the same time, and they are to be paid out of the proceeds of the property. How can this court confer with, or act with, any court in making any pro rata disposition of this fund? I do not see how it would be possible to get along in that. way. Even if both courts should sustain the attachment, we could not be inquiring :what the state court had done. I do not think the controversy is one which can be fully determined between the Iowa parties and other claimants,. and the motion to remand is sustained.
(Circuit COMt, N. D. New York.
November 6, 1880.)
SENDING IJETrERS THROUGH MAIL--INTENT TO VEFAUn-REV. ST.
§ 5480.-Sectfon 5480 of the Revised Statutes provides that "if
any person having devised, or intending to devise, any scheme or artifice to defraud or be effected by either opening, or intending to open, correspondence or communication with any other person, whether resident within or outside of the United States, by means of the poot-office establishment of the United States, or by inciting such other person to open communication with the person so desiring or intending, shall, in and for executing such scheme or artifice, or attemptiug so to do, place any letter 01' packet in any post-office of the United States, or take or receive any therefrom, such person so misusing the post-office establi!.3h· ment shall tie punishable· by a fine of not more than $500, and OJ' imprisonment for not more than 18 months or by both such PUllishments." Held, that the word "or," in the expression "or be effected," is a clerical mistake for the word "to," and that tIle expression should, be, "to be effected." 2. CIRCUIT COURT-WRIT OF ERROR-ACT OF MARCH 3,1879, (20 U. S. ST. AT LARGE, 354.)-The only questions that can be reviewed in the Circuit court upon a writ of error, under the act of March 3, 1879, (20 U. S. St. at Large, 354,) relating to "criminal cases tried before the district court," are those which appear IJJ', the recol'll to have been decided and duly excepted to in the court below. 3. REQlJEST-INU1CTMENT-SUFFICIENCY.-A request to instruct tne , jury that there was no evidence in the case upon which there could be a legal cOIlviction under the indictment, does not raise any question as to the sufficiency of such indictment. 4. circuit court cannot, on writ of error, pass upon the sufficiency of the evidence in the court below, where the bill of ,exceptions does not clearly set forth all such evidence.
15. SENDING LETTERS THROUGH MAIL-INTENT TO DEFRAUD-EVIDENCE.-
The fact that defendant received letters in answer to an advertisement, and the fact that the letter inclosing the advertisement to the newspaper in which it was published was in the defendant's handwriting, warranted the court in charging, under the circumstances of this case, that such facts were evidence that defendant mailed such letter and ndvertisement.
United States v. NoeZke. 1 FED. l'tEP.426-442.
Writ of Error under the Act of March 8, 1879. Matthew Hale, for plaintiff. Martin 1. Townsend, Diat. Att'y, for the United States.