CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of the State of Georgia,

AT ATLANTA,

DECEMBER TERM, 1869.

PRESENT JOSEPH E. BROWN, CHIEF JUSTICE.
H. K. McCAY,

HIRAM WARNER, JUDGES.

JAMES STEWART AND A. S. CUTTS, plaintiffs in error, vs.
BENJAMIN MORDECAI, defendants in error.

(MCCAY, J., having been of counsel below, did not preside in this case.)

1. M., a citizen of South Carolina, commenced his action against C. and
S., in the Courts of this State, on a note and a proceeding to foreclose
a mortgage on real estate of S. Pending the actions, S. filed his bill
against M. and C., alleging that he was only a surety for C. on the
note and gave the mortgage on his real estate to M. for the accommo-
dation of C., and that C. had paid a large amount of usurious interest
to M., and that C. had consented to transfer to him his claim against
M., and prayed to be subrogated to the rights of C. and that the
usurious interest paid by C. might be credited on the note held by
M. M. filed his petition and affidavit, stating that he had reason to,
and did believe, that, from prejudice or local influence, he would not
be able to obtain justice in the State Court: Held, that M. had a right
to have the case transferred to the United States Circuit Court, under
the Acts of Congress passed 27th July, 1866, and 2d March, 1867.
2. The bill having been filed by S. against M., who was a citizen of a
State other than that in which the suit was brought, for the purpose of
"restraining or enjoining him," M., on making the affidavit, and giving
the bond required, was entitled to the transfer, as a final determination
VOL. XL-1.

Stewart and Cutts vs. Mordecai.

of the controversy, so far as it concerns him, can be had in the United States Courts, without the presence of C., the other defendant.

3. The affidavit filed in such case, can not, under the Act of Congress, be traversed in the State Court.

Motion to transfer case to United States Circuit Court. Before A. R. BROWN, Esq., Judge pro hac vice. Sumter Superior Court, April Term, 1869.

This cause was twice before this Court before. See Mordecai vs. Stewart, 36th Ga. R., 126, and 37th Ga. R., 364.

It will be remembered that Mordecai, a citizen of South Carolina, brought a suit against Cutts, as maker, and Stewart, as endorser, upon a promissory note, and began a statutory foreclosure of a mortgage made by Stewart to Mordecai to secure said note, and that Stewart had filed a bill against Mordecai and Cutts, averring, among other things, that Cutts was insolvent, that he, Stewart, was only an accommodation endorser, and that Cutts had paid Mordecai much usury, and prayed that Stewart, by subrogation, should have said usury credited on said note. This bill also enjoined Mordecai from dismissing his said suits. All this litigation was pending in April, 1869, in Sumter county, Georgia, of which Stewart and Cutts both are citizens.

Mordecai then petitioned the Superior Court of Sumter county for the removal of said causes into the Fifth Circuit Court of the United States for the Southern District of Georgia. Judge CLARK, being related to one of the parties, would not preside, and by consent, ADAM R. BROWN, Esq., a member of the bar, was made Judge pro hac vice.

The application was in proper form, and averred that Cutts was not a necessary party, in said Circuit Court, to the adjustment of the rights of Mordecai and Stewart.

Stewart's counsel proposed to traverse the averment in Mordecai's affidavit, that he had reason to believe, and did believe, that, from local influence, he would not be able to obtain justice in said causes in said State Court, but the Judge would not allow it traversed. They then objected to the removal to said Circuit Court, upon the grounds that