of Chappelr v. Waterworth, S. 102; 15 Sup. Ct. 34, holds that l1Dtler''tli'e of, March 1887 (chapter 373), and 13, 1888 (chapter 8(6), a caSe not depending on the citizenship of the parties, nor otherwise specially provided for,cannot be removed from a state court into:a:circuit court of the, United States, as one arising undel' the constitution and laws of the Ullited States, unless ,that appears Of his' own case; and, if it does not so apby the plaintitrs pear', the want cannOt by any statement in the petition for removal or iit the subsequen'tpleadings.. The case of Railway Co. v. Ziegler, 167 S. 65,'17 Sup. Ct. 128,tecognizes the,same doctrine; britholds that the case made by the pl'aintiff"s 'own showing was one an act 'of congress; and that the circuit court of the arising United States clearly had furisdictioiJ.. Other cases' cited by counsd for the plainti:ft are equally inapplicable. " . ' is one arising The case here mttde by the plaintiff's 0vvn under the constitution and .laws of the United States. As the present t-appointed by a circuit courtofthe United suit is one against a receiv itwas, in a state cop.rt, without States, and could only be leave; by virtue'br 'the acts of congress 3, 1887 (chapter 373), and August 13, 1888 (chapter 866), it'is clearly one arising under the constitutWn and laws of the United States" and hence is removable unless 'the of George COlvin as a'parly defendant,precludes the complaint does not receiver frodlasserting his right of removal. state a joint cause of action in tort 'against the the engineer. The' Habilit;r pf the' engineerl1rises from his 6wn wrongful act inrunnirig+his, engine against 'and over the plainti'fI"s son, while that of'thetecefver'grows out of'tl1e master's liability for negligent or about the master's business. tortious a'dsM his Warax t',JImilw:;ty C<l.,72'Fed: 637. But, if thecallse of action the'receiver and his were joint, itwpuldrnake nodifiq the'rece'iver's right of removal. NQ liability can be asfor ,misfeasaIice or nonfeasance in performoffice,' except under 'and by 'Virtue of the constituing the tion and Ia!wY"of tneUnited Stlltes..The joint liability asserted in the an4 his engineer is' one arising, from hence is laws of the Umted States, one' arlsmg under'V;!.e,. constitutton: under .andjJ;l ;irtliii'of which cteated and exists. Landers v; 73 Ffd'.' 311.. ' The, motion to' remand' is- overruled. , "; 111'.' li:" ' .
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L : 1',1';'
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SE'EBASs'\H at,J)'e1l M'UTUA',B ltESERVE FUND LIFElASS'N. v; :1,·;; i" ..(CU'cult Court, D. New October 25, 1. PL1llADINo'':-A,t'l'i&:k'oll OF OOPY,· . 'In an ll.c'tibnUIi'on' a comrn'ct 'of Insurance, a copy of ,thepoJ,lcy on \VhJ,ch the suIt is founded, annexed to the declaration and' referred to therein, ,therebY,bec.omea a part of .the section 123.. Qt the New Jersey practtc'e .act. -;' .. . " , ..' ., .,
2.SAME-AsSIGNMlI:NT Oll' BREACH.
An ofa In ilie' ""oms of· the contract, when no questio:n Of Ill.wIs 1nTolved, lSi 'good ; .,:
BEEBASS V. MUTUAL RESERVE FUND LIFE ASS'N.
This was an action at law by Therese M. SeebaS8 and others against the Mutual Reserve Fund Life Association to recover on a contract insuring the life of Oscar Seebass. The case was heard on demurrer to a plea filed by the defendant. Preston Stevenson, for complainants. J. F.rank Fort, for defendant. KIRKPATRICK, District JUdge. This action is brought upon a contract of insurance upon the life of one Oscar Seebass, and a the policy upon which ,suit is founded is annexed to the decIa:ratioIl,referred .to therein, and thereby becomes a part of the record, under the 123d section of the New Jersey practice act. Harrison v. Vreeland, 38 N. J. Law, 366. The declaration alleges that the insured "duly executed and performed all ,the coveaantsand condition!" matters things, Whatsoever, required to be performed by him under said contract." It appears by an inspection of the policy; which is made a part of the record, thatone of.tbe considerations of thecpntract was that the assured at the office of the association should pay all mortuary within 30 days from the date ofea&' notice, with the express condition that,.1f any stipulated payment should not be paid when due, then and .such cas,e the certificate should be null and. void. The defendant, by its third plea, denies liability, by reason of failure of the assured to pay a mortuary assessment levied in 1895, '1lnQ.the plea is as follOw's:
. hAnd fbI' afllrther plea to t!he !llltd the. defendant, by like leave of the court first had and obtained," etc., "says that. the not to have or maintain their aforesaid action thereof against it, because it 'says that after the making of.the said cOll,tract, and during t'he GOntinwmce t):1ereor, and during the lifetime of said Oscar Seebass in said declaration named, to wit, on the 1st day of August, 1$95, at the city, county, and state of New York, a certain assessmeIitor mortuary call, No. 81, and for the sum of fortyfive dollars and thirty cents, was made by tile said defendant UPOll the said 0i1Car Seebass, due .notice Whereof, dated on said last-mentioned date, war;: given by the said defendant to the sl}id Oscar Seebass in the manner prOVided in said contract, and Which said assessment or mortuary call' was' by the terms of Said contract payable' to' said d·efendant within thirty days from the l1ate or said notice, yet the said Oscar Seebass did not within tbe said period of thirty days pay to the said defendant the amonnt of said assessment or mortuary call, or any part thereof,although the said defen<lant .was ready and willing to receive the same during all the time the same was payable, wherebyanq by reason whereof t'he said contract became null and void; and this the defendant is. ready to verify," ,etc.
