Page:Federal Reporter, 1st Series, Volume 10.djvu/276

 264 FEDERAL REPORTER. �and received from that bank the purchase priee, and delivered the note to the bank. The defendants gave to the plaintiffs a check on a bank for the proceeds of the note, less $3.77 commission, Before the check was presented to the bank or paid, the Hanover Bank, having ascertained that when the note was sold the makers of it, a firm in New Orleans, had suspended payment, notified the defendants of the fact, and tendered the note back to them, and demanded baok the pvirchase money. Thereupon the defendants stopped the payment of the check, The plaintiffs, citizens of Pennsylvania, then brought this suit in this court against the defendants, citizens of New York. The Hanover National Bank appears by the papers to be a corpora- tion doihg business in the city of New York, and having its place of business in that city, and to be a banking association created by and under the laws of the United States, It is, therefore, to be regarded as a citizen of New York. This suit is a suit on the check which the defendants gave to the plaintiffs, and the amount sought to be recov- ered is $1,486.41, with interest from November 29, 1881. The amount of the claim of the Hanover Bank against the defendants is $1,490.18, with interest from November 30, 1881. This suit was commenced December 19, 1881. �It is provided, by section 820 of the New York Code of Civil Pro- cedure, that a defendant, against whom an action to recover upon a contract is pending, may, at any time before answer, upon proof by afSdavit that a person not a party to the action makes a demand against him for the same debt, without collusion with him, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his pajing into court the amount of the debt ; and that the court may, in its discretion, make such an order. This is a proceeding in a suit at law to substitute one defendant for another. It is a proceeding adopted by section 914 of the Revised Statutes. The defendants, before answer, served on the Hanover Bank and on the attorney for the plaintiffs, on the tenth of January, 1882, the proper papers, with notice of an application to be made to this court on the thirteenth of January to substitute the Hanover Bank in the place of the defendants, and to diseharge the defendants from liability to either the plaintiffs or the Hanover Bank concerning the claim or debt mentioned in the complaint herein, on the defend- ants paying into this court $1,486.41. The application was ad- journed by consent from January 13th to January 20th, and was made on the latter day. On January 19th or 30th the Hanover Bank ��� �