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1,468,595. Pull broaching machine, claims 3, 11, 12, held substantial advance in art and was valid and infringed (D. C. Conn.) 33 F. (2d) 929.

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1,525,923. Starting mechanism of automobiles,345 (2) U.S.D.C.Cal. Answer denying con

claims 5, 10, 11, held not infringed by mechanism not containing essential details of plaintiff's invention (D. C. Mass.) 33 F. (2d) 993. 1,561,198. Improvements in jars and bails therefor, held invalid as anticipated by prior art (C. C. A. III.) 33 F. (2d) 504.

1,618,767. Covering process for purifying neon light tubes, held not entitled to restrain infringement (D. C. N. Y.) 33 F.(2d) 910.

1,672,040. Steam-pressing iron, held valid and infringed (D. C. N. Y.) 33 F. (2d)

603.

REISSUE.

16,243. Monolithic poured-in-place roof structures, claims 3, 4, held not infringed (C. C. A.) 33 F. (2d) 466.

16,817. Boring tool with head and cutters of different diameters, claims 1-3, 5, 79, held void, and claims 4 and 6 valid and infringed (D. C. Mich.) 33 F. (2d) 942.

16,847. For sadiron, claim 1, held not infringed (D. C. N. Y.) 33 F.(2d) 603.

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sideration for contract of guaranty sued on raised issue preventing judgment for plaintiff on pleadings.-Commercial Credit Co. v. Semon, 33 F. (20) 356.

354(2) U.S.D.C.N.Y. In action to recover gold confiscated by Soviet State Bank, defendant's allegations as to de facto Soviet Government held not to be stricken.-Banque de France v. Equitable Trust Co. of New York, 33 F.(2d) 202.

In action by Banque of France to recover gold confiscated by Soviet State Bank of Russia, defense of recognition of Soviet by French Republic held not to be stricken.-Id.

In action to recover from defendant gold seized by Soviet State Bank of Russia, defense that bank is part of Soviet Government should not be stricken, since it raises question of jurisdiction.-Id.

Defense that plaintiff's demand for return of chattel did not afford defendant reasonable opportunity for investigating claim of title held not subject to be stricken.-Id.

Bailee's allegations that subsequent to plaintiff's demand defendant had returned chattels to

bailor should be stricken as constituting no de

fense.-Id.

360(4) U.S.D.C.N.Y. On motion to strike out defenses to action to recover personalty, averment that property is not property of plaintiff is regarded as admitted. - Banque de France v. Equitable Trust Co. of New York, 33 F.(2d) 202.

XIII. DEFECTS AND OBJECTIONS, WAIV-
ER, AND AIDER BY VERDICT

OR JUDGMENT.

430(2).S.C.C.A.N.J. Court properly allowed case to be tried on averment of original contract, where plaintiff alleged modification, but defendant joined issue on original contract. -Congress Cigar Co. v. Canister Co., 33 F. (2d) 657.

PLEDGES.

15 U.S.C.C.A.Okl. Refusal to quash indict-U.S.C.C.A.China. To constitute "pledge,"

ment for perjury in denying charge of which defendant was acquitted held not error, where government offered no evidence thereof and defendant admitted alleged false alibi testimony -Lipscomb v. U. S., 33 F. (2d) 33.

II. PROSECUTION AND PUNISHMENT.

22 U.S.D.C.Ind. Indictment for making false oath in pending cause held insufficient, because not properly designating court wherein cause was pending (28 USCA § 153).-U. S. v. Johnson, 33 F.(2d) 222.

32(8) U.S.C.C.A.Okl. Testimony as to nature of defendant's transaction with alleged purchaser of alcohol held competent in trial for perjury in testifying as to being in another city at time. Lipscomb v. U. S., 33 F. (2d) 33.

PLEADING.

I. FORM AND ALLEGATIONS IN GENERAL.

pledgee must have possession and property must be under creditor's control.-McDonnell v. Bank of China, 33 F. (2d) 816.

POISONS.

2U.S.C.C.A.Okl. Harrison Narcotic Act held constitutional (26 USCA §§ 211, 691-707). -Cook v. U. S., 33 F.(2d) 509.

