Page:Federal Reporter, 1st Series, Volume 4.djvu/156

 142 FEDERAL REPORTER. �npon several grounds : First, that the stipulation by whicb a receiver was appointee! and the chattel mortgage cancelled put an end to the controversy; eecond, that the claim of the defendant bank, set up in its petition and answer, is a legal counter claim, and not triable in an equity case; third, that there has been no issue joined on the defendant's answer or petition, and therefore there is no controversy ; fowrth, that the defendant, by stipulating to have the petition referred to take testimony, and by appearing before the referee and taking testimony, has waived its right of removal. I think neither of these objections good. �1. The stipulation did not put an end to the controversy. It but changes its form and scope in a degree. The suit and much of the controversy still remains. The mortgage itself is not in issue, but the settlement of the affairs of the lumber Company, under a receivership, as well as the just grounds, validity, amount, and preference of the claim of the bank over the creditors, are still unsettled, and on controversies still pending, if not fully at issue. �2. That these controversies are not as fully at issue as they might be by the filing of a reply, is no objection to a removal. If no reply should ever be filed it would still be incumbent on the defendant to establish, by proof, the just amount and grounds of its claim, and to satisfy the conscience of the court in regard to its alleged right of preference. It is not like a mere default when there is no judicial function to be performed. �3. The objection that the claim of defendant is a legal claim and cannot be tried in this suit is untenable. Considered as a legal claim, it is still a proper matter of controversy in a suit where one of the express objecta is to close up the present afïairs of the company, so far as the sale of the prop- erty and payment of the debts are concerned. �The court might, in such a case, order the issue to be tried by a jury, upon the law side of the court, but the fact of its being a legal, as distinguished from an equitable, elaim, has no bearing upon the question of the right of removal. But I think in a suit in chancery, like this, the claim which the ����