To this plea the plaintiffs demur, and allege for cause:
"That it do(jj;; not legally appear t!hat the plaintiffs' intestate was obligated by the contract of insurance to pay the mortuary call specified in the plea, and that by reason of such nonpayment the contract became null and' void:'
The plea demurred to alleges, in the language of the contract, non· compliance by the assured with one of its conditions. No more than this is required by the correct rules of pleading. An assignment of a breach, in the words of the contract, when no question of law is in· volved, is good. 1 Chit. PI. 332. It is only necessary that the plea contain sufficient matter, Which, if substantiated by proof, will sustain
82 FEDERAL REPORTER.
dWense; :Dewees v. msliranceOo., 34,N. J. Law, 244. Whether themonuary,calI.in this clliseiWas .properly :made, or whether the as.surelt,had the/required notice, or failed to pay in due time, are questions of fact, to 'be determined by the jury from the evidence. :No doubt, the burden is on the Phove the facts showing valid assessments made in strict conformity' with ,tne and the l;>ylaws, but that is a matter of proof, not pleading The plea in this case ,gives notice to ,the of the rp.atter which the defendant sets up iJ;l defense of its action, and a joinder tnerein will, upon tne trialot- the cause, put tne defendant to its 'proof that it has' ,been absolved of its obligation by thefallure of fheassured to perform some duty imposed upon 'hini by t1).e cQntraet. ", ,The demurrer be overruled. '
KELLEY. et 'aI. v. BO'E'rTCHER'dt aI.
CURRAN etaI.v. Ci\.MPIOX et 'al.
DONOVAN v. SAl\i;El.
(Circuit Court ot
Septe,mber 15, 1897.)
ATTORNEYS-IMPROPER AND SCANDALOUS BRIEFS-STRIKI:NGFROM RECORD.,
Where an attorney tiled in a;n appellate court a filled with denunciation and abuse of the jwIges, who decided the c\lse against 1Iim, beloW, and upon their 'Intelligence; integtlty, and personal character. , lIeld.; that 'fOO brief would be stricken from the files, thajj'tl1e; name of the attorney would be stricken from the record as solicitor or cOWlsel. and !be would not be permitted to be heard further in the case, eitlle.+ ot'ally or by counsel, brief; but PJ,at appellant wo,1,1ld be peiimlited to ap.pear by , and file new briefs within a time llbtited. '
from tJ;J.e Oircuit Court of''the United States for the District , . This was a bill in. equity by Thomas D. Kelley, Margaret O.KeIley, Michael P .. Kelley, and Annie B. Kelley against Oharles Boettcher, John F.Campion, A. V. Hunter, 4. R. Meyer, William Boyd Paige, Max, Boehmer, and the Ibex',Mining Oompany. Demurrers to the original and an amended .bill were sustained by the court below, and, complainants declining to' a decree was entered for defendants. From this decree the present appeal was taken. The cause was heard upon a motion to strike the brief of Mr. T. A, Green from the recor.d. Oharles Oavender and Oharles J. Hughes, Jr., for the motion. T. A. Green and,E. B. Green, opposed. Before BREWER, Circuit Justice, and SANBORN and THAYER, Oircuit Judges. BREWER, Oircuit Justice, A DlOtion has b n made to strike from the files the brief of appellants, signed by T. A. Green as solicitor, and affirm the decree. The ground of the motion is, in general terms, the irrelevant, scandalous, and offensive matter with which that brief is filled. The record discloses that appellants, as plaintiffs, on June 19, 1895, by T. A. Green, their solicitor, filed a bill in equity in the cir-