Page 207 Stephen Bennett, The, Smith v. ..... 284 Page Trudeau, The J. E. (C. C. A.).... 907 ed Min. Co. v. (C. C. A.)....... 262 Tyler Mining Co. v. Sweeney (C. 634 284 Y. (C. C.)....... Union Pac. R. Co. v. Colorado ..... Taylor Bros. Iron-Works Co., (C. C. A.). United States v. Adams (C. C.).. 82 United States v. Battle & Co. (C. C. A.)... 23 87 114 141 United States v. Bee (C. C. A.).. 112 85 United States v. Burns (C. C.).. 351 United States v. Chapel (D. C.).. 140 82 United States v. David Burns (C. C.) .. 351 United States v. Davis (C. C. A.), 147 United States v. Ducournau (C. C.) 138 United States v. Ferguson (C. C.) 28 United States v. Field (C. C. A.) 367 United States v. Giller (C. C.)... 656 United States v. Goodrich (C. C. 82 Texas & P. R. Co. v. Kuteman (C. C. A.). 547 Thomson-Houston Electric Co. v. 166 490 United States v. Patrick (C. C.).. 338 United States v. Shapleigh (C. C. A.) 126 United States v. Singleton (D. C.) 488 United States v. Turner (C. C.).. 228 United States v. Willamette Val. & C. M. Wagon-Road Co. (C. C.) 807 United States, Fitzsimmons v. (C. 994 812 United States, Kinney v. (C. C.) 313 Waterloo Min. Co., Doe v. (C. C.) 935 Witters, Sowles v. (C C.)........ 568 Waterman, Greenwich Ins. v. (O. C. A.).. Co. 839 34 Webb, Kinne v. (C. C. A.). 634 504 ..... 197 386 Wood v. Braxton (C. C.).........1003 994 179 dall (D. C.).... 411 Wierk, Randall v. (D. C.)....... 411 Wilder, Whitney v. (C. C. A.)....... 554 Willamette Val. & C. M. WagonRoad Co., United States v. (C. O.) ..... 807 CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS. CITY OF DETROIT v. DETROIT CITY RY. CO. et al. (Circuit Court, E. D. Michigan. January 5, 1893.) 1. REMOVAL OF CAUSES-LOCAL PREJUDICE-PARTIES. In a suit by the city of Detroit as sole plaintiff against a street-railway company of that city and others, some of whom are citizens of the state, praying "that the franchise be decreed to expire," and the company compelled to vacate the streets, a nonresident mortgagee of the company is entitled, under Act Aug. 13, 1888, § 2, (25 St. p. 435,) to remove the cause to a federal court when local prejudice is shown. Whelan v. Railroad Co., 35 Fed. Rep. 849, followed. SAME-LOCAL PREJUDICE. The right of removal to a federal court on the ground of local prejudice extends not only to cases where such prejudice would affect the jury, but also to those in which the decisions of the judge as to questions of law or fact may be affected thereby. Burgess v. Seligman, 2 Sup. Ct. Rep. 10, 107 U. S. 33, followed. 8 SAME-PETITION FOR REMOVAL-TIME OF FILING. Under the law of Michigan, a decree by default against a nonresident, brought in by publication only, can be set aside by him as a matter of right. Held, that a nonresident respondent, brought in by publication, against whom an order pro confesso before decree was entered, but was afterwards set aside, could file its petition for removal to a federal court under Act March 3, 1875, at the term at which a hearing could first be had on its answer. McDonald v. McDonald, 7 N. W. Rep. 230, and Harter v. Kernochan, 103 U. S. 562, followed. 4. SAME. By the law of Michigan, where a respondent is served by publication, and is misnamed as "The Washington Trust Co.," the true name being "The Washington Trust Co. of the City of New York," an order pro confesso against such absent respondent is void, and there can be no trial on such order so as to bar its right of removal to a federal court, under Act March 3, 1875, providing that such removal must be before the trial of the suit. Guarantee Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 11 Sup. Ct. Rep. 512, 139 U. S. 137, followed. 8. SAME. Chancery rule 27 of the circuit courts of Michigan gives a complainant 20 days to except against the answer, at the end of which time, if no exception is taken, the answer is deemed sufficient. Rule 45 gives a complainant. 20 days after the answer is deemed sufficient to file a general v.54F.no.1-1 replication putting the case at issue. If no replication is filed, the cause stands for hearing on bill and answer. Held that, where a new term would begin before the expiration of 40 days after the filing of the answer, the respondent may at such new term remove the cause to a federal court on the ground of local prejudice, under Act Aug. 13, 1888, § 2, (25 St. p. 435,) although the complainant might have set the case down for hearing on bill and answer at the prior term, waiving its right to exceptions and a replication, no such waiver having been actually made. 6. SAME. Under Act Aug. 13, 1888, § 2, (25 St. p. 435,) a cause may be removed to a federal court on the ground of local prejudice at any time before the first trial thereof is actually held, although such trial might have been held before the date of the application for removal. Fisk v. Henarie, 12 Sup. Ct. Rep. 207, 142 U. S. 459, explained and followed. 7. SAME-FORM OF AFFIDAVIT. An order for removal of a cause to a federal court is interlocutory in its nature, and the affidavit need not state that the facts are sworn to of the personal knowledge of the affiant, but it is sufficient that they are of his opinion and belief, if he is a credible person, and the facts on which such belief is based are given. 