U.S.C.C.A.Okl. Indictment for selling morphine not in or from original stamped package held sufficient. -Cook v. U. S., 33 F.(2d) 509.

Evidence held to support conviction for selling morphine not in or from original stamped package.-Id.

POST OFFICE.

I. POST OFFICE DEPARTMENT, POST
OFFICES, POSTMASTERS, AND
OTHER OFFICERS.

8(15) U.S.C.C.A.Idaho. General allegation5U.S.C.C.A.La. United States may re

of fraud must be disregarded, where there were no facts or circumstances alleged supporting such allegation.-McClung v. Twin Falls North Side Land & Water Co., 33 F. (20) 478.

cover value of mail embezzled by dishonest postal employee, holding money recovered for owner.-United Fruit Co. v. U. S., 33 F. (2d) 664.

8(15) U.S.C.C.A.III. Allegation that drainage district commissioners caused subcontractor to believe nothing prevented performance of work held mere conclusion. - Sternberg v. Wa-22.S.C.C.A.La. Government could

II. MAILABLE MATTER, TRANSMISSION
AND DELIVERY OF MAIL, AND
MONEY ORDERS.

re

konda Drainage and Levee Dist. in Fulton County, Ill., 33 F. (2d) 451.

21U.S.C.C.A.III. Allegation that subcontractor assumed and was caused by drainage district commissioners to believe nothing prevented performance of work held defective for

cover from carrier of United States mail value of registered mail stolen, regardless of whether value exceeded government's liability under postal regulations, or whether government had made payment to senders. - United Fruit Co. v. U. S., 33 F. (2d) 664.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

Vessel carrying government mails is subject to postal regulations.-Id.

Copies of files of Post Office Department, showing verified claims made by senders of registered mail held admissible in government's action against carrier for value of mail stolen. -Id.

Carrier's performance of public function as agent of Post Office Department in transporting mail did not relieve it of liability to government for theft by its employees. Id.

Remedy of government by imposing fine for carrier's loss of mail does not prevent action to recover value of lost mail (39 USCA §§ 443, 655).-Id.

111. OFFENSES AGAINST POSTAL LAWS.

mit renewal, where agent suffered loss during time contract was effective.-Id.

II. MUTUAL RIGHTS, DUTIES, AND LIA

BILITIES.

(B) Compensation and Lien of Agent.

81(5) U.S.D.C.Mass. While principal may revoke agent's authority at pleasure, principal may not thus deprive him of fruits of labor fully performed.-Huber Hoge, Inc., v. Smith & Wesson, 33 F. (2d) 923.

Where plaintiff agreed to submit advertising for defendant under agreement terminable on notification, with protection merely on current commitments, defendant canceling space orders was not liable for commissions on subsequent advertisements billed by publishers to another company.-Id.

PRINCIPAL AND SURETY.

35(3) U.S.C.C.A.Mo. Corporate officer, devising fraudulent scheme, and personally or through authorized agents making false pretenses or promises, and using mails in furtherance of scheme, violates statute (Pen. Code, § 215 [18 USCA § 338]).-Barrett v. U. S., 3373 U.S.D.C.Md. Surety can only be held

F. (20) 115.

35(6) U.S.C.C.A.Mo. Intent to use mails is not essential to complete offense of using mails to promote fraud (Pen. Code, § 215 [18 USCA § 338]).-Beck v. U. S., 33 F. (2d) 107.

48(418) U.S.C.C.A.Mo. Indictment for using mails to promote fraudulent building financing scheme held sufficient against general attack (Pen. Code, § 215 [18 USCA § 338]).-Beck v. U. S., 33 F. (2d) 107.

48 (43) U.S.C.C.A.Cal. Indictment, in prosecution for using mails to defraud, held not insufficient because not alleging that letters, cir culars, and documents involved were false or fraudulent.-Robinson v. U. S., 33 F. (20) 238.

Failure of indictment to allege falsity of representations in prosecution for using mails to defraud held immaterial, where remainder of indictment alleged crime.-Id.

