These views are not inconsistent with our rulings in Harper v. Insurance Co., 5 C. C. A. 505, 56 Fed. 281. The agreement there did not appropriate the agent's commissions to the payment of his indebtedness, and the creditor was under no sort of obligation to compel the agent to make such application. The insurance company, at its pleasure, might have required the agent to account for and pay over his commissions in excess of a certain monthly sum, but it had not engaged to do so, and owed no duty in that regard to the surety. The new schedule of commissions was no departure from the contract with the surety, and in no wise altered his position.

The point made by the defendant in error that the sureties could not in the court below raise the defense based on the change of the contract without previous notice thereof is not sustainable. No rule of court requiring such notice has been brought to our attention, and by the Pennsylvania procedure act of May 25, 1887 (P. L. 271), the defense was permissible under the plea of the general issue, and, indeed, a special plea setting it up was not allowable. Nor can we assent to the proposition that the burden of proof was upon the sureties to show that the alteration of the agreement of February 2, 1892, was without their consent. The cases cited in support of this position are inapplicable, for the sureties here were not the actors. The plaintiff set forth the supplementary agreement of June, 1892, in his statement of claim,-made it part of his case, and introduced it in evidence. The burden of proof, therefore, was upon him. Whart. Ev. § 357. We are unable to find in this record any evidence tending to show that John M. Sharp assented to, or even had knowledge of, the alteration of the agreement. This defense, then, avails him. But as respects the other surety, Clarence M. Busch, the case is different. It appears that he signed the supplementary agreement of June, 1892,-acting, it is true, as attorney in fact of one of the principals,-thus, "Joseph Busch, per C. M. Busch, Attorney." That he had full knowledge of the alteration is indisputable. Is he in any position to say that the alteration was without his assent, and, hence, that he is equitably absolved from his liability as surety upon the bond in suit? There is no evidence that he personally objected to the change. This, indeed, is not pretended. He gave no sign of dissatisfaction. The case, however, is not one of simple acquiescence. Clarence M. Busch was not merely passive. He took an active part in making the change in the contract. Without his co-operation the paper of June, 1892, would have been ineffective. He gave it validity. Surely, then, complaint in his mouth is out of place. Can he, under all the circumstances, fairly claim the benefit of the principle that an alteration of a contract without the surety's concurrence discharges him? In Edwards v. Coleman, 6 T. B. Mon. 567, cited by the plaintiffs in error, the surety signed as a mere witness. Moreover, at the time he was told that he was discharged, and with that understanding he attested the instrument. This case is essentially different. Here the surety joined in bringing about the change of which he now seeks to take advantage. His defense is absolutely devoid of merit. In Woodcock v. Railway Co., 1 Drew. 521, it was held that sureties were not released by an alteration in the

terms of the contract, where, as the solicitors of the principal debtors, they had knowledge of the transactions upon which they relied for their discharge, and assisted in the preparation of the instruments for carrying into effect the arrangements of which they complained. The evidence of assent is much stronger here. The surety Busch had knowledge of the proposed change, and participated in effecting it, actually executing the instrument whereby it was consummated. These facts, in the absence of any counteractive circumstance, well warrant the implication of the surety's concurrence in the change. The inference is reasonable and just.

The situation, then, is this: One of the two sureties assented to the alteration of the contract; the other did not. In this state of affairs, the nonassenting surety is discharged, but the other remains bound as before. Wolf v. Fink, 1 Pa. St. 435; Crosby v. Wyatt, 10 N. H. 318. The assenting surety, in such case, in effect agrees that he will stand as surety for the whole liability, and that his cosurety shall be released. Id. Where one of the several defendants sued upon a joint contract sets up a defense personal to himself, the approved practice is to allow a nolle prosequi as to that particular defendant, and to proceed against the others by verdict or judgment after the verdict, as the case may be. Minor v. Bank, 1 Pet. 46; Kurtz v. Becker, 5 Cranch, C. C. 671, Fed. Cas. No. 7,951; Commonwealth v. Nesbitt, 2 Pa. St. 16; Freedly v. Mitchell, Id. 100; Woodward v. Newhall, 1 Pick. 500; Burke v. Noble, 48 Pa. St. 168. In the court below the question of the discharge of the defendant Sharp was raised by prayers for instructions for a verdict in his favor. The court reserved the question of law involved, and a verdict against all the defendants was rendered. After verdict, Sharp moved for judgment in his favor, non obstante veredicto, which motion was dismissed, and judgment on the verdict entered against the defendants generally. In this state of the record the proper course, it seems to us, to pursue is to reverse the judgment, and remand the cause for further proceedings in conformity with the views expressed in this opinion. Accordingly, the judgment is reversed, and the cause is remanded to the circuit court, with directions to allow the plaintiff to enter a nolle prosequi as to the defendant John M. Sharp, and thereupon to enter judgment on the verdict against the other defendants.