8. SAME-LOCAL PREJUdice. On an application by a nonresident mortgagee of a street-railway company for removal of a suit against the company to a federal court, an affidavit by the applicant's agent, stating that there is prejudice and local influence; that a riot against the company has received much public sympathy; that the city authorities have refused to protect the employes and property of the company against the rioters; that a public meeting, attended by citizens of all classes and by the municipal officers, has advised the bringing of the suit; and that the judges who would try the case in the state court are shortly to stand for re-election,-shows sufficient ground for removal to a federal court. 9. SAME. The right of removal to a federal court on the ground of local prejudice exists although the applicant, if defeated in the trial court, has the right of appeal to a state supreme court, as to which no local prejudice is alleged. 10. SAME-STATE COURT-INABILITY TO GET JUSTICE. The fact that a decision by state judges adversely to a party would expose them to local criticism and ill will, and endanger their chances of reelection, is sufficient to show that such party will not be able to obtain Justice in such court within the meaning of Act Aug. 13, 1888, § 2, (25 St. p. 435,) regulating removals from state to federal courts, irrespective of the fact that the state judges would probably rise above such local prejudice and render an entirely disinterested decision. In Equity. Bill in the circuit court of Wayne county, Mich., by the city of Detroit against the Detroit City Railway Company, the Detroit Citizens' Street-Railway Company, Sidney D. Miller and William K. Muir, trustees, and the Washington Trust Company of the City of New York. The Washington Trust Company of the City of New York removed the cause to the federal circuit court, and it is now on motion to remand. Denied. Charles A. Kent and Benton Hanchett, for complainant. Henry M. Duffield, John C. Donnelly, Ashley Pond, and Otto Kirchner, for defendants. Before TAFT, Circuit Judge, and SEVERENS and SWAN, District Judges. TAFT, Circuit Judge. This is a motion to remand a suit in equity, which has been removed here from the circuit court of Wayne county, Mich. The averments of the bill filed by the city of Detroit, stated generally, are that the Detroit Citizens' Street Railway is in the possession and enjoyment of a franchise to operate street railways in a number of the streets of the city; that by virtue of a limitation of the constitution of the state of Michigan the franchise will expire May 9, 1893; that the railway company claims that the franchise will not expire until 1909; that the city wishes to sell the franchise at once, so as to enable the purchaser to make necessary preparations to operate railways in May, 1893, but that the claim of the company prevents the sale. The prayer of the petition is that the franchise of the company be decreed to expire as claimed by complainant, and that a mandatory injunction issue, compelling the defendant company to vacate the streets with its tracks, etc., in May, 1893. The Detroit City Railway, upon which the franchise was originally conferred, and from which, in 1891, by mesne conveyance, the present company obtained it, is made a party. Two deeds of trust conveying this franchise were given,the one by the Detroit City Railway, in 1890, to Miller and Muir, trustees, to secure bonds amounting to $1,000,000; and the other by the Detroit Citizens' Street-Railway Company to the Washington Trust Company of the city of New York, to secure $2,000,000 of bonds. The trustees under the deeds of trust are made parties to the bill. The bill was filed March 15, 1892. An order for service by publication on the proper affidavit was taken against the Washington Trust Company March 22d. All the defendants except the trust company were personally served, their appearances were duly entered, and their separate answers filed. The answers set forth additional details in the history of the franchises enjoyed by the railway company, deny that they will expire in May, 1893, and aver facts which are said to estop the complainant from claiming as in its bill. On August 13th, proof of publication against the Washington Trust Company was made. The notice published advised the Washington Trust Company of the pendency of a suit described as a suit of the City of Detroit against the City Railway Company, the Detroit Citizens' Street-Railway Company, Sidney D. Miller and William K. Muir, trustees, and the Washington Trust Company. An order pro confesso was taken on the same day against the Washington Trust Company. On August 19, 1892, the following entry was made in the case: "It is hereby stipulated and agreed that the default heretofore entered in this cause against the Washington Trust Company of the City of New York, one of the defendants herein, for nonappearance in said cause, may be set aside, and that said defendant may answer to the bill of complaint filed in said cause." On the same day the answer was filed. The corporate name of the trust company is "The Washington Trust Company of the City of New York," the words "of the City of New York" being a part thereof. On the 26th day of August the solicitor for the complainant served the solicitor for the trust company with notice that |