48(438) U.S.C.C.A.Mo. Blanket allegation in general terms of false promises, statements, and representations in indictment charging misuse of mails held bad pleading.-Beck v. U. S., 33 F. (2d) 107.

49(11) U.S.C.C.A.Mo. That letters purport to bear manager's signature is insufficient

to convict him or other corporate officers of using mails to promote frauds without proof that such defendants signed or mailed them (Pen. Code, § 215 [18 USCA $338]).-Beck v. U. S., 33 F. (2d) 107.

50U.S.C.C.A.Cal. Whether defendant participated in scheme to use mails to defraud with guilty knowledge held for jury. Robinson v. U. S., 33 F.(2d) 238.

PRINCIPAL AND AGENT.

I. THE RELATION.

(A) Creation and Existence.

II. NATURE AND EXTENT OF LIABILI-
TY OF SURETY.

for interest beyond penalty of bond which accrues from unjustly withholding payment after notice of principal's default.-Black Diamond S. S. Corporation v. Fidelity & Deposit Co. of Maryland, 33 F.(2d) 767.

PROHIBITION.

I. NATURE AND GROUNDS.

5(2) U.S.C.C.A. Prohibition was proper remedy on failure to transfer cause to Northern District of Oklahoma pursuant to proper request (Act Feb. 16, 1925, § 6, 43 Stat. 946).Hampton v. Williams, 33 F.(2d) 46.

RAILROADS.

II. RAILROAD COMPANIES.

15.S.D.C.N.Y. Interstate Commerce Act held not to authorize railroad to violate obligation to convert preferred into common stock by failing to apply for Interstate Commerce Commission's approval (Interstate Commerce Act as amended in 1920 [49 USCA § 20a]).Marony v. Wheeling & L. E. Ry. Co., 33 F.(2d) 916.

Allegation of plaintiff suing railroad refusing to convert preferred into common stock that plaintiff was holder of preferred stock held sufficient.-Id.

Waiver of right of action for refusal to convert preferred into common stock or lack of interest, constituted affirmative defenses.-Id.

33(1) U.S.D.C.Wash. Railroad merely maintaining office in charge of representatives soliciting passengers and freight traffic was not "doing business" within state. Klabzuba v. Southern Pac. Co., 33 F. (2d) 359.

IV. LOCATION OF ROAD, TERMINI, AND
STATIONS.

29 U.S.C.C.A.W.Va. Where contract giv-60U.S.C.C.A.Ohio. Contract granting ter

ing exclusive agency permitted agent upon expiration thereof to renew agreement, notice of renewal mailed day after contract expired came too late. Lewis-Hale Coal Co. v. Enterprise Fuel Co., 33 F.(2d) 727.

(B) Termination.

33U.S.D.C.Mass. Principal may revoke agent's authority at pleasure.-Huber Hoge, Inc., v. Smith & Wesson, 33 F. (2d) 923.

minal company right to do certain work to facilitate building of new station held not "abandonment" by railroad of station site, in view of reservation for restoration of property (Transportation Act [49 USCA § 1, par. 18]; Gen. Code Ohio, §§ 504-2, 504-3, 8806-8809). – Wheeling & L. E. Ry. Co. v. Pittsburgh & W. V. Ry. Co., 33 F. (2d) 390.

VI. CONSTRUCTION, MAINTENANCE, AND

EQUIPMENT.

41U.S.C.C.A.W.Va. Agent's damages for principal's breach of contract in selling coal di-95 (6) U.S.C.C.A.N.C. Since town could

rect to agent's customer was commission which agent would have earned.-Lewis-Hale Coal Co. v. Enterprise Fuel Co., 33 F.(2d) 727.

Company having exclusive agency for sale of coal was not entitled to damages for voluntary suspension of its work during dull months. Id. Company given exclusive agency for sale of coal with option to renew contract could not recover damages for principal's refusal to per

require removal of wooden bridge over tracks and construction of concrete bridge, irrespective of nuisance, failure to give railroad notice as to declaring wooden bridge nuisance was immaterial.-Carolina & N. W. Ry. Co. v. Town of Lincolnton, 33 F. (2d) 719.

