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some of the cases maintain, against attaching credit- 534; Farmers' Loan & Trust Co. v. Commercial Bank, ors, especially where they have actual notice of the 11 Wis. 207. In the case at bar the plaintiff has never mortgage. Holroyd v. Marshall, 10 H. L. 191; Mitchell acquired the legal title in this way, for he has never v. Winslow, 2 Story, 630; Pennock et al. v. Coe, 23 How. | been in possession of the property. (U. S.) 117; Galveston R. R. Co. v. Cowdrey, 11 Wall. The plaintiff also claims to be entitled to recover 459; United States v. New Orleans R. R. Co., 12 id. upon the authority of Abbott v. Goodwin, 20 Me. 409. 362; Butt v. Ellett, 19 id. 544; Smithurst v. Edmunds, The mortgage in that case was not a mortgage of prop14 N. J. Eq. 408; Tedford v. Wilson, 3 Head, 311; Sillers erty to be subsequently acquired. It was a mortgage et ux. v. Lester, 48 Miss. 513; Seymour v. Canandaigua given to secure the payment of certain notes upon a & Niagara Falls R. R. Co., 25 Barb. S. C. 284. The

stock of goods then in the possession of the mortgagor, ground of these decisions is that the mortgage, though and contained a stipulation that the mortgagor should inoperative as a conveyance, is operative as an execu

retain possession of the goods, “and pay over and tory contract which attaches to the property when account for the proceeds of all sales of said goods to acquired, and in equity transfers the beneficial interest

them (the mortgagees), to be applied in payment of to the mortgagee, the mortgagor being held as trustee said notes, or directly to apply said proceeds to the for him, in accordance with the familiar maxim that

payment of said notes, at the discretiou" of the mortequity considers that done which ought to be done.

gagees. The action was trespass for taking four hunBut in the case at bar the plaintiff is not suing in

dred casks of lime, obtained by the mortgagor in equity, but at law in an action of trover for the tortious

exchange for goods or the proceeds of goods mortgaged conversion of the property, and is suing not a mere

to the plaintiffs. The court sustained the action, holdwrong-doer, but the persons having the legal owner

ing that the lime must be considered as substituted for ship of the property, and certainly, therefore, cannot

and representing the goods which were mortgaged, prevail without proof of something more than a merely

having been exchanged for them or their proceeds, by equitable title or interest. He ought to prove that he

the mortgagor acting as the agent of the mortgagees. has the legal title or ownership, either general or

In the case at bar there was no stipulation reserving special, and the right of present possession. Fulton,

to the mortgagee control of the proceeds of the propAdm'r, v. Fulton, 48 Barb. S. C. 581; Herring v. Tilgh

erty sold by the mortgagor, and, moreover, there is no man et al., 13' Ired. 392; Killian, Adm'r, v. Carrol, id.

evidence that the new property was paid for out of the 431 ; Lonsdale v. Fairbrother, 10 R. I. 327.

proceeds of the old, or, in fact, that it was paid for at It is true, language was used in some of the cases

all, though there is evidence that it was acquired to above cited, decided in the Supreme Court of the

renew or replace the old. We think, therefore, the United States, which seems to go beyond what we

case of Abbott y. Goodwin, 20 Me. 408, is not an authorhave stated to be the effect of the cases; but the cases

ity which can control the case at bar. And see Rhines referred to were cases in equity, and we presume,

v. Phelps, 8 III. 455; Holly v. Brown, 14 Conn. 255, 265; therefore, the language was designed to express the

Levy v. Welch, % Edw. Ch. 438; Chapin v. Cram, 40 rule in equity, and not at law, except in so far as the

Me. 561. rule at law had been modified by statute, or, the cases being railway cases, in so far as the rule may be re

In Hamilton v. Rogers, 8 MD. 301, it was held that a garded as modified by considering the rolling stock and

mortgage of goods in a store, "together with all reequipment of a railroad as fixtures. And see The

newals and substitutions for the same or any part or Fariners' Loan & Trust Co. v. Hendrickson, 25 Barb.

