court proceed no further therein, and the qualified executors," &c., introthat all proceedings in this court in duced by the plaintiff in the title of the said cause be and the same are the suit, and strictly followed afterhereby stayed." wards, is fairly to be interpreted as (1.) It is contended that section 3 meaning and reading "sued as qualof the Act of March 3d, 1875 (18 U. ified executors," &c. The petition S. Stat. at Large, 471), provides only is fairly to be read as averring that that a "party "may make and file James M. Brown and Howard Pota petition," and does not provide ter, sued as qualified executors, are that an attorney may; and that if citizens, &c., meaning that they peran attorney in fact may, the fact of sonally, sued as executors, are citihis attorneyship and its scope must zens, &c. The averment as to James be shown to the State court. M. Brown and Howard Potter must The order of the State court be taken in the same sense as the states that the petition was duly averment as to Schultze, which is, made and filed by the petitioners that he, " also a qualified executor," named, and that such petitioners ap- is a citizen, &c., and as averring pear by Mr. McCullough, as their substantially that they, qualified counsel, and move for the order executors, &c., are citizens, &c., rewhich the court makes. jecting the words "as they are Clarence A. Seward and Charles M. as surplusage. Then there is the Da Costa, for plff. averment of the petition, that the Clarkson N. Potter and J. G. Mc- controversy is "between foreign Cullough, for defts. citizens or subjects and citizens of Held, that Wostenholme stands as different States of the United an unnecessary and improper party States." Taken in connection with to the suit, and no real and actual the above cited averments in the party. This being so, it follows that complaint, and the declaration of the suit was removable under the the State court, in the order, as to first clause of section 2 of the Act the citizenship of the defendants, of 1875, as being a suit in which which must be held to refer to their there is a controversy between citi- personal citizenship, showing the zens of various States of the United interpretation given by the State States and a foreign citizen or sub- Court to the averments of the petiject, and where all the parties de- tion, and the fact that the State fendant have applied for the re- court surrendered its jurisdiction, moval, and where such controversy the State court could not properly is the only controversy there is in infer, and did not infer, nor can this the suit. The petition for removal court infer, that, as persons, James makes out a case under said first M. Brown and Howard Potter were clause, although it may be framed not citizens of New York. so as to attempt to make out also a case under the second clause of the same section. That the want of acknowledgment or proof of the execution of the bond was a matter of practice for That the expression "as they are the State court to pass upon, and it will not be reviewed by this court will," parties defendant, and proafter the State court has accepted ceeded against them by publication. the bond. Meyer v. Construc- The action went to judgment and tion Co., 12 Chicago Legal News, sale, but the purchaser declined to 135. That the clause in the condition providing that the defendants shall "do or cause to be done such other and appropriate acts," &c., is a sufficient compliance with any requirement in section 3 of the Act of 1875, that the bond shall be one for appearing in the Federal Court. The motion to remand the cause to the State court is denied. Opinion by Blatchford, J. ORDER OF PUBLICATION. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Eliza A. Green, respt., v. Richard Squires, applt. Decided Feb. 6, 1880. An order of publication under section 440 of the Code is sufficient, although the order desig nating two newspapers does not in terms designate them in the order as most likely to give notice to the defendant. Where the language used in the order of publication is the equivalent of the statutory expression, and there is a substantial compliance with the statute, the order of publica tion is valid. complete, on the ground that the order of publication was void, in that it omitted to state in the provision dispensing with the mailing, &c., &c., that the judge was satisfied "by the affidavits on which the order was granted." Second, That the papers in which the publication of the summons was directed, under section 440 of the Code, were not "designated in the order as most likely to give notice to the defendant." G. E. Horne, for applt. Held, We think the objections taken to the validity of the order of publication are untenable; the order requires the publication to be made in the State paper