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sideration, however small or nominal if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action on any contract. This is equally true as to contracts of guaranty as to others.” Lawrence v. McCalmont, 2 How. 426, 11 L. Ed. 326; Davis v. Wells, 14 Otto, 168, 26 L. Ed. 686. The sufficiency of a consideration to support a contract rests in the judgment of the parties; and if in contemplation of law it is of any value, in the absence of fraud or duress, the contract will be enforced. Bolling v. Munchus, 65 Ala. 558; Law- . rence v. McCalmont, supra.
I think it may be concluded from the complaint that the platform was built for the convenience and benefit of the defendants to be used in the shipment of their cotton, and other cotton placed with them for shipment, over the plaintiff's lines of railroad. The right was given by plaintiff to defendants to build the platform on its premises or right of way in consideration of defendants' agreeing to indemnify, or in effect to insure, the plaintiff against any loss or damage it might sustain by reason of the platform being built at that place. However this may be, the Alabama statute declares that every contract in writing, the foundation of a suit, is evidence that the party undertook to perform the duty for which it was given, and that it was made on sufficient consideration. It may be impeached by plea, and, when so impeached, the burden of proof is on the defendant. Code Ala. of 1896, § 1800; Bolling v. Munchus, supra.
I am of opinion that, on reason and authority, the demurrers to the complaint on the grounds hereinabove discussed are not well taken, and that they should be overruled, and that the demurrers as to matters of form are also untenable, and should be overruled.
It is so ordered.
BLUNT et al. v. SOUTHERN RY. CO.
(Circuit Court, S. D. Alabama. August 6, 1907.)
No. 1,285. 1. COURTS-JURISDICTION OF FEDERAL COURTS-PLURALITY OF PLAINTIFFS OR
If there are several coplaintiffs, each must be competent to sue, or if there are several defendants, each must be liable to be sued, in a federal court, to give that court jurisdiction.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 855.] 2. REMOVAL OF CAUSES-TEST OF REMOVABILITY.
To be removable, a cause must be one over which the Circuit Court might have exercised original jurisdiction.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Removal of Causes,
$$ 29–34.] 3 SAME-JOINT ACTION-SEPARABLE CONTROVERSY.
An action of tort, which may be brought against one or more persons, and which has been brought against two of them jointly, presents no separable controversy which will authorize its removal by one of them.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Removal of Causes, 95.
Removal of causes, separable controversy, see notes to Robbins v. Ellenbogen, 18 C. O. A. 86; Mecke v. Valley town Mineral Co., 35 C. C. A. 155.]
Whether an action is one involving a separate controversy as to one of the defendants must be determined by what is alleged in the complaint.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Removal of Causes, $ 115.]
On Motion to Remand to State Court.
TOULMIN, District Judge. If there are several coplaintiffs, the intention of the law is that each must be competent to sue, or if there be several defendants, each defendant must be liable to be sued, in the federal court, or the jurisdiction cannot be entertained. The controversy is not between citizens of different states, unless all the persons on one side of it are citizens of different states from all the persons on the other side. See note to Act March 3, 1875, c. 137, § 1, 18 Stat. 470 [U. S. Comp. St. 1901, p. 508], in 4 Fed. St. Ann. p. 294, and authorities cited therein.
The test of the right of removal is that the case must be one over which the Circuit Court might have exercised original jurisdiction under section 1, Act March 3, 1875, as amended. Boston & Montana Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co., 188 U. S. 640, 23 Sup. Ct. 434, 47 L. Ed. 626. See note to section 2 of said act in 4 Fed. St. Ann. pp. 315, 316, and authorities therein cited.
An action of tort, which may be brought against one or more persons, and which is brought against two of them jointly, contains no separate controversy which will authorize its removal by one of them into the Circuit Court of the United States. Powers v. C. & O. R. Co., 169 U. S. 96, 18 Sup. Ct. 264, 42 L. Ed. 673; C. & O. R. Co. v. Dixon, 179 U. S. 135, 21 Sup. Ct. 67, 45 L. Ed. 121; Weaver v. Northern Pac. R. Co. (C. C.) 125 Fed. 155; Fox v. Mackay (C. C.) 60 Fed. 4.