parts thereof," did not convey subsequently-acquired S. C. 484; Pierce v. Emery, 32 N. H. 484.

goods so as to give the mortgagee an action at law The plaintiff's counsel claims that there are cases at

against a party seizing them. And Rose et al. v. Beran, law upon the authority of which he is entitled to

10 Md. 466, maintains that the rule is the same even recover. He cites Chapman v. Weimer et al., 4 Ohio

though the new goods are paid for out of the proceeds St. 481; Carr v. Allatt, 3 H. & N. 964; Chidell v. Gals

of the old. And in Massachusetts, such mortgages worthy, 6 C. B. (N. S.) 470. In these cases possession

have been repeatedly condemned as ineffectual to conof the after-acquired property had been given to the

fer any title to the goods subsequently acquired, though mortgagee, or lawfully taken by him under the mort

acquired in the usual course of business, and by way gage, and it was for this reason that the mortgagee was

of substitution for goods which were mortgaged. Jones held to have acquired the legal title, and not because

v. Richardson, 10 Metc. 481; Moody v. Wright, 13 id. it was supposed the mortgage itself was effectual to

17; Barnard v. Eaton et al., 2 Cush. 294. And see Codtransfer it. There are numerous cases which hold that,

| man v. Freeman, 3 id. 306. In the case at bar the only though the mortgage per se is inoperative to transfer fact proved is that the new goods were acquired in the legal title, possession so given or taken under it | the usual course of business to replace the old. We transfers the legal title to the mortgagee, being the do not think this is enough to give the mortgagee the Novus actus interveniens required by Lord Bacon's

same title in the new goods which he had in the old, Maxim to give effect to the mortgage as a declaratio | or in fact to give him any legal title in them. The præcedens. The maxim is “Licet dispositio de interesse

plaintiff contends that the defendants are estopped futuro sit inutilis, tamen fieri potest declaratio præce from denying his title. The facts set up by the defenddens quæ sortiatur effectum, interveniente novo actu.ants are not in contradiction of, but in conformity Broom's Legal Maxims, 498; Hope v. Hayley, 5 El. & B.

with the mortgages. The mortgages contain no express 830; also in 34 Eug. Law & Eq. 189; Langton v. Horton, covenants of title. The case, therefore, discloses no 1 Hare, 549; Congreve v. Evetts, 10 Exch. 298; also in

| ground for the application of the doctrine of estoppel. 26 Eng. Law & Eq. 493; Baker et al. v. Gray et al., 17 C.

Chynoweth v. Tenney et al., 10 Wis. 397. B. 462; Carrington v. Smith, 8 Pick. 419; Rowley v. | We decide tbat the plaintiff cannot recover in this Rice, 11 Metc. 333; Rowan v. Sharp's Rifle Manuf. Co., | action for goods acquired after the mortgage was given. 29 Conn. 282; Tilus et al. v. Mabee et al., 25 Ill. 257; | The court also find the defendants not guilty of conCnapin v. Cram, 40 Me. 561; Bryan v. Smith, 22 Ala. I verting the remainder of the property. The evidenc

shows that the defendants refused to surrender all the a reservoir and laid a two-inch pipe, which did not property to the plaintiff; it does not show to the sat carry all the water flowing from the spring, but left a isfaction of the court that they refused to surrender surplus sufficient for plaintiff's use. In 1871 defend80 much of the property as was on hand when the ant enlarged the reservoir and laid a four-inch pipe, mortgage was given.

which carried away all the water from the spring, POTTER, J. While I cannot concur in all the state leaving not enough for plaintiff's use. In an action ments of law in the opinion of the majority of the for the damage done thereby, held, that the acts of the court, I concur in the result.