99 (1) U.S.Sup.N.J. State's police power to regulate grade crossings for public safety was not affected by Transportation Act of 1920

(49 USCA).-(D. C.) Lehigh Valley R. Co. v. Board of Public Utility Com'rs of New Jersey, 33 F.(2d) 780, order affirmed Lehigh Valley R. Co. v. Board of Public Utility Com'rs, 49 S. Ct. 69, 278 U. S. 24, 73 L. Ed. -.

99(4) U.S.Sup.N.J. That order to eliminate grade crossing did not choose cheapest method did not make order unreasonable when there were good reasons for choice. (D. C.) Lehigh Valley R. Co. v. Board of Public Utility Com'rs of New Jersey, 33 F. (2d) 780, order affirmed Lehigh Valley R. Co. v. Board of Public Utility Com'rs, 49 S. Ct. 69, 278 U. S. 24, 73 L. Ed.

99(5) U.S.Sup.N.J. Order for elimination of grade crossing held not unreasonable because it involved expenditure of $175,000 more than railroad's plan which involved relocation and curving of straight highway.-(D. C.) Lehigh Valley R. Co. v. Board of Public Utility Com'rs of New Jersey. 33 F. (2d) 780, order affirmed Lehigh Valley R. Co. v. Board of Public Utility Com'rs, 49 S. Ct. 69, 278 U. S. 24. 73 L. Ed. -. 99(11) U.S.Sup.N.J. Court in determining whether state commission's order for elimination of railroad grade crossing is reasonable does not substitute its judgment for commission's, but considers all factors.-(D. C.) Lehigh Valley R. Co. v. Board of Public Utility Com'rs of New Jersey, 33 F. (2d) 780, order affirmed Lehigh Valley R. Co. v. Board of Public Utility Com'rs, 49 S. Ct. 69, 278 U. S. 24, 73 L.

Ed.

Court is not obliged to choose between two methods for eliminating railroad grade crossing, where plan ordered by state commission is reasonable.-Id.

After-acquired property clause in railroad mortgage covering franchises, rights, privileges, immunities, and exemptions and "appurtenances" held not to include equipment.-Id.

Covenants in railroad mortgage held not to show intent to include after-acquired equipment under mortgage lien.-Id.

State statute held not to have effect of inserting after-acquired property clause in recorded railroad mortgage (Gen. St. Minn. 1878, с. 34, §§ 71-73).-Id.

Grant of income under railroad mortgage and covenant to replace held equivalent of afteracquired property clause covering equipment (7) Callaghan's Ill. Ann. St. 1924, с. 114, par. 20).-Id.

That new equipment was purchased with proceeds of subsequent mortgage would not prevent lien under after-acquired property clause in prior mortgage attaching.-Id.

Railroad purchaser assuming mortgage requiring equipment to be maintained and replaced thereby extended mortgage lien to cover so much of equipment purchased as necessary to keep intact in value equipment covered thereby.-Id.

Usually sale of railroad property terminates operation of mortgage after-acquired property clause.-Id.

Inclusion of "bills receivable, traffic balances and claims" in railroad mortgage granting clause held not equivalent to mortgage of income operating as after-acquired property clause covering equipment.-Id.

Covenant in railroad mortgage authorizing trustee after default to take possession and replace equipment held not equivalent to afteracquired property clause as respects equipment.

102(2) U.S.D.C.Ohio. Contract for work
on footbridge over railroad tracks held not with--Id.
in statute against rebuilding bridges having less
than 21 feet clearance (91 Ohio Laws, p. 365,
now, as amended, Gen. Code Ohio 1910, §8
8903-8905).--Ann Arbor R. Co. v. City of To-
ledo, 33 F.(2d) 939.

VII. SALES, LEASES, TRAFFIC CON-
TRACTS, AND CONSOLIDATION.

134(4) U.S.D.C.Conn. Lessee of railroad covenanting to pay all taxes levied on lessor was bound to pay federal income taxes imposed under subsequent statute.-Gaston v. New London Northern R. Co., 33 F. (2d) 183.

Railroad bridge held covered by subsequent mortgage, specifically describing it as covered thereby, not by prior mortgage omitting reference thereto.-Id.

