Cooke v. The State National Bank of Boston. this, that another person was jointly liable with the plaintiff on the demand set up and offered in evidence by way of counter-claim. It was expressly set up as a joint demand against both the plaintiff and his partner, and upon the ground that the other partner, Vanclief, was a joint owner of the note with the plaintiff, and that the action was prosecuted for the benefit of Vanclief, as well as the plaintiff. There was, therefore, no new matter to set up by way of reply and defence to the counter-claim. A mere general denial of it, as a defence to the action, was all that the case called for. Had the defendants established their allegations in their several answers, that the other partner, Vanclief, was a joint owner of the note, and that the action was prosecuted for their joint benefit, the proof offered by way of defence would have been proper; but as they failed entirely to prove those allegations, the evidence was properly excluded. A new trial must therefore be denied, and judgment ordered for the plaintiff on the verdict. New trial denied. PITT COOKE V. THE STATE NATIONAL BANK OF BOSTON, impleaded with CHARLES MELLEN, CHARLES H. WARD and EDWARD CARTER. (GENERAL TERM, FIRST DISTRICT, JANUARY, 1870.) On the application for removal of a cause, from a State into the federal court, under § 12 of the U. S. judiciary act of 1789 (1 U. S. Stat. at large, 79; 1 Bright. Dig., 128), all the defendants were required to join. Per BRADY, J. Norton v. Hayes (4 Denio, 245); Vandervoort v. Palmer, Cook & Co. (4 Duer. 677); and Livingston v. Gibbons (4 John. Ch., 94), explained. Id. A like application, under the Law of 1867 (14 U. S. Stats. at large, 558), upon the ground, that from prejudice, or local interest, justice cannot be obtained in the State court, is improperly granted, when made by one of several defendants. And where an application has been so made by one defendant only, and Cooke v. The State National Bank of Boston. bonds have been furnished and accepted, and an order of removal granted, the error will be corrected on appeal. So held, on appeal from an order, granted on application made, after issue joined, motion to dissolve attachment denied, the cause noticed and on the calendar for trial, and other proceedings had therein. Whether the statute authorizes such an application to be made by a corporation, quere. Per INGRAHAM, J. THIS appeal originally came before the General Term on appeal from a Special Term order, which granted a motion made by the defendant, The State National Bank of Boston, to remove the action into the Circuit Court of the United States for the southern district of New York. The motion was founded upon an affidavit and petition, accompanied by bonds executed in form as required by the statute (14 U. S. Statutes at large, 558), and served with the following notice upon the plantiff's attorneys. Title, &c. GENTLEMEN.-Please to take notice, that on the annexed affidavit, petition and bond (copies of which are herewith served upon you), I will move this court, at a Special Term, to be held at the chambers thereof, at the city hall in the city of New York, on the third Monday of December, 1868, at twelve o'clock, noon, of that day, or as soon thereafter as counsel can be heard, for an order to transfer, remove and transmit the above entitled action, as far as the State National Bank of Boston is concerned, together with all process, pleadings, depositions, testimony and other proceedings therein, tc the Circuit Court of the United States for the southern district of New York. Dated December 10, 1868. Yours, &c., JOHN H. PLATT, Attorney for the Defendant, The State To Messrs. BURRILL, DAVISON & BURRILL, Plaintiff's Attorneys. The affidavit and petition, were as follows, viz.: Title, &c. Cooke v. The State National Bank of Boston. CITY OF BOSTON, COUNTY OF SUFFOLK, 88: We, Amos W. Stetson, the President, James P. Thorndyke, Samuel T. Dana, Abner Kingman, James McGregor, Daniel N. Spooner, John Field, Joshua Stetson, James P. Melledge, and Robert M. Mason, directors of the State National Bank of Boston, a banking association under the laws of the United States, located at Boston, county of Suffolk, commonwealth of Massachusetts, severally, upon information and belief, do declare, and upon oath say, that a suit instituted by Pitt Cooke, of the city, county and State of New York, is now pending against the said State National Bank of Boston, in the Supreme Court, city, county and State of New York; and we do, each for himself, severally, on oath, say, that at the time of the commencement of this action, to wit, on the sixth day of March, in the year eighteen hundred and sixtyseven, and prior thereto, we and the president and other offi cers of said banking association, were, each of us, citizens of the State of Massachusetts, and have ever since continued to be and now are citizens of said State, and residents thereof. We also, each for himself, severally do declare, and upon oath say, that we have reason to believe, and severally do believe, that from prejudice and local influence, the said State National Bank of Boston, will not be able to obtain justice in the said suit in the said State court. Signed, &c., and duly verified. Title, &c. And now the State National Bank of Boston, defendants in the above entitled suit, which is now pending in said Supreme Court, and before the final hearing or trial thereof, come and request, and do present this their petition, that the said suit and copies of all process, pleadings, depositions, testimony, and other proceedings in said suit may be removed and transferred into the Circuit Court of the United States, next to be held within and for the southern district of New York. · Cooke v. The State National Bank of Boston. Your petitioners aver, that at the time of the commencement of the above entitled suit, Pitt Cooke, the plaintiff therein, was and still is a citizen of the State of New York, the State in which the said suit was instituted and brought, and is now pending. They also aver, that the matter in controversy, and in dispute between the parties, exceeds the sum of $500, exclusive of costs. Your petitioners also aver, that the said State National Bank of Boston, on the fourth day of April, in the year eighteen hundred and sixty-five, being a corporation under the name of the State Bank, created by a law of the State of Massachusetts, for the business of banking, and having its place of business in the city of Boston, in the State of Massachusetts, did become a banking association under an act of congress, which was approved the 3d of June, A. D. 1864, entitled "an act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof," and have ever since continued an remained such association, established and having its place of business in said city of Boston. Your petitioners present herewith an affidavit, made by the president and directors of the said State National Bank of Boston, in support of this their petition and application for the transfer and removal of the above entitled suit, into the Circuit Court of the United States as aforesaid, to which they refer, and make the same a part hereof. And your petitioners show to the court, that each and every one of the directors of said bank, and its president and other officers, were, at the commencement of this action, and have continued to be, and now are, citizens of the State of Massachusetts, and residents thereof. Your petitioners offer, and are ready to give good and sufficient surety, that they will enter in the said Circuit Court of the United States, on the first day of its session, copies of all process, pleadings, depositions, testimony and other proceedings in said suit, and that they will then and Cooke v. The State National Bank of Boston. there, appear in the said Circuit Court of the United States, and will then and there answer to the said suit. (Signed) THE STATE NATIONAL BANK OF BOSTON, Bank of Boston. { by AMOS W. STETSON, President. CITY OF BOSTON, COUNTY OF SUFFOLK, 88: Amos W. Stetson, being duly sworn, saith, that he is the president of the State National Bank of Boston; that he has read the foregoing petition subscribed by him as such president, and knows the contents thereof, and that the same is true of his own knowledge, except the matters therein stated on information and belief, and as to those matters he believes it to be true. Sworn, &c. (Signed) AMOS W. STETSON. (Signed) A. W. ADAMS, [L. 8.] Commissioner for the State of New York. The application was resisted by the plaintiff upon the following affidavit: CITY AND COUNTY OF NEW YORK, 88: Charles D. Burrill, being sworn, says, that he is one of the attorneys for the plaintiff herein. That the action was commenced on 6th March, 1867, and that the defendant appeared in the action by attorney, and the answer of the defendant herein was served on the 2d day of April, 1867, and that the cause was noticed for trial for the May term, 1867, and was on the calendar for trial for that and succeeding terms, and is still on the calendar. That on the 8th June, 1867, a notice of motion for the third Monday of June, 1867, to set aside the attachment herein, was received by plaintiff's attorneys, and the motion was argued and denied; and that the defendants appealed to the General Term, and the order was there affirmed and rule entered on 10th day of April, 1868. |