parties before and immediately after the execution of So long as we maintain the system of forms of actions the deed might be taken into consideration for the which we have inherited from England, and by which | purpose of learning the intention of the parties and justice is so often sacrificed to mere technicalities, we defining and limiting the easement, that although must hold that an action of trover cannot be sustained there was in the deed no specification as to where the in a case like the present.

pipe should be laid and its size, the company by its acJudgment for the defendant for his costs. tion fixed the easement as to those matters and could

thereafter lay its pipes in no other place than the one COURT OF APPEALS ABSTRACT.

chosen and of no other size than the one selected, and

the action was maintainable. (French v. Hays, 43 N. CARRIER.

H. 30; Washb. on Easem. 225, 240; Wynkoop v. Burger, When contract as carrier terminates. – Where mer

12 Johns. 222; Jennison v. Walker, 11 Gray, 423; Banchandise was shipped by canal-boat from Geneva to non v. Angier, 2 Allen, 128.) Judgment below afNew York, under a contract whereby it was to remain firmed. Onthank v. L. S. & M. S. R. R. Co. Opinion stored in the boat ninety days after its arrival, at a

lays arter its arrival, at a hy Earl, J. specified compensation, held, that the liability of the [Decided Nov. 9, 1877. Reported below, 8 Hun, 131.) boat owner as carrier ceased upon the arrival of the

EVIDENCE. boat with its cargo at New York, in good order, ready for delivery, and notice to the consignees and their

Writing not contemporaneous : when inadmissible.election not to remove such cargo but to store it in

A writing not made near the same time and entirely the boat. Judgment below affirmed. Putnam v. Fur

disconnected with the matters under investigation man. Opinion per curiam.

and consisting of words, letters and figures, whose [Decided Oct. 9, 1877.)

meaning required explanation, and about whose mean

ing there was a conflict in the testimony, held, not COSTS.

competent to explain the meaning of words and figWhen not allowable out of estate of decedent in litiga

ures contained in another writing which was the subtion over will. — Appellants made claim that a testator ject of controversy. Judgment below affirmed. Mumhad died intestate as to one-fourth of his estate, and by v. Jackson. Opinion by Earl, J. on that account the executor brought an action for a [Decided Nov. 13, 1877.). judicial construction of a clause of the will. The

JUDGMENT. Supreme Court, at Special Term, held adversely to the appellants and gave judgment in favor of the will and

1. Judgment by confession: what a sufficient state

ment for.-In a confession of judgment by one Giba valid disposal of the whole estate by it. The appellants then took an appeal to this court and the judge

bons to one Harrison it is alleged that the judgment is

confessed for a debt justly due to Harrison, and then ment below was affirmed, but without costs. Upon a

proceeds as follows: “The following is a statement of motion to amend remittitur by awarding costs in this court to all the litigants, payable out of the estate of

facts upon which said confession of judgment is

founded: That said Gibbons was for a long time abthe testator, held, that such costs should not be allowed.

sent from the State of New York, and engaged in the Courts have no right to be liberal to suitors at the ex

occupation of mining in the State of California; that, pense of the estates of decedents or of trust funds over

during his said absence, and prior to his leaving said which they have control. McLean v. Freeman. Opin

Brockport for said California, he has and had obtained ion per curiam.

groceries, provisions, crockery, money, flour, eto., to [Decided Oct. 9, 1877.)

the amount of $1,109.41, including interest, of John EASEMENT.