Whether an action is one involving a separate controversy as to one of the defendants must be determined by what is alleged in the complaint. Ward v. Franklin (C. C.) 110 Fed. 795; Harley v. Home Ins. Co. (C. C.) 125 Fed. 792; Fogarty v. South. Pac. Co. (C. C.) 123 Fed. 973.
By the allegations of the complaint, and on the authorities cited supra, it appears to me that this cause has been improperly removed into this court; and it is therefore ordered that the same be, and it is hereby, remanded to the state circuit court.
In re LEWIN.
(District Court, S. D. New York. January, 1907.) BANKRUPTCY-DISCHARGE-CONCEALMENT OF BOOKS.
A bankrupt held, on the evidence, not entitled to a discharge, on the ground that he caused his books of account to be removed from his safe and concealed, with intent to conceal his financial condition.
In Bankruptcy. On motion to confirm referee's report recommending the granting of discharge.
Lawrence L. Goldberg, for the motion.
HOUGH, District Judge. I do not think that the evidence can be said to definitely show a concealment of goods. There was a very extraordinary absence of goods at Lewin's place a short time before his illness; but that is just as consistent with extravagance as with concealment. It has, however, induced me to scan narrowly the testimony in respect to Lewin's books of account. I am convinced, from the evidence, that when Lewin left his store on the afternoon of the day on which he was hurt the books were in the safe. I am convinced that the safe remained intact until it came into the hands of the receiver. Lewin testified specifically that his insurance policy was in the safe, and the evidence is uncontradicted that the insurance policy was in the safe when it passed into the hands of the receiver. It is not suggested that the safe has been tampered with, in the sense that any one broke into it. Being a combination safe, it could not have been broken open without the lock showing the result of violence. No one had any
interest to remove the books from the safe, but Lewin or somebody in his interest; and the inference is irresistible that, since the things of no value were found intact when the safe was opened, and the safe itself in good conditon, that the articles of value, to wit, the books, had been removed by some one knowing the combination, and no one knew the combination except Lewin.
Putting together his ability to get the books out and an apparent motive to secrete the books, there results, I think, a strong burden of proof upon Lewin to rebut the presumption that he took them. In other words, the proof is such as to shift the burden, which in the first instance lies on the objecting creditors. Lewin has not borne it. His cross-examination in respect of the information or misinformation that he gave when his schedules were prepared is most destructive, and the testimony of his attorney singularly unconvincing. I put my decision on the ground, as above indicated, that the creditors have offered enough testimony to shift the burden of proof to the bankrupt, and he has not borne it; but my belief regarding the transaction shown by the evidence is that, whatever may have been the shortcomings of Lewin before, his illness induced the removal of the books from the safe and their concealment.
The report of the special master is disapproved, and discharge denied.
F. W. MYERS & CO. V. UNITED STATES.
(Circuit Court, D. Vermont. July 23, 1907.)
1. CUSTOMS DUTIES-CLASSIFICATION-CORUNDUM-EMERY-SIMILITUDE.
Pulverized corundum, which, though a distinct article from emery, is identical with it in use and nearly identical in material, is dutiable by similitude to ground emery, under Tariff Act July 24, 1897, c. 11, $ 1,
Schedule N, par. 419, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674]. 2. SAME-SAND—"CRUDE”—“MANUFACTURED.'
Held, that under Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 671, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688), relating to "sand, crude or manufactured,” "crude,” sand is such as is found in nature, and manufactured" sand is, though manufactured, substantially the same as crude sand; and pulverized corundum, which is not produced from crude sand, is there
fore not sand of either kind within the meaning of the act. On Application for Review of a Decision of the Board of United States General Appraisers.
