Page:Federal Reporter, 1st Series, Volume 6.djvu/761

 MACKATE V. MALLOET. 749 �question, ■which ean be determined ohly in this court, and cannot be finally determined here on this motion, but only on a regular trial hereaf ter; that, for the purposes of a removal, nothing can be permitted to eontravene the allegations of the petition in the particulars in which those allegations deny the allegations of the complaint as to the interest of George S. Mallory, or in the particulars in which a case within the removal statutes is affirmatively stated in the petition; and that, as the petition states that the suit is brought for the purpose of restraining or enjoining M. H. Mallory, that is suE&cient under said section 639, although the complaint asks an' injuhction against G. S, Mallory also. The principal contention on the part of the defei'd- ant is that, in this caee, the question whether the con- troversy between the plaintiff and M. H. Mallory can be determined fully an'd finally as between them, withoht'the presence of G. S. Mallory, can be decided ofily on the iiiiiai trial iii this cotirt ou all' the eYIdence to be taken; 'that as, on the alle^atiotis of the ptetition, the controversy niay be <jhe which, so far as cohcerns M. H. Mallory, caii be deter- mined without the presehce of G, S. Mallory, the case tahst' be retained by this court uritil if shall finally defeide thai matter; thai this court cannot grant this motioU' tiiiless if can certainiy see now that G. S. Mallory has such an irtteiest that it is clear the controversy, as betw'een the plaintiff aud M. H. Mallory, cannot be determiiied without the priesenee of the other defendant; and that, in respect to the inBOusist- eucy between the aHegatibns of the coruplaint and thoefe' of the petitiou', the latter mnst cdntrol, or else the case can never reach that stage where th^ matter can be definitely determined by this court. �Succinctly stated, the view urged is, that where the re- moval depends on the nature of the controversy, in respect to the necessary parties to it, the nature of the controversy is not dependent on the shape which the plaintiff gives to the controversy when it is developed by the proofs ; that when the petition for the removal avers the existence of such a ��� �