Owens, who has duly assigned the same to said HarriGrant of right to lay water-pipe: general terms of son; that since his return to said Brockport he bas grant made definite by subsequent acts of grantee.- In incurred a debt to said Harrison amounting to the sum 1863 one Brown, whose lands adjoined those of plain of $92.28, being for groceries and provisions furuished tiff, gave to defendant's grantor, a railway company, by said Harrison for the use of his family; that there by deed, the right to enter upon bis lands and con is now justly due and owing said Harrison, over and struct and maintain a reservoir for collecting the above all effects and payments, the sum of $1,207.69." waters of a natural spring, and to lay and maintain a | Held, following Freligh v. Brink, 22 N. Y. 418, a suffipipe across his lands to its railway tank. At the same cient statement under the provision of section 883 of time plaintiff, knowing the contents of Brown's deed, the old Code. Judgment below reversed. Harrison executed to the same grantee a deed, giving it the right y. Gibbons. Opinion by Andrews, J. to enter upon his land and lay and maintain a pipe to 2. Setting aside sale under execution: when not conduct the water to its tank in connection with the proper.- The Special Term held the judgment valid pipe and reservoir on Brown's land. The deeds were as to the item of $98.28, but set it aside as to the other general and contained no limitation as to the size of item of $1,109.41 as against one Kattener, a subsequent the pipe or where it should be laid. At the time judgment creditor. A sale under execution upon the water flowed from the spring by a natural channel judgment had been had of the personal property of across plaintiff's land and was used by himn in water Gibbons, realizing $130, and of his real estate, before ing stock, etc. The company immediately constructed | Kattener obtained his judgment. The court below

held that the sale of the personal property extin given on appeal. Held, that the giving of such notice
guished the valid portion of the judgment, and ordered was a necessary condition precedent to the commence-
the sale of the real estate to be set aside. Held, error. ment of an action, and a complaint not alleging it did
The judgment between the parties was valid, even not state facts sufficient to constitute a cause of action.
though the statement was defective (Nuesbaum v. Judgment below affirmed. Porter v. Newton. Opinion
Keim, 24 N. Y. 325), and there was no equity in a sub | by Earl, J.
sequent judgment creditor, entitling him to have the [Decided Oct. 2, 1877.)
money realized from the sale of the personal property
applied to extinguish an item in the judgment where UNITED STATES SUPREME COURT ABSTRACT.
the statement was not defective. Ib.
[Decided Oct. 9, 1877.]

OCTOBER TERM, 1877.
MANDAMUS.

AMENDMENT. 1. When peremptory, not allowed. - Where a claim! Of judgment after term.- An action was tried by the had been allowed by a board of supervisors, which the court and judgment ordered for the plaintiffs at the county treasurer refused to pay, and in an application April Term, without any formal finding of facts. At for a peremptory mandamus it appeared, that, in a subsequent term, upon due notice, an order was reference to a portion of the claim, a fraud had been

made that "a finding of facts in the cause, with the perpetrated upon the board of supervisors, and another conclusions of the court thereupon, conformably to part of the claim was without sanction of law, held, the opinion of the court theretofore filed," be prepared that in such a case a peremptory mandamus could not

and signed by the judges; that "said special finding of be allowed. Such a writ is allowed, only when there

facts" be entered of record nunc pro tunc as of the April is a clear and unquestioned legal right. Order below Term. Held, that the court had power to make such an affirmed. (People ex rel. Mott v. Supervisors of Greene,

order, and that such order made the special finding a 64 N. Y. 600.) People ex rel. Slavin v. Wendell. Opin

part of the record. “Generally it may be admitted, that ion per curiam.

judgments cannot be amended after the term at which 2. Discretion of court as to allowing peremptory or

they are rendered, except as to defects or matters of alternative mandamus. - Even if a case was made out form, but every court has power to amend its records where a peremptory mandamus might be issued, the

so as to make them couform to and exhibit the truth. court was vested with a discretionary power under

Ordinarily there must be something to amend by, but the facts presented, of granting or refusing such

that may be the judge's minutes or notes not themwrit, and could issue an alternative writ instead. selves record, or any thing that satisfactorily shows (People ex rel. Hackley v.Crot. Aq.Bd., 49 Barb.259.) Ib. what the truth was.” In this case the opinion filed [Decided Nov. 13, 1877.)

with the judgment was sufficient to amend by. Ætna

Ins. Co. v. Boon. Opinion by Strong, J.
NEGLIGENCE.