Sur Motions to Amend the Reversing and Remanding Order. PER CURIAM. 1. The motion made by the plaintiff in error to amend our remanding order is denied, for reasons appearing in the opinion of the court heretofore filed.

2. Without meaning to intimate a doubt as to the right of the court, in the exercise of a sound discretion, to enter the judgment which the defendant in error now moves for, we must deny the application, for we are not satisfied that it would be proper for us to enter such a judgment, under all the circumstances of the case. We therefore adhere to our order reversing the joint judgment and remanding the cause for further proceedings in conformity with our conclusions.

KNIGHT v. INTERNATIONAL & G. N. RY. CO. et al.

(Circuit Court of Appeals, Fifth Circuit. April 10, 1894.)

No. 116.

1. REMOVAL OF CAUSES-TIME OF APPLICATION-REVIEW.

It is too late, on appeal, to raise the question that the application upon which the cause was removed from the state to the federal court was not made in time.

2. FALSE IMPRISONMENT-WHAT CONSTITUTES.

Defendant procured, from a judge having jurisdiction, a warrant for plaintiff's arrest, which was directed to the sheriff of any county in the state. It was delivered to the sheriff of S. county, who arrested plaintiff outside of his county, and took him to a third county, to be identified, before bringing him to S. county. Held, that there was no trespass for which defendant could be held liable in an action for false imprisonment. 3. MALICIOUS PROSECUTION-PROBABLE CAUSE-CONVICTION.

In an action for malicious prosecution, the conviction of plaintiff upon the charge complained of is prima facie evidence of probable cause for the prosecution, notwithstanding a new trial was granted, and a nolle subsequently entered by the state.

In Error to the Circuit Court of the United States for the Eastern District of Texas.

This was an action for malicious prosecution, brought by John Knight against the International & Great Northern Railway Company and the Missouri Pacific Railway Company, in which there was judgment for defendants, and plaintiff brings error.

Charles C. Leverett, for plaintiff in error.

Baker, Botts, Baker & Lovett, James Hagerman, and Farrar, Jonas & Kruttschnitt, for defendants in error.

Before PARDEE and McCORMICK, Circuit Judges.

PARDEE, Circuit Judge. The facts of this case appear to be that on January 19, 1885, in the nighttime, Robert Frazier, a conductor in charge of a passenger train of the International & Great Northern Railway Company, was murdered in Smith county, Tex., near Overton, in Rusk county, Tex. At Overton two men got on the forward end of the baggage car. One Hamp Riley, the porter of the train, saw them getting on, and went forward, and ordered them off. They each drew pistols, and refused to get off, whereupon Riley went back, and informed Ed. C. Powers, a brakeman. Both Riley and Powers then went forward to where the men were, and told them they would have to get off. The men refused to do so, pulled weapons, and threatened to shoot, whereupon Robert Frazier, the conductor, was informed, who then opened the door of the baggage car and stepped out on the platform where the two men were. The latter opened fire, shooting Frazier, who fell on the platform, and thence off into a ditch, dying of his wounds the next day. At the time of the shooting Powers was standing in the baggage car, just back of Frazier, and he received bullet wounds which, at the time, were considered fatal, but from which he subsequently recovered. Thomas Furlong, a special agent of the Missouri Pacific Railway

