NmLoCK et al.
(CwcuU Oowrt, D. Indiana. December 10, 181lO.)
1bI:MOTAL OJ' CAUSES-LoOAL INPL1l'IIlNO_AnomAVIT.
'The aflldavit. of defendant's attorney for the removal of a cause from a state to. federal circuit court, couched In the general terms of the IItatute. with the addi'tl.ilnal averment "that amant knows the facts of such prejudioe andlooal influence, and makea tbill, affidavit from lIuch knowledge," is lDsufflcient under Act Congo March 8,1887, requiring that "it shall be made to appear" to the circuit court that such prejudice or local influence exists. Under that act, permitting the removal, when there Is a "controvel'llybetween · citizen of the state in which the suit is brought and a citizen of another state, " · removal cannot be had when the suit is brought in Indiana by two plainWfll, one · citizen of Illinois, and the other of Indiana, against a oitizen of Texaa.
.. SAME-DIVERSE CITIZENSHIP.
At Law; ,On motion to remand. Ola'!IPool &- Ketcham, for plaintiffs. L. B. Swift, for defendants.
, WOODS; J. This cause was removed, from the state court upon the petition of the defendant John S. Alexander, who is a cltizenofTexas, ,bis co-defendants being one of them, a citizen of Pennsylvania and the other:a Citizen of Indiana. Of the 'plaintiffs, Niblock is lL citizen of Illinois'and Zimmerman of Indiana. The suit is to enforce an arbitration bond exeouted by the defendants Mtheplaintiffs. and the plaintiffs'are jointly and equally interested in the, relief sought. The removal was ,obtained upon the ground of prejudice and local influence., Aside from tbecitizenship of the parties, the proof of prejudioe or local influence can hardly be deemed suffioient. There is conflict in the decisions on the subject, but the opinion of Justice HARLAN, as declared in v. Railroad, Co., 35 Fed. Rep. 625, is controlling in this circuit. After reviewing the statutes; he says: "I am of opinion that congress did not intE'nd to vest the cfrcuit coutts of .States with autbority to take cognizance ofacase pending in ,the a lItate court upon the grQllnd of prejudice or local influence against the de'fendant, a citizen of another state, unless, the circuit court, in some proper found as a fact that such prejudice or local influence existed. And the simple affidavit by an officer of a defenda'1t corporation, stating in general 'terms that it cannot. from prejudice orloc,al' influence, obtain justice in the state oourls,-no opportunity having been given to the plaintiff, by notice, statement,-ought nQt to be accepted as sufficient evidence , ,: . '' " , :, ', of that fact. " For cases touching the question, see Cooper v. Railroad Co., 42 Fed. Rep. 697. The affidavit in support of the petition for removal of this cause was made by the petitioner's attorney, and is in the general terms of the statute, except that it contains the statement "that affiant knows the facts of such prejudice and local influence, and makes this affidavit from such knowledge.» But this necessarily is only an expression of opin, ion, and, without a statement of facts to justify it, means no more than if the affidavit had conformed to the of the act of March 3,
IU.IN t1. PETERS.
1875, "that he haa reasoh to.beHeve and does believe," etc; The present act says: "When it shall be made to appear to said circuit court," etc., and the change of phraseology seems to me to require the interpre:tation which Justice HARLAN has kdopted. In Rike v. Floyd, 42 Fed. Rep. 247, an affidavit was held insufficient on grounds quite applicable here. See, also,. recent decision of the supreme court in Ex parte PfI!1,rI.sylvania OJ., 11 Sup. Ct. Rep. 141, (decided December 22, 1890.) Whether Or not, if tht:l showing of prejudice were prima facie good, the. court ought to consider the counter-affidavits, which have been filed, or should sustain the_ motion made to reject them, need not be considered. There is another and more conclusive reason why the court cannot take of this cause. There is in it no "controversy between a citizen of the state in which the suit is brought and a citizen of another state." It is perhaps not material that the defendant who sought a removal was joined as with a citizen of the state where the suit was brought, but it is fatal to the right of removal that one of the plaintiffs was a citizen of another state. It was so decided, after car&ful consi(jeration, ill the case of Thouron v. Bailwa1j 00., 38 Ifw. Rep. 673. Motion to remand sustained.
(OIreuU Court, E. D. Virginia. December 10, 1890.)
K"'ft01UJ. Bl1Ol-IN'soLVENcT-PuMBNT 011' PRB1'BRRBD DBJI'II-INTBRBS'I'.
In80lvent debtors of an insolvent national bank assign, glviugpreferenceslD faTor of the bank. Qurere whether the debt preferred shall carry interest. BeLd that, where there is nothing in the language 01 the assignment, or in the circumItaDceS un(1er which the debt was created, to negative the presumption that the debt should bear interest. and nothing in the conduct of the receiver of tbe nationalbank to estop him from claiming interest, in such a case interest muat be paid. (S1/UabUB btl the Court.)
In Equity. On petition of receiver to be allowed interest upon &.PJ:'&Cerred debt, the principal of which has been paid. T. S. Garnett and W.J. Robertson, for receiver. Old, James Alfred Jrmea, and Legh R. Page, for trustees.
HUGHES, J. There are cases in which sums of money made payable by instruments defining them do carry interest after the date when they become payable, if payment is deferred. They are cases in which· the circumstances and language under and by which the sums are made payable forbid the hnplication that interest is to accrue. A of this c1l155 was that ofJfurphy's Appe,al,6 Watts & S, 22-3, cited at bar. in . which there was an aSsignment in -trust, which provided, among other things, that the .trustee should "pay and satisfy in full the.sulli of 85,178.32 to Placette Caze, a winor,to be paid to her, or