BANKRUPTCY.
Duty of telegraph company as to construction of line

1. Preference: what constitutes. — On the morning of in streets of a city. - In an action against a telegraph

August 26, H. sold the M. bank, in Cincinnati, his company, for personal injury, caused by the breaking

check on New York for $10,000. In the afternoon, and fall of one of its posts in the streets of a city, the defense was, that the accident was caused by a storm

becoming satisfied that he must fail, he wrote to the of unprecedented violence. Held, that the company,

president of the bank this wote: “Dear sir, a disaphaving the right to place its poles and wires in the

pointment gives us reason to fear that our check of

this date will not be paid. I leave with you the instreets, could be made responsible for the accident, only by proof of negligence on its part, in constructing

closed as security." He inclosed certain securities in or maintaining its line. A telegraph company is not ab

the envelope, and the note and securities were delirsolutely bound to make its line safe to the public, or to

ered to the bank the next day, and accepted by it. have its posts in the street so strong and secure that

The bankknew that shortly previous H. was pressed for they cannot be blown down or broken by any storm.

money. Held, a preference within the 35th section of It is bound to use reasonable care in the construction

the national bankruptoy law, and that there was in aud maintenance of its line. The poles must be strong

the note sufficient to give the bank reasonable cause enough to withstand such violent storms as may be

to believe that H. was insolvent. Merchants' Nat. reasonably expected, but they are not required to be

Bank v. Cook. Opinion by Hunt, J. 80 strong that no storm can break them, or to with

2. What constitutes reasonable cause to believe debtor stand such storms as reasonable foresight and prudence

insolvent. - When the condition of a debtor's affairs could uot anticipate. Judgment below reversed.

are known to be such that prudent business men would Ward v. Atlantic & Pacific Telegraph Co. Opinion by

conclude that he could not meet his obligations as they Earl, J.

matured in the ordinary course of business, there is [Decided Oct. 10, 1877.]

reasonable cause to believe that he is insolvent.

Knowledge is not necessary nor even a belief but simply UNDERTAKING.

reasonable cause to believe. (Toof v. Martin, 13 Wall. Action on undertaking given on appeal: condition 50; Buchanan v. Smith, 16 id. 277; Wager v. Hall, id. precedent to maintenance of.-In an action upon an un 584.) Ib. dertaking given to stay execution upon appeal to the

, CONSTITUTIONAL LAW. General Term, the complaint did not allege specifi 1. What is not a tonnage tax.— The city of Keokuk, cally or generally, a compliance with the requirement under the authority of a statute of Iowa, authorizing of the last clause of section 348 of the old Code, re- it to construct wharves and fix the rates of landing quiring the service of notice of the entry of judgment thereat, constructed at a great expense along the of affirmance upon the adverse party, ten days before banks of a navigable river an improved wharf, and by the commencement of action upon the undertaking I ordinance provided, that any steamboat making fast

to the wharf, or landing or receiving freight or passen- “It is pot sufficient to show that a question might have gers thereat, should pay a certain sum, which was pro- arisen or been applicable to the case, unless it is furportioned to the tonnage of the vessel. Held, not a ther shown, on the record, that it did arise and was tonnage tax within the provision of the Federal con applied by the State court to the case." To the same stitution forbidding the imposition of such taxes by effect is Edwards v. Elliott, 21 Wall. 558. The motion State authority, but a charge for conveniences pro- to dismiss is granted. Hagar v. State. Opinion by vided, and that the ordinance was valid. Keokuk Waite, C. J. North L. Packet Co. v. City of Keokuk. Opinion by

MARITIME CONTRACT. Strong, J.

