property itself; while section 3289 is directed alone against the property, and is operative without reference to the fact whether or not the neglect to comply with the requirement of the law was willful. I cannot think that Congress, in imposing a penalty by fine upon the individual dealer who refuses or willfully neglects to place upon the package the mark and stamp required, intended to relieve the property from forfeiture, the one penalty being enforced by proceedings in rem against the property alone, the other in personam upon the violator of the statute. That forfeiture of the property and a fine imposed upon the offender may both exist, I have no doubt. While it is true that the single fact that the stamps upon the barrels indicated that the barrels contained a greater number of gallons than were actually placed therein would not constitute a fraud upon the government, and while it is further true that the purpose and object of the act in question was to obtain revenue, and not in any respect to protect purchasers of the property from deception, yet the marking and stamping must be regarded as a means adopted by the government to effectuate the object and purpose of the legislation, and as an aid in preventing frauds upon the A petition for the removal of a cause from a state to a federal court on the ground of diverse citizenship should not only allege that the citizenship of the parties is diverse, but should also disclose the states of which the parties, respectively, are citizens. 2. SAME AMENDMENT. hazon Where a removal petition averred that the controversy was between citizens of different states, and that the amount in controversy, exclusive of interest and costs, exceeded the sum of $2,000, the federal Circuit Court to which the cause was removed had jurisdiction to permit the petitioner to amend the petition so as to disclose the citizenship of the parties. Motion to Remand. M. S. Bonnifield and Torreyson & Summerfield, for plaintiffs. HAWLEY, District Judge (orally). Plaintiffs move this court to Iemand this case to the state court upon the ground that this court is without jurisdiction to hear and determine the cause, in that it is not alleged by the petition for removal, nor does it appear by the record or otherwise, that at the time of the commencement of the action in the state court there was diverse citizenship of the parties. It is not al ¶ 1. Averments of citizenship to show federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 261. leged by the said petition, nor does it appear in any manner by the record, that at the time of the commencement of the suit the defendants were residents and citizens of the state of Utah, or any other state than that of the state of Nevada, of which state it is alleged that the plaintiffs were residents and citizens at the time aforesaid. Defendants confess the insufficiency of the petition, but claim that the objection is one of mere form only, and does not reach the substance of the petition, and ask leave to amend their petition so that it would read that "the defendants were nonresidents of the state in which said suit was brought, to wit, the state of Nevada, at the time said action was brought, ever since have been and now are citizens of the state of Utah." The sole question is whether this court has jurisdiction to allow the amendment. If so, it should be granted. The objection urged to the form of the petition for removal is well founded, and, if the case rested solely on the petition, it should be remanded. Crehore v. Railway Co., 131 U. S. 242, 9 Sup. Ct. 692, 33 L. Ed. 144; Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. 518, 32 L. Ed. 914; Jackson v. Allen, 132 U. S. 27, 10 Sup. Ct. 9, 33 L. Ed. 249; Craswell v. Belanger, 56 Fed. 529, 6 C. C. A. 1, and authorities there cited; De Loy v. Ins. Co. (C. C.) 59 Fed. 320; Railway Co. v. Twitchell, 59 Fed. 727, 8 C. C. A. 237. The question of the right to amend the petition was not involved in those cases. In Johnson v. F. C. Austin M. Co. (C. C.) 76 Fed. 616, and Stadlemann v. White Line Towing Co. (C. C.) 92 Fed. 209, the direct question of the right to amend was presented, and the amendment was allowed. The petition in this case is, in principle, identical with those cases. It contains the averments that the controversy is between citizens of different states, and that the amount in controversy, exclusive of interest and costs, exceeds the sum of $2,000. The court in the cases referred to held that "these are the facts upon which the jurisdiction of this court depends"; that the averment that the controversy is between citizens of different states is not sufficiently specific, but should be followed by the statement of the particular state of which each of the parties is a citizen; that the fact sought to be averred by the proposed amendment is simply a statement in detail of one of the facts necessary to complete with requisite certainty the statement of the ultimate and material fact that the controversy is between citizens of different states; that the proposed amendment does no more than set forth in proper form and sufficient fullness of detail what had originally been imperfectly