For decision below, see G. A. 6,277 (T. D. 27,059), affirming the assessment of duty by the collector of customs at the port of Burlington. The article in controversy consisted of pulverized corundum, which the collector classified as ground emery under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 419, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674]. The board held that, if the material in controversy were not actually emery, it was properly assessed at the same rate, by virtue of the similitude clause in section 7 of said act (30 Stat. 205 [U. S. Comp. St. 1901, p. 1693]).
Walden & Webster (Henry J. Webster, of counsel), for importers. Alexander Dunnett, U. S. Atty.
HOLT, District Judge. This is an appeal from a decision of the Board of General Appraisers assessing certain merchandise as emery. The article in question is corundum. The appellant claims that it is free of duty under the provision admitting "sand, crude or manufactured,” free of duty, in paragraph 671 of the tariff act (Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688]).
Corundum is a kind of stone or rock, consisting almost entirely of oxide of aluminum. It is substantially free from any impurities. Emery ore is corundum ore containing a mixture of impurities, principally oxide of iron. Both ores, when used in the arts, are ground into fine particles and used for grinding. Corundum and emery are commercially distinct articles, but the object for which they are used is identical; and they appear to be in fact identical, except that corundum is substantially pure and emery contains some impurities. There is no specific provision in the tariff act imposing a duty on corundum; and, unless corundum is manufactured sand, within the meaning of section 671 of the tariff act, I think there is no doubt that corundum is subject to the tax imposed upon emery, under the similitude clause in the tariff act. The actual question in this case, therefore, is whether corundum is included in the term "sand, crude or manufactured,” as used in section 671. Crude sand is obviously common sand, as found in nature. It consists almost entirely of silica. I think the term “sand, manufactured," as used in the act, means a kind of sand which, although manufactured, is substantially the same as crude sand. I do not think, therefore, that pulverized corundum ore, or corundum, can be called "manufactured” sand in the sense in which that word is used in the act. The fact that it is technically covered by some of the definitions of sand in the dictionaries is in my opinion immaterial.
My conclusion is that the decision of the General Appraisers, appealed from, should be affirmed.
WHITTMORE et al. v. MALCOMSON.*
(Circuit Court, S. D. New York. September, 1885.) GAMING-SPECULATIVE TRANSACTIONS–SHORT STOOK SALE-BROKER'S RIGHTS.
Where defendant directed plaintiffs, who were stockbrokers, to sell certain stocks short for him, and afterward directed them to purchase the same stocks to fill the sale contracts, which they did, plaintiffs were entitled to recover the amounts so paid out or the balance remaining due thereon, even though the original short sales were intended as merely a wagering transaction, and no deliveries were contemplated; the indebtedness having arisen out of the subsequent purchases, to cover which it was clearly defendant's right to make at his election.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Gaming, 88 73-75.] At Law. On motion for new trial on the minutes.
Richard B. Whittmore and Thomas O. Hill, stockholders in the city of New York, in partnership as Whittmore & Co., sued A. Bell Malcomson, Jr., for a balance claimed to be due on account of certain transactions in stocks. At the trial the plaintiff had a verdict, and defendant made this motion on the minutes of the trial justice for a new trial. Further material facts appear in the opinion.
John H. Parsons, for the motion.
WHEELER, District Judge. The plaintiffs are stockbrokers. The defendant speculated in stock through them. In the latter part of the transactions he directed them to sell certain stocks short for him, but put up no margins. Their testimony tended to show that they kept memoranda of the sales and of the persons to whom sold, but not of the persons for whom sold, in making the sales; that by the defendant's direction they purchased and paid for some stock, and paid another firm for some bought, and reported to them to be paid for by his direction, to cover his sales. The defendant's testimony tended to show that in entering upon these transactions it was understood that the differences were to be adjusted and paid between them according to the market price of the stocks, without any actual sales or purchases. This
*This case has been heretofore reported in 16 Abb. N. C. 303, and is now published in this series, so as to include therein all Circuit and District Court cases elsewhere reported which have been inadvertently omitted from the Federal Reporter or the Federal Cases.