Page:Federal Reporter, 1st Series, Volume 4.djvu/157

 CANDEE V, CITIZBNS' INS. flO. 143 �bank makes is an equitable claim, and prôperly set up and made in the manner it is. Wbether it is weli founded or not is one of the controversies in the case, and which properiy exists between the Bank of Fort Madison and the Black Eiver Lumber Company, and which can be wholly settled and determined, as between them, within the meaning of the second subdivision of section 2 of the removal act of 1875 ; as it is well settled that the position of the parties on the record, as to being plaintiff or defendant, is not material, provided there is such a controversy. �The lumber company as well as the bank are named in the complaint as defendants. But this controversy is substan- tially between the bank as plaintiff, and the lumber company as defendant, and may be determined wholly as between them without the presence of the other parties, though, as stock- holders, they would have an indirect interest. That interest is legally and fully represented by the corporation. �4. The reference of the petition to take testimony was not a trial of the case in any sense, so as to preclude a removal. Other evidence was to be taken upon deposition, and the final hearing was to be before the court. The petition for removal was made in proper time, and makes a clear case on its face for a removal, and there is nothing in the record to contra- dict the facts there set forth, and if the plaintiff wishes to put them in issue he can only do it by plea in abatement to the jurisdiction, in this court. �The case will be docketed in this court. ���Candee & Cô. V. The Citizens' Instieancb Co, �{Circuit Court, D. Conneetieut. , 1880.) �1. Insurance— PoLicY— Oral Promise— Custom— Evidence. �Motion for a new trial. �Shipman, D. J. This is a motion for a new trial of an action at law upon an insurance policy. The case was tried ����