1. Contract for the use of a wharf is. — A contract 2. Object of forbidding tonnage tax : what prohibition

for the use of a wharf, by the master or owner'of a ship applies to. — The prohibition to a State against the

or vessel, is a maritime contract, and as such is' coguizimposition of a duty of tonnage was designed to guard

able in admiralty, and being one made exclusively for against local hindrances to trade and carriage by ves

| the benefit of a ship or vessel, a maritime lien arises in sels, not to relieve them from liability to claims for

favor of the proprietor of the wharf against the vessel assistance rendered and facilities furnished for trade

for payment of reasonable and customary charges for and commerce. Ib.

such one, and the same may be enforced by a proceeding 3. Cannon v. New Orleans, 20 Wall. 577; N. W.

in rem, or by suit in personam. (The Maggie Hammond, Packet Co. v. St. Paul, 3 Dillon, 454; Steamship v. Port

9 Wall. 452; De Lovio v. Boit, 2 Gall. 472; Ship New Wardens, 6 Wall. 31; Peete v. Morgan, 19 id. 581, dis

Jersey, 1 Pet. Adm. 228; Johnson v. McDonough, Giltinguished. Ib.

pen, 103; The Phoebe, Ware, 341; Bark Alaska, 3 Ben. 4. Such ordinance not a regulation of commerce. —

392; Hobart v. Drogan, 10 Pet. 120; The Mercer, 1 Held, also, that the tax in question was not a regula

Sprague, 284.) Ex parte Easton and McMahon. Opintion of commerce between the States, within the pro

ion by Clifford, J. vision of the Federal constitution. Ib.

2. A barge having no motive power of its own, held FIRE INSURANCE.

liable for wharfage.- A barge, although not propelled Exceptions from risk: proximate cause : military or by wind or steam, or any motive power of its own, usurped power." — A policy of fire insurance exempted held liable for wharfage dueg. Ib. the company from liability for a loss happening" by

NEGLIGENCE. means of any invasion, insurrection, riot or civil com

1. Duties of railroad and traveler at level crossing.motion, or of any military or usurped power.” The property insured was in Glasgow, a place where the

Plaintiff was struck and injured by defendant's train United States had deposited military stores. Glasgow

at a point where defendant's road crossed a highway.

In an action for the damages, the judge charged the was attacked by the Confederate forces, and the United States commander being unable to defend it, and in

jury in substance. [We quote from the opinion of the

Supreme Court.) “That the obligations, rights and order to prevent the military stores from falling into

duties of railroads and travelers upon highways crossthe hands of the enemy, ordered their destruction,

ing them, are mutual and reciprocal, and no greater whereupon an officer set fire to the building containing

degree of care is required of one than of the other," them, which spread through three or four buildings to

but, “that the plaintiff could not have a verdict plaintiff's store and destroyed the property insured by this policy. Held, that the Confederate attack was the

unless the person in charge of the train were guilty of cause of the destruction of the plaintiff's property, and

negligence or want of due care, and, unless the plain

tiff himself were free from any negligence or carethat it was excepted from the risk undertaken by the

lessness, which contributed to the injury.Held, that insurers. (Brady v. North-western Ins. Co., 11 Mich. 425; St. Johns v. Am. Mut. Ins. Co., 11 N. Y. 516; Lynd

the charge was right; "the obligations, rights and v. Tynsboro, 11 Cush. 563; Ins. Co. v. Tweed, 7 Wall, 44;

duties of railroads and travelers upon intersecting

highways are mutual and reciprocal, and no greater Butler v. Wildman; Barton v. Home Ins. Co., 42 Mo. 156; Marcy v. Merchants' Mut. Ins. Co., 19 La. Ann.

degree of care is required of one than of the other.” 388; Milwaukee, etc., R. R. Co. v. Kellogg, 94 U. S.

