Page:Federal Reporter, 1st Series, Volume 6.djvu/759

 MACKAYB V. MALLOUY. 747 �interested, and in which he is the only defendant actually interested; that, so far aa it relates to him, the said suit is brought for the purpose of restraining and enjoining hitu, and is a suit in which there can be a final determination of the controversy, so far as cdncerns him, -without the presence of the other defendant aa a party in the cause; that said action or suit is brought by the plaintiff therein to obtain an adjudication that a contract made between plaintiff and thia petitioner has been rescinded, and a reconveyance to the plaintiff of a certain play khown as 'Hazel Kirke,' and of a certain invention, which said play and invention had been assigned to this defendant by the plaintiff by and in pursu- ance of said contract, and for an account of profits under said contract, and for an injunction restraining this defend-^ ant from performing or exhibiting said play or using the said invention, and for a reoeiver of said play and invention; that the defendant George S. Mallory, as appears from the complaint in said action, is made a defendant therein by rea- son of his having obtained from this petitioner an interest in said contract, and in property and assets which had been accumulated by this petitioner under the operation of said contract, and by reason of his having or olaiming Bueh inter- est adverse to the plaintiff; but this petitioner saysthat said allegations of said complaint iespecting said George 8. Mal- lory are wholly untrue, and that said George S. Mallory has not, and ne ver has had, any interest in said contrait, or in said property oi* assets so alleged to have beeii acctimulated, and has never received any of tiie profits arising from the enter- prises mentioned in said contract;" and' that the petitioneri "desires to remove the said suit, or to remote the same a» against your petitioner, into the circuit court of the United States for the southern district of New York." �On this petition, and a bond, the defendant M. H.' Mallory moved in the state court, on notice to the plaintiff, that the court accept said petition, bond, and surety, and proceed no further in the action, or no further therein against him. The motion was opposed by the plaintiff, and'the court deniedit; and ordered "that the court do proceed in the action." In ��� �