stated in the petition. In addition to these cases, see Kinney v. Columbia S. & L. Association, 191 U. S. 78, 82, 24 Sup. Ct. 30, 48 L. Ed. 103, and 18 Ency. Pl. & Pr. 324, and authorities there cited. In Glover v. Shepperd (C. C.) 15 Fed. 833, 837, Judge Bunn held, in a case where the citizenship of the parties was not stated in compliance with the statute, that it was within the power and discretion. of the court to allow an amendment. At first blush, there appears to be some difference of opinion as to whether or not the objection raised is jurisdictional in its charac ter. In Cameron v. Hodges, 127 U. S. 322, 326, 8 Sup. Ct. 1154, 32 L. Ed. 132, the court said: "The case in this court must be tried upon the record made in the Circuit Court. In this instance there has been a removal from a tribunal of a state into a circuit court of the United States, and there is no precedent known to us which authorizes an amendment to be made, even in the Circuit Court, by which grounds of jurisdiction may be made to appear, which were not presented to the state court on the motion for removal." But that case had not been properly removed on any ground. In Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 201, 24 L. Ed. 656, the court said: "The record in the state court, which includes the petition for removal, should be in such a condition, when the removal takes place, as to show jurisdiction in the court to which it goes. If it is not, and the omission is not afterwards supplied, the suit must be remanded." And in Grace v. American Central Ins. Co., 109 U. S. 278, 284, 3 Sup. Ct. 207, 27 L. Ed. 932, the court said: "It is true that the petition for removal, after stating the residence of the plaintiffs, alleges that there is, and was at the time when this action was brought, a controversy therein between citizens of different states.' But that is to be deemed the unauthorized conclusion of law which the petitioner draws from the facts previously averred. As the judgment must be reversed, and a new trial had, we have felt it to be our duty, notwithstanding the record, as presented to us, fails to disclose a case of which the court below could take cognizance, to indicate for the benefit of parties at another trial the conclusion reached by us on the merits. And we have called attention to the insufficient showing as to the jurisdiction of the Circuit Court so that upon the return of the cause the parties may take such further steps touching that matter as they may be advised." The language, as used in these cases, implies that an amendment might be made after the removal to the Circuit Court. The inference to be drawn from the language in the decision in Carson v. Dunham, 121 U. S. 421, 427, 7 Sup. Ct. 1030, 30 L. Ed. 992, is much stronger in favor of allowing the amendment. The court, after stating that an answer filed in the Circuit Court might be treated as an amendment to a petition for removal, said: "The answer was germane to the petition, and did no more than set forth in proper form what had before been imperfectly stated. To that extent, we think, it was proper to amend a petition which, on its face, showed a right to the transfer." See, also, Powers v. Chesapeake & Ohio Ry., 169 U. S. 93, 101, 18 Sup. Ct. 264, 42 L. Ed. 673. Upon an extended examination of all the cases upon this subject, I am of opinion that the motion to amend should be allowed, and the motion to remand denied. It is so ordered. MOWER-HOBART CO. v. R. G. DUN & CO. Circuit Court, N. D. Georgia. May 23, 1904.) 1. LIBEL MERCANTILE REPORT-ALLEGATION OF EXPRESS MALICE. A declaration in libel, based on a report made by defendant, as a mer cantile agency, with respect to the financial standing of plaintiff, which stated, inter alia, that plaintiff's account with the bank was "not classed as an entirely desirable one," states a cause of action for the recovery of actual damages, without regard to the question of privilege, where it is further alleged that "the report as a whole was a false and malicious defamation of plaintiff, tended to injure it in its said business, and was craftily and wickedly, falsely and maliciously, so intended and designed,” which is a sufficient allegation of express malice. At Law. Action for libel. On demurrer to declaration, Hoke Smith and H. C. Peeples, for plaintiff. Walter R. Brown and Ellis, Wimbish & Ellis, for defendant. NEWMAN, District Judge. This suit is brought by the MowerHobart Company, a corporation doing business in Atlanta, in this district, against R. G. Dun & Co., a mercantile agency. The declaration alleges that R. G. Dun & Co. conduct what is known as a mercantile agency, with offices located at various points throughout the United States, and with an office at Atlanta, Ga., in said county of Fulton; that part of the business conducted by said R. G. Dun & Co. is to distribute for a consideration, to merchants, dealers, and others, information regarding the standing of persons engaged in trade, their financial worth, credit, character, trustworthiness, and the conduct and condition of their business; that such information is secured and given out by representatives stationed at commercial centers, who