and in the Daily Register. That is a substantial compliance with the provision that the publication must be in two newspapers "designated in the order as most likely to give notice to the defendant." The law requiring the summons to be published in the State paper (the parties being unknown) and the Daily Register, necessarily declares that those official newspapers are most likely to give the required notice. Appeal by W. C. Lester from an order compelling him to complete Furthermore, the statement conhis purchase on a foreclosure sale. tained in the order, dispensing with This is an action to foreclose a the mailing, that it is made upon mortgage. The mortgagor died certain affidavits, followed by the seized of the premises (apparently words, "it satisfactorily appearing intestate), and her heir-at-law was to me," &c., is the equivalent of a made a party defendant. The plain- statement that the judge being sattiff, for greater security, made "the isfied, by the affidavits upon which unknown devisees, under a supposed the order was granted, that the plain tiff cannot, with reasonable diligence, The charter party was brought to ascertain, &c., the wording is sub- the defendant on the 4th day of stantially a statement that the June, which is the day it bears date, judge, being satisfied by the affidavit, &c., dispenses with the deposit. by one of the plaintiffs, and the defendant offered in substance to show that Mr. Edye, one of the plaintiff's, The order should be affirmed, with was told at that time that the char$10 costs and disbursements. ter was desired for a shipment in Opinion by Barrett, J.; Davis, P. June, and that the time when the J., concuring. MUTUAL MISTAKE OF FACT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Christian F. French et al., respt., v. Max Abenheim, applt. Decided Feb. 6, 1880. The agents of the owners of a steamship may, as trustees of an express trust, maintain an action upon a charter party entered into between said agents and the charterers of the steamship. A party is not bound by a contract entered into under a mutual mistake of a material fact on the part of both parties to the contract. Such mutual mistake, with respect to a material fact, is available as a defense to an action upon such contract. Where a steamship is chartered to arrive at the port of New York, which at the time is unlading in a foreign port, it is incumbent upon the owners to show reasonable diligence in bringing the steamship to the port of New York. Appeal from judgment entered upon the verdict of the jury and from order denying motion for a new trial. vessel would sail from London was material; that Mr. Edye then said he would telegraph to London to find out when she sailed; that the next day he came to defendant and stated that he had so telegraphed to London, and exhibited a telegramı which he said was an answer to said inquiry; that the telegram was understood by both of them as stating that the vessel sailed on June 5th, and Mr. Edye verbally stated also, "this vessel sails to-day, the 5th;" that thereupon the charter was executed by the defendant; that, on the 25th of June, in answer to an inquiry from the defendant, the plaintiffs wrote him that the vessel had sailed on the 5th; and that Mr. Edye was mistaken at the time he made his statement as to the fact that the vessel sailed on the 5th of June; that, in fact, she did not sail until the 23d of June, and that both parties acted in making the contract under a mutual mistake as to the fact that a telegram had been sent over to ascertain when she sailed, and a reply received that she had sailed on that day, the 5th of June. Action on a charter party, bearEvidence of these facts was exing date on the 4th of June, 1874, cluded by the court upon plaintiff's made between the plaintiffs as objection, and the defendant duly agents for the owners of the steam- excepted. The court below overship Royal Standard and the defend- ruled the defendant's offer to show ant. that the parties did not exercise due diligence in the discharge of the the port of New York. The law cargo of the Royal Standard in June, required that she should pro1874, whereby she was delayed in ceed with reasonable diligence. 12 her arrival here, and ruled that it N. Y., 561. Held further, The court was not incumbent upon the plain- erred in excluding the offer of detiffs to show that reasonable dili- fendant's counsel to show that the gence had been used by them in bringing the ship to the port of New York. Frank D. Sturges, for applt. parties did not exercise due diligence in the discharge of the cargo of the Royal Standard, in June, 1874, whereby she was delayed in her arrival here. Held, That the action was prop- Held further, That the contract erly brought in the name of the was broken by the notice given by plaintiffs as Trustees of an express the defendants to the plaintiffs on trust, under the provision of the the 26th of June that they would Code, sections 111,113. 