But the train, from its character and momentum, has 475.) Ætna Ins. Co. v. Boon. Opinion by Strong, J.

precedence, and the traveler must stop and wait for

the train to pass. But the train is bound to give seaJudgment of Circuit Court reversed.

sonable notice of its approach. “The degree of diliJURISDICTION.

gence to be exercised on either side is such as a prudent When appeal lies from State court: Federal question.

man would exercise under the circumstances of the - Error to the Supreme Court of California. Held, case, in endeavoring fairly to perform." Continental “It nowhere appears from this record that any Fed Improvement Co. v. Stead. Opinion by Bradley, J. eral question was actually decided by the court below. 2. Judge's charge.- A judge is not bound to charge None is specifically made by the pleadings, and we can upon assumed facts in the ipsissima verba of counsel, not find that any was raised under the general allega nor to give categorical answers to a juridical catechism tions in the answer or demurrer. The whole defense based on such assumption. It belongs to the judicial seems to have been predicated upon a supposed repug office to exercise discretion as to the style and form in nancy between the law authorizing the assessment and which to expound the law and comment upon the the State constitution, and upon certain alleged irregu | facts. If a judge states the law incorrectly, or refuses larities in the proceedings under the law. It is not to state it at all, on a point material to the issue, the enough that a Federal question might have been raised. party aggrieved will be entitled to a new trial. But We have no jurisdiction unless it actually was raised when he explains the whole law applicable to the case and either decided or necessarily involved in the judg- | in hand, he cannot be called upon to express it in the ment pronounced. Mr. Justice Story, in Crowell v. categorical form, based upon assumed facts, which Randall, 10 Peters, 398, decided in 1836, after reviewing counsel choose to present to him. (See Mills v. Smith, all the cases down to that time, thus states the rule : 18 Wall. 27; Nudd v. Burrows, 91 U. 8. 426.) Ib.

REMOVAL OF CAUSES FROM STATE TO FED.

suit is begun, for the language is, "if a suit be com

menced by a citizen of the State in which the suit is ERAL COURT.

brought against a citizen of another State, the defend

ant may, when he enters his appearance, petition for its SUPREME COURT OF THE UNITED STATES. - OCTOBER TERM, 1877.

removal.” The phraseology employed in the acts of

1866 (14 Stat. 307), 1867 (Id. 558), and 1875 (18 Stat. 470), PHENIX INSURANCE COMPANY V. PechNER.

and in the Revised Statutes ($ 639), is somewhat differ

ent, and we are not now called upon to give a construcA petition for the removal of a cause from a State to the Federal court under the act of 1789 must expressly

tion to the language there used. As to the act of 1789, state that the parties were citizens of the respective we entertain no doubt in this particular. States at the time the suit was commenced.

This right of removal is statutory. Before a party IN error to the Court of Appeals of New York. The can avail himself of it he must show upon the record 1 decision of the Court of Appeals is (reported 65 N. that his is a case which comes within the provisions of Y. 195.

the statute. His petition for removal when filed beMr. Chief Justice WAITE delivered the opinion of comes a part of the record in the cause. It should the court.

state facts which, taken in connection with such as On the 1st of June, 1867, Pechner, the defendant in already appear, entitle him to the transfer. If he fails error, sued the Phønix Insurance Company, plaintiff in this, he has not, in law, shown to the court that it in error, a Connecticut corporation, in the Supreme canuot "proceed further with the cause." Having Court of Chemung county, in the State of New York, ouce acquired jurisdiction, the court may proceed upon a policy of insurance. On the 8th of July, in the until it is judicially informed that its power orer the same year, and at the time of entering its appearance, cause has been suspended. the company presented to the court a petition, accom- | It remains only to apply this rule to the facts as they panied by the necessary security, for the removal of appear in this record. The suit was commenced June the cause to the Circuit Court of the United States. | 1, 1867. At that time there was nothing in the pleadThe petition, when taken in connection with the plead ings or process to indicate the citizenship of the plainings, set forth sufficiently the citizenship of the de- | tiff. The defendant, in its petition for removal, bearfendant in the State of Connecticut, but as to the ing date June 11, simply stated that the plaintiff is -citizenship of the plaintiff, the statