Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-01-21


judgment, and allowed execution upon IL.
The company having been compelled. at
| ter full disclosure. to pay the debt un-
! der the judgment Of a tribunal having
| legal jurisdiction. and adequate power to
| enforce its decision, had an indisputable
| claim to protection against the second
payment of the debt. Clarity VS.. Gigie, l3O
! Mass. 1874; Eddy VS.. O'Hara. 1872, Id. Sc;
Lancashire ms. Co. VS.. Corbetts, le5 H.,
1922
| Townshend, etc, VS.. Outten. etc. Affirm
ed. Opinion by Buchanan, j.
After the decision Of this court in Nye
! VS.. Lovitt, % Va, no; the parties claim
! ing under Henry G. Levitt dled their bill
| to divide the property in accordance with
the principles Of that decision. The trial
| court granted the relief sought. and APP
| peal from that decree. The decree is
clearly right, and is affirmed.
PLEADING.
| Guarantee Company of North America VS..
! First National Bank of Lynchburg Re-
versed. Opinion by Rely. j.
| First assignment Of error. the refusal
| the Federal Court.
The suit was by the bank; citizen and
resident Of the state, on the official bond
| of Hammer is teller also n citizen and
resident, but at The. time serving out a
penal sentence at the United States peni-
Tertiary in Brooklyn, n. Y. The Guaran-
tee Company Is a foreign corporations
citizen and subject of Canada. The petit
Company alone, alleging its citizenship
in Canada. and that Hammer was a resi-
dent OF New York.
Held: IL is essential to the right Of re-
mOval from a State TO a Federal court
that the parties on each side shall be
citizens of different States: and the pc
tition for removal, unless the case pre-
sent a separable controversy, must be by
all the defendants. H1etcher VS. Hamlet.
116. L. s., 1851 An alien sued with a ci.-
zen in a court of the latters State, can
not remove the case on his separate pc
tition, even where the controversy is
separable king VS.. Cornell, 10S L. s.,
1851 Hammer being a citizen Of Virginia,
Of the same State as the plaintiff, and
sued along with the company, it is very
clear the case is not one for removal. i'm
less the fact that Hammer was In prison
in New York made an exception 10 the
law. The fact of his being there does not
constitute him resident. The peniten-
tiary Is not place OF residence. Resi-
dence IS q matter of intention, and is
determined by every man for himself.
Even if a resident. the right Of removal
does not exist, unless he be citizen
also, the right depending on citizenship.
The petition is defective, in not setting
forth the citizenship of Hammer Grace
vs.. ms Co, lO9 L. s.. rs; Hanrick vs..
Hanrick, 1853 u. s.. 1872; Neel VS.. Penn Co.,
l57 L. S.. 1887 Defective. also. in not
alleging that il was not a citizen of Viz
GINA; a foreign corporation, for the pur-
poses of suit, may become resident
Of each State in which il does business
under the laws. Being an alien, II should
have alleged nOn-residence in Virginia.
Walker VS.. O'Neill, 80. Fed. r., 3H.) The
State court IS not bound to surrender Its
jurisdiction, unless the petition show on
its face that petitioner has the right OF
removal. (Stone VS.. SO. Carolina, III u. S.,
1907
Plea No. 9 presented the defence Of fraud
in the procurement of the contract-not
competent at common law as defence TO
a sealed instrument, but otherwise by
statute Code, section 1898: Columbia Acct
dent Insurance Company VS.. Hockey, W
Va. SIS. The plea alleges that the com
pany WIS induced TO become surety Tor
Hammer as teller Of the bank by the posi-
tive representation In writing made on
behalf Of the bank by its cashier that
Hammer was never in arrear; that his ac-
counts. cash. vouchers. &c, were last ex-
amined in 1893 by a committee of the d.
rectors, and found correct; that but Tor
these representations it would not have
executed the bond, and that the represen-
ratiOns were false
Held: The representations were Of ex-
listing facts. were material, were pre-
sumably within thGpeculiar knowledge Of
the bank and its officers. and constituted
an inducement to the company. on which
&c bad the right to rely, TO execute the
bond II was immaterial whether the bank
knew that they were false or honestly be-
lieved them to be true. The real question
is not what the party making the state
and the other party misled by ii. Lynch
burg Fire-Insurance Company VS.. West 7e
Va, SIS: Max Meadows Land and I'm
movement Company VS. Brady, ~ Va. n;
Wilson VS.. Carpenter. 81 va, 1S5. Nor was
the allegation necessary that the cashier
was authorized to make the statement 1t
is alleged that il was made for and on be-
half OF the bank. and the plea contains
the essential allegation that the execution
Of the bond was induced by certain false
representations The bank cannot appro-
pTiate the benefit and repudiate the bur
den, but holds the bond subject 10 the
faint OF any false representations. The
defence presented by the plea was a valid
one, if proved; IL could not be- made under
any plea that was admitted and the court
erred in rejecting It,
SUMMARY.
Judge James Keith, p:
Circuit Court city of Newport News.
Reversed.
Frank & ais. VS.. Peoples National
Bank of Lynchburg e. ais. Corporation
Court city of Lynchburg. Affirmed.
Chesapeake and Ohio Railway Company
VS.. Chambers. Circuit Court of F'luvanna
county. Affirmed.
Dezendorf VS.. Humphreys q Son d ais,
and Lownsberry & ais. VS.. Humphreys x
Son & ais. Law and Chancery Court
city OF Norfolk Reversed.
Judge John w. Rely:
Williams VS.. Tomlin & ais. Circuit
Court of Hanover county. Ainrmed.
Guarantee Company Of North America
VS.. First National Bank OF Lynchburg.
Circuit Court city Of Lynchburg. Re
versed.
Virginia Fire and Marine Insurance |
COMPANY VS. New York Carousal Com |
pany. Circuit Court Of the city of Rich |
mond. Reversed.
Judge John a. Buchanan:
Board of Supervisors OF Alexandria !
VS.. City Council OF Alexandria:
Circuit Court city OF Richmond. Appeal |
dismissed as improvidently awarded.
New York Life-lnsurance Company VS.. |
Taliaferro. Law and Chancery Court |
city of Norfolk. Affirmed.
Townsend x ais. vs.. Outten & ais. Law |
and Chancery Court city OF Norfolk. |
Gilman e. ais VS.. Ryan e. ais. Chan |
Gerry Court city of Richmond. Affirmed.
Judge George NJ. Harrison:
Selden & ais. VS.. Camp * ais. Law and /
Chancery Court city OF Norfolk. At
hrmed.
Greer. receiver Franklin Bank. vs. /
.f lin,