171(3) U.S.D.C.Minn. Railroad purchasing branch line and assuming first mortgage thereon on paying mortgage held to have equities superior to subordinate mortgages.-Guaranty Trust Co. of New York v. Minneapolis & St. L. R. Co., 33 F. (2d) 512.

X. OPERATION.

(B) Statutory, Municipal, and Official Regulations.

139.S.C.C.A.Ark. Failure to terminate trackage agreement for 18 months after lease223 U.S.Sup.N.J. State may require rail

of railroad held waiver of right to terminate contract.-Blytheville, L. & A. S. R. Co. v. St. Louis-San Francisco Ry. Co., 33 F.(2d) 481.

144(1) U.S.D.C.Minn. Generally, consolidation terminates after-acquired property clause in mortgage of consolidating railroad.Guaranty Trust Co. of New York v. Minneapolis & St. L. R. Co., 33 F.(2d) 512.

VIII. INDEBTEDNESS, SECURITIES,
LIENS, AND MORTGAGES.

roads to provide reasonably adequate facilities, question of reasonableness being for court.(D. C.) Lehigh Valley R. Co. v. Board of Public Utility Com'rs of New Jersey, 33 F.(2d) 780, order affirmed Lehigh Valley R. Co. v. Board of Public Utility Com'rs, 49 S. Ct. 69, 278 U. S. 24, 73 L. Ed.

(F) Accidents at Crossings.

350 (28) U.S.C.C.A.Ohio. Contributory negligence in approaching city railroad crossing held jury question, in view of evidence of defendant's negligence and customary maintenance of flagman.-Leuthold v. Pennsylvania R. Co., 33 F.(2d) 758.

(A) Nature and Extent of Liabilities. 153U.S.D.C.Minn. Bondholders, making no protest for 15 years, during which proceeds of bonds under subsequent refunding mortgage were spent for improvements, held barred by laches from asserting invalidity of closure agreement. Guaranty Trust Co. of New York v. Minneapolis & St. L. R. Co., 33 F. (2d) 512. 166 U.S.D.C.Minn. Railroad mortgage provisions that replacements should be subject to mortgage lien held not covenant to make replacements.-Guaranty Trust Co. of New York v. Minneapolis & St. L. R. Co., 33 F. (2d) 512.- Owens v. Southern Ry. Co., 33 F. (2d) 870. Railroad mortgage bestows no power on trus-398(2) U.S.C.C.A.N.C. Evidence not showFor cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same tople and KEY-NUMBER

tee to consent to destruction of bondholders' rights under mortgage. Id.

167 U.S.D.C.Minn. Railroad mortgage covering certain after-acquired property held not to after-acquired equipment.-Guaranty Trust Co. of New York v. Minneapolis & St. L. R. Co., 33 F.(2d) 512.

cover

(G) Injuries to Persons on or near Tracks. 396(1) U.S.C.C.A.N.C. Negligence of railroad does not raise presumption of causal connection between negligence and death.-Owens v. Southern Ry. Co., 33 F.(2d) 870.

396(2) U.S.C.C.A.N.C. Injury or death by train does not raise presumption of negligence.

ing with certainty how deceased, while drunk, was killed, did not show absence of headlight on engine was proximate cause of death (Code N. C. 1927. § 3479). Owens v. Southern Ry. Co., 33 F.(2d) 870.

400(1) U.S.C.C.A.N.C. Without proof of connection between negligence and death, nonRECEIVERS.

suit will be sustained. Owens v. Southern Ry. Co., 33 F.(2d) 870.

Evidence not indicating with reasonable certainty how deceased met his death when struck by railroad train held insufficient to make case for jury on question of railroad's negligence. -Id.

V. ALLOWANCE AND PAYMENT OF
CLAIMS.

149 U.S.D.C.Ohio. Orders barring claims against estate are not enforced before full distribution, unless injustice would otherwise be done. In re Studebaker-Wulff Rubber Co., 33 F. (2d) 1004.