Company, proceeded to the scene of the murder, and, learning that suspicion strongly pointed to John Knight and John Price, who, besides, were more or less identified by the porter, Hamp Riley, went to Tyler, Smith county, Tex., and procured from the judge of the county court of that county a warrant for the arrest of Price and Knight, which was placed in the hands of one Clinkscales, sheriff of Smith county, for service. Clinkscales, with one regular deputy and Phil Wagner, M. McCabe, and Furlong, employes of the railroad company, whom he deputized, went to Overton, Rusk county, Tex., and arrested Price and Knight, and took them thence to Ft. Worth, Tex., (where Powers was in the hospital), for further identification. Powers identified both Price and Knight as the men who shot Frazier and himself. After the identification by Powers, both Price Both and Knight were carried to Smith county, and lodged in jail. were subsequently indicted for the murder of Frazier by the grand jury of Smith county. Price died before the trial. The railroad companies employed counsel to assist in the prosecution of Knight. Knight was tried on the indictment, and by a jury was found guilty, and was convicted of murder in the second degree; his punishment being fixed by the jury at 10 years in the penitentiary. Thereafter the court set aside the verdict, for a reason not apparent of record, After and subsequently a nolle prosequí was entered in his case. the end of the case in the court of Smith county, Knight instituted suit in the district court of Rusk county, Tex., against the International & Great Northern Railway Company, a corporation under the laws of the state of Texas, and the Missouri Pacific Railway Company, a corporation under the laws of the state of Missouri, for damages for false imprisonment and malicious prosecution in the gross sum of $75,000. Exactly when the said suit was instituted the record does not show. On the 29th of June, 1889, the Missouri Pacific Railway Company filed a petition in the district court of Rusk county to remove the said cause to the circuit court of the United States for the eastern district of Texas on the ground of prejudice and local influence, and on the same day filed in the circuit court for the eastern district of Texas a petition, affidavit, and bond to the same purport. Thereafter, on the 5th day of July, 1889, the state court, by order, directed the removal of the case, and the transcript was accordingly filed in the circuit court. On the 28th of the February following, the plaintiff made a motion in the circuit court to remand. the said cause on various grounds, which motion was subsequently amended January 11, 1892, after the lapse of several terms, during which the case was continued, so as to show the following reasons: (1) That the petition for removal is unsupported by any proof that there exists in Rusk county, Tex., prejudice or local influence, and because the existence of prejudice and local influence is not suffi ciently shown. (2) Because the record shows that this is not a suit (3) Because the petiwholly between citizens of different states. tion fails to show the citizenship of all the parties to the suit. (4) Because the affidavit in support of the petition for removal does not appear to have been made by authority. (5) Because the record shows a suit wherein the two defendants, the Missouri Pacific Rail

way Company and the International & Great Northern Railway Company, are sued jointly, and there is no separate controversy be tween citizens of different states. This motion to remand was overruled on January 11, 1892. Thereafter the case was put at issue, and tried in the circuit court. The amended original petition of the plaintiff sets forth his case in detail, therein alleging the facts hereinbefore recited; charging that the affidavit on which he was arrested and held was false; that the arrest was willful, malicious, and oppressive, and wholly without probable cause, and was illegal, and wholly without warrant of law, and was a wanton disregard of plaintiff's rights; that the imprisonment was illegal, and wholly without warrant of law, and wholly without probable cause, and made with malicious intent to vex, harass, mortify, and humiliate the plaintiff, and all of which the defendants well knew, to his damage, for which he claims vindictive damages in the sum of $25,000. In the second cause of action, which was for $50,000, for malicious prosecution, he charges, among other things, that the prosecution was wholly without probable cause, all of which defendants knew all the while; that the defendants pressed the prosecution against the plaintiff with all the possible vigor and power that money and means could command; that to insure the success of their diabolical plans to rob this plaintiff of his life by convicting him of the murder of said Frazier the defendants employed the ablest attorneys in the land to assist the state's attorney in the prosecution; that in their endeavor to convict the plaintiff on the charge of murder they brought to bear against him the whole power of the criminal courts of the country, and to convict the plaintiff on the charge of murder the defendants and their agents and detectives attempted to bribe witnesses to swear against the plaintiff; that the defendants, their agents and detectives, well knew at and before the beginning of said prosecution that the plaintiff was innocent of said charge of murder brought against him, and all the evidence showed conclusively that the plaintiff was not guilty of the murder of Frazier; that the defendants, with their hired and manufactured testimony, and with the assistance of attorneys, succeeded in securing a conviction against the plaintiff for murder in the second degree, with punishment of 10 years in the penitentiary, which judgment and conviction were afterwards set aside and vacated, etc. On the trial of the case, evidence was introduced by each side to maintain the respective issues, but no evidence was introduced of any kind tending to show that the conviction of the plaintiff in the district court of Smith county was obtained by fraud, false or perjured evidence, or by any unfair means whatever. During the trial some exceptions were taken to evidence as improperly admitted, and the plaintiff requested the court to give several favorable charges, which were refused. At the close of the evidence the judge instructed the jury as follows:

That, as plaintiff admitted he was arrested on complaint as charged in the petition, was thereafter indicted by the grand jury of Smith county, state of Texas, and in final trial by a petit jury of said county was convicted of murder in the second degree, and his punishment fixed at ten years in the penitentiary, and thereafter he was granted a new trial, and subsequently the prosecution was dismissed, that said conviction was prima facie evidence