22 N.Y.,389. not perform it. 42 N. Y., 246; 43 The judgment should be reversed and a new trial ordered, with costs to abide event. Held further, Thatthe court N. Y., 231. And it was the duty of erred in excluding the offer to plaintiff, as soon as due notice was show that the contract had been given, to have so acted as to save entered into by defendant under the defendant from further damage a mutual mistake of fact ma- so far as it was in his power, and the terial to the transaction, and in- performance of this duty called for ducing or influencing the agreement, affirmative action on his part. 28 believed by both to have been ex- N. Y., 72. isting, but in which belief both were honestly mistaken. Such mutual mistake was available to the defendant as a defense and could not properly be excluded, inasmuch as parol proof of such facts were, in no just sense, in conflict with the express or implied provisions of the written contract. We think the defendant had the right to refuse, as he did, to go on under the contract when he learned the real state of facts in respect to the sailing of the vessel. 8 Otto, 89; 2 Cow., 129; 14 N. Y., 143; 43 N. Y., 159; 11 Hun, 210. Opinion by Davis P. J., Ingalls, J., concuring. ILLEGAL ASSESSMENT. MONEY PAID. N. Y. COURT OF APPEALS. Wilkes, applt., v. The Mayor, &c., of N. Y., respt. Decided Dec. 16, 1879. An action will not lie to recover back money voluntarily paid for an illegal assessment. Held further, That the court erred This action was brought to rein holding that it was not incum-cover money paid for an illegal asbent upon the plaintiffs to show that sessment upon certain lots of land. reasonable diligence had been used The assessment was irregular, but by them in bringing the ship to had never been vacated or set aside. The money was paid voluntarily. ranty as a defense, and the referee It appeared that assessments laid before whom the case was tried, upon other lots in the same pro- found for the defendants on that ceedings have been vacated. George S. Wilkes, applt. in person. Held, That plaintiff was not entitled to maintain this action, 37 N. Y., 514; 43 id. 184; 70 id., 502. Judgment of General Term, affirming judgment dismissing complaint affirmed. con Opinion by Earl, J. All curred except Folger, J., absent. EVIDENCE. N. Y. COURT OF APPEALS. issue. This finding was affirmed by the General Term, and was supported by the evidence. Upon the trial, plaintiff had, upon the question, whether there was a breach of warrant, introduced evidence as to the value of his invention. Plaintiff's principal witness was asked as to the condition of the cotton as to cleanliness as it came from different machines, and replied that from plaintiff's gin it was clearer and whiter, and from comparision he spoke of the greater production of one machine over the other, the quality of its works, economy of operation, facility of repair, Scattergood, applt., v. Wood et al., in each instance giving an opinion. respts. Decided Dec. 19, 1879. In an action on a contract for the sale of an invention in cotton gins and letters patent issued thereon, where the defense was a breach of warranty "that it was equal in all respects to the best saw gin then in use;" plaintiff introduced evidence as to the value of his gin as compared with others. Defendants also introduced similar Plaintiff as a witness referred to the contract and said, that when it was made he was acquainted with the various saw gins then in use, and upon being asked how they compared with his at the time the contract was executed in their operation and working, answered that they were very inferior to his-sim evidence on their part. Held, That defend- ilar testimony was given by two ants' evidence was competent to meet the evidence introduced by plaintiff, and that it was competent to take the opinions of competent persons as to the practical working of the invention and its comparative value. Affirming S. C., 6 W. Dig., 458. other witnesses of plaintiff. Defendants introduced similar evidence on their part. Plaintiff claimed that the reception of this evidence was erroneous. J. E. Dewey, for applt. This was an action upon a contract by which plaintiff agreed to Held, No error; that the evidence sell to defendants an invention in was competent to meet the similar cotton gins, and the letters patent evidence introduced by plaintiff also; issued thereon, which he warranted that it was competent to take the "to be equal in all respects to the opinions of competent persons as to best saw gin then in use." Defend- the practical working of the invenants set up a breach of this war- tion and its comparative value; that |