150 U.S.C.C.A.W.Va. Creditors of insolvent in receivership may intervene and contest validity and priority of other claims.-Wiggington v. Auburn Wagon Co., 33 F. (2d) 496.

152.S.C.C.A.Pa. Seller held not entitled to preference, where receiver for buyer, appointed while goods were in transit, on their arrival paid freight charges and took possession. Sowers Mfg. Co. v. Keck, 33 F. (2d) 510.

154 (2) U.S.C.C.A.W.Va. Allowances to attorneys rest in trial judge's sound discretion. -Wiggington v. Auburn Wagon Co., 33 F. (2d)

496.

157 U.S.C.C.A.Minn. Priority claims of United States are subordinate to lien of mortgage attaching before indebtedness to government accrues (31 USCA § 191).-U. S. v. Guaranty Trust Co. of New York, 33 F. (2d) 533.

158(1) U.S.C.C.A.Minn. Claims under Transportation Act are not entitled to priority over mortgage creditors or other preferred creditors of railroad in receivership (31 USCA §§ 191. 192; Transportation Act 1920, § 209 [49 USCA § 77], §§ 207, 210).-U. S. v. Guaranty Trust Co. of New York, 33 F. (2d) 533.

VII. ACCOUNTING AND COMPENSATION. 198(2) U.S.C.C.A.W.Va. Allowances to receivers rest in trial judge's sound discretion.Wiggington v. Auburn Wagon Co., 33 F. (2d)

496.

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I. NATURE, GROUNDS, AND ORDER OF REFERENCE.

(1) U.S.C.C.A.Del. In actions on use and occupation policies, court was justified in submitting question of plaintiff's losses to auditor, in view of complexity and extent of books offered.-Newark Fire Ins. Co. v. Bisbee Linseed Co., 33 F. (2d) 809.

III. REPORT AND FINDINGS.

99(2) U.S.C.C.A.Del. In actions on use and occupation policies, report as to plaintiff's losses by auditor appointed by court was prima facie correct.-Newark Fire Ins. Co. v. Bisbee Linseed Co., 33 F. (2d) 809.

Auditor appointed to determine losses under use and occupation policies need not call witnesses to make his report prima facie evidence of facts stated therein.-Id.

REFORMATION OF INSTRUMENTS.
11. PROCEEDINGS AND RELIEF.

47 U.S.D.C.La. Plaintiff could sue in one action to reform insurance policy, so as to avoid

forfeiture, and for recovery of insurance.— Rapides Club v. American Union Ins. Co. of New York, 33 F. (2d) 552.

RELEASE.

I. REQUISITES AND VALIDITY.

17(1) U.S.C.C.A.Okl. Principal's release of agent held not binding, where he did not know agent had kept part of selling price of oil lease.-Hawker v. Worley, 33 F. (2d) 491.

IIJI. PLEADING, EVIDENCE, TRIAL, AND

REVIEW.

57(2) U.S.C.C.A.Okl. Evidence held to show principal did not know, when he executed release, that agent had sold oil lease for more than represented.-Hawker v. Worley, 33 F. (2d) 491.

REMOVAL OF CAUSES.

I. POWER TO REMOVE AND RIGHT OF REMOVAL IN GENERAL.

10.S.D.C.S.C. Where state court was without jurisdiction of cause removed to federal court, federal court was without jurisdiction (Code Civ. Proc. S. C. 1922, § 774).-Lightfoot v. Atlantic Coast Line R. Co., 33 F.(2d) 765.

17 U.S.D.C.Cal. Stipulations extending time fixed by state statute for pleading or moving do not enlarge time for removal nor work estoppel or waiver (Jud. Code, § 29 [28 USCA § 72]; Code Civ. Proc. Cal. § 407).— Yuba City Box Co. v. Liverpool & London & Globe Ins. Co., 33 F.(2d) 909.

II. ORIGIN, NATURE, AND SUBJECT OF CONTROVERSY.

19(5) U.S.D.C.Ohio. Petition alleging interstate shipment was stopped in transit and rebilled, without being repossessed, as intrastate shipment to original destination, and destruction thereof, stated cause of action removable to federal court (Carmack Amendment; 49 US CA § 20 (11) (12). - Fielding v. Toledo & Ο. C. Ry. Co., 33 F. (20) 994.