secure the same, and distribute it directly or through agents of said firm to its patrons in the form of written or printed slips called "reports"; that said partnership is known as Dun's Commercial Agency, it numbers among its patrons a large proportion of the leading wholesale mercantile establishments of America, and its reports are accepted, and largely influential, and to a great degree regulate and control, commercial transactions in the United States, especially as regards the financial credit and responsibility of merchants. It is then alleged that on or about July 11, 1902, the defendant gave out to its subscribers a written report upon plaintiff, as follows: "Mower-Hobart Co. Office supplies etc. Atlanta, Ga., Fulton. No. 1 Broad St. "July 11, 1902. "At present this company is located at 61 Peachtree St. That place has been leased and they have rented store house at above address, where they intend moving August 1st. "When requested for statement Mower claimed that they had not inventoried since statement rendered during March to which he referred. Stated verbally that there had been practically no change, and affairs were in about the same shape as indicated in their last showing. "The statement referred to was submitted under date of March 24th last, and showed total assets of $18,211.54, with debts of $7,491.9, indicating a sur T1. See Libel and Slander, vol. 32, Cent. Dig. § 198. plus or worth of the company of $10,719.55; result of investigation made at the time resulted in conceding the company a responsibility of something like $6,000. "Just at present the expenses of the company are a little heavier than usual, Inasmuch as they will have to pay store rent on two places until Sept. They have keen competition to contend with, and while they appear to be aggressive and attentive, their trade is hardly thought to average up as much as formerly. They carry a nice stock of merchandise, but some of this is consigned. At bank the company is very well known where they have been granted some accommodations, but settlements through this source said to have been slow and altogether the account is not classed as an entirely desirable one. However confidence seems to be manifested in Mower's ability, and a willingness is expressed to indulge him to a reasonable extent. No complaints from the trade at large have come to notice, and in an eastern market one firm states that dealings, including those with predecessors covers a period of about ten years, have with them goods on consignment aggregating $3,000 to $4,000, and say that the account on direct sales average about $300 on usual terms, remittances being made promptly. No extensions asked. Are owing now about $300 not due. One concern in the local market is found who have handled the account in a small way, and say dealings were satisfactory, though report no recent transactions. The location which they will occupy after August 1st is hardly considered as much desirable as their present quarters, and as a basis for credit the responsibility of the company is not placed at exceeding $5,000 to $6,000 and quoted in fair credit standing. "7-11-02. Rate G. 3. to G. 32." This report is taken up in the declaration by paragraphs, and is charged as having been false and malicious. The present hearing is on a demurrer to the declaration. The demurrer and argument of counsel thereon raises the question as to how far the above report is libelous. In my judgment, the only part of the report made by the defendant as to the plaintiff which could in any way be classed as libelous, and intended to injure it, if untrue, is that language which stated that "the account" referring to the plaintiff's bank account "is not classed as an entirely desirable one." The remainder of the report does not seem to me to contain anything of which complaint can reasonably be made. The first part of the report states, on authority of a member of plaintiff's company, that its assets are $18,211.54, and its debts $7,491.09, indicating a surplus or worth of the company as $10,000. The Dun Company itself gives the plaintiff company a credit or responsibility of something like $6,000. Any one could judge for themselves from the amount of its assets and liabilities what credit it should have. The statement of the Dun Company as to $6,000 of responsibility is evidently merely an expression of its own opinion as to the extent of credit such an amount of assets and liabilities would justify. The statement in the report as to the change of place of business, the additional expense, and as to consigned goods, are not such as would seem to cause injury or damage to plaintiff. The statement to the effect that "they carry a nice stock of merchandise," and of Mr. "Mower's ability," and as to "remittances being made promptly" for consigned goods, and "no extensions asked," seem all to be complimentary, and such as should be helpful to plaintiff in its mercantile business, rather than otherwise. The next question is as to how far a report made by a mercantile agency, such as R. G. Dun & Co., is privileged. The general rule with reference to the privilege of a mercantile agency, as gathered from the |