III. CITIZENSHIP OR ALIENAGE OF PARTIES.

(A) Diverse Citizenship or Alienage in General.

27.S.D.C.S.C. Character of railroad

corporation as foreign corporation was not af

fected by its compliance with local domestica

tion laws, or by absorption of local railroad

company, as regards removal of cause to federal court.-Lightfoot v. Atlantic Coast Line R. Co., 33 F. (2d) 765.

36.S.D.C.Ark. Plaintiff's joinder of resident defunct corporation as defendant held not fraudulent, hence preventing removal by nonresident defendant, where defunct corporation was attempted to be served, and there was no dismissal as to it (Acts Ark. 1927, No. 250, pp. 880-882, §§ 35-38; Crawford & Moses' Dig. Ark. § 1239).-Fidler v. Western Coal & Mining Co., 33 F. (2d) 158.

36 U.S.D.C.S.C.

forth in pleadings is joint or joint and several, Where liability as set controversy is not separable, and purpose in joining resident defendant is immaterial.-Sanders v. Atlantic Coast Line R. Co., 33 F.(2d)

1010.

Right of removal cannot be defeated by fraudulent joinder of resident defendant having no real connection with controversy.-Id.

Joinder of resident defendant, although fair on face, may be shown to be fraudulent device to prevent removal.-Id.

Where facts show joinder of resident defendant was without reasonable basis in fact, and in bad faith, case must be removed.-Id.

(B) Separable Controversies.

48 U.S.D.C.S.C. Where complaint states more than one controversy, one being against nonresident defendant alone, removal is proper.-Sanders v. Atlantic Coast Line R. Co., 33

F.(2d) 1010.

49(3) U.S.D.C.S.C. Action for tort which could be brought against many persons or some only and which is brought against all jointly cannot be removed by some defendants.-Sanders v. Atlantic Coast Line R. Co., 33 F.(2d) 1010.

When concurrent negligence is charged, controversy is not separable.--Id.

Where complaint states joint and several tort against resident and nonresident defendants, there is no separable controversy.-Id.

Complaint against resident foreman and nonresident railroad, alleging assault by foreman on plaintiff while plaintiff was removing ties un.der contract with foreman, did not outline separate controversy which could be basis of separate action for breach of contract.-Id.

Complaint against resident foreman and nonresident railroad, alleging assault by foreman on plaintiff while he was removing defective ties at request of foreman, stated joint cause of action.-Id.

55U.S.D.C.S.C. Filing of separate answers tendering separate issues for trial by several defendants sued jointly in state court does not divide suit into separate controversies.Sanders v. Atlantic Coast Line R. Co., 33 F. (2d) 1010.

VI. PROCEEDINGS TO PROCURE AND EF. FECT OF REMOVAL.

79(1) U.S.D.C.Ohio. If petition did not disclose interstate character of shipment, case would have been removable to federal court

at defendant's option as soon as true condition was developed at trial.-Fielding v. Toledo & O. C. Ry. Co., 33 F. (2d) 994.

89(1) U.S.D.C.S.C. Removal petition must be verified, and its statements must be taken by state court as true.-Sanders v. Atlantic Coast Line R. Co., 33 F. (2d) 1010.

95U.S.D.C. Ohio. Removal follows as matter of course, if allegations in removal petition disclose federal questions, within federal court's original jurisdiction. Fielding v. Toledo & O. C. Ry. Co., 33 F. (2d) 994.

on

VII. REMAND OR DISMISSAL OF CAUSE. 107(4) U.S.D.C.Ohio. Only question motion to remand is sufficiency of removal petition, showing that federal question is involved. -Fielding v. Toledo & O. C. Ry. Co., 33 F.(2d) 994.

Motion to remand is equivalent to admission that facts stated in removal petition are true. -Id.

107(4) U.S.D.C.S.C. Court, on motion for remand, must take complaint as it finds it and take petition for removal supported by affidavits and consider them only as they bear on question of removability. Sanders v. Atlantic Coast Line R. Co., 33 F.(2d) 1010.

Where removal is effected, plaintiff may by motion to remand, etc., take issue with statements in petition, and District Court must determine issues.-Id.

107(5) U.S.D.C.S.C. Petition and affidavit constituting only denial that resident defendant was acting in scope of nonresident defendant's employment was not affirmative showing plaintiff acted in bad faith in making resident party. Sanders v. Atlantic Coast Line R. Co., 33 F.(2d) 1010.

107(7) U.S.D.C.Ark. Defendant, removing cause for diversity of citizenship, must prove joinder of resident defendant was fraudulent.Fidler v. Western Coal & Mining Co., 33 F. (2d) 158.

seeking removal must be taken as true unless denied.-Sanders v. Atlantic Coast Line R. Co., 33 F.(2d) 1010.

At hearing on motion to remand, petitioning defendant has burden of proof.-Id.

Where plaintiff does not take issue with allegations in petition for removal, petitioner need not produce proof to sustain them.-Id.

VIII. PROCEEDINGS IN CAUSE AFTER REMOVAL.

112U.S.D.C.S.C. In taking steps for removal and in interposing demurrer to jurisdiction, defendant did not voluntarily submit to jurisdiction of federal court.-Lightfoot v. Atlantic Coast Line R. Co., 33 F.(2d) 765.

REPLEVIN.

1. RIGHT OF ACTION AND DEFENSES.

U.S.D.C.N.Y. Refusal to deliver chattels to plaintiff, of such character as not to indicate conversion, cannot be basis of action for conversion or replevin.-Banque de France v. Equitable Trust Co. of New York, 33 F. (20) 202.

11 (2) U.S.D.C.N.Y. Demand and refusal are prerequisite to action for recovery of chattels against innocent bailee of one who received chattels unlawfully.-Banque de France v. Equitable Trust Co. of New York, 33 F.(2d) 202.

12(1) U.S.D.C.N.Y. Defendant may defend on ground that third person is entitled to chattel without connecting defendant with latter's title (Civil Practice Act N. Y. § 1093). Banque de France v. Equitable Trust Co. of New York, 33 F. (2d) 202.

IV. PLEADING AND EVIDENCE.

61 U.S.D.C.N.Y. In action to recover personalty based on wrongful detention, demand or refusal, or facts showing wrongful withholding without demand, must be alleged (Civil Practice Rules N. Y., Rule 271).-Banque de France v. Equitable Trust Co. of New York, 33 F.(2d) 202.

RULES OF COURT.

See Court Rules Cited or Construed.

SALES.

I. REQUISITES AND VALIDITY OF
CONTRACT.

(4) U.S.C.C.A.N.J. Contract calling for increase in deliveries to 60,000 boxes weekly "within reasonably prompt time" held not too indefinite. Congress Cigar Co. v. Canister Co., 33 F.(2d) 657.

II. CONSTRUCTION OF CONTRACT.

54 U.S.C.C.A.Okl. Sales contract should be construed as whole, and, if possible, interpreted as having mutuality.-Southwest Pipe Line Co. v. Empire Natural Gas Co., 33 F. (2d) 248, affirming decree (D. C.) Empire Natural Gas Co. v. Southwest Pipe Line Co., 25 F. (2d) 742.

72(5) U.S.C.C.A.N.Y. If results of test were stated in terms of breaks in coils, buyer of machines on condition of equally satisfactory second test could not reject machine for other matters.-Pratt Chuck Co. v. Crescent Insulated Wire & Cable Co., 33 F. (2d) 269.

Requirement that second test of machines be as satisfactory as former test merely required same average breakage of coils.-Id.

77(1).S.C.C.A.Ind. Buyer cannot excuse breach of purchase contract because of provision for readjustment of price on changes of miners' pay, where seller waived increased prices on increase of miners' pay. Cub Fork Coal Co. v. Fairmount Glass Works, 33 F.(2d) 420.

IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods. 107(7) U.S.D.C.S.C. On motion for 177 U.S.C.C.A.Ind. Buyer's refusal to acmand of cause, affidavits filed by defendant cept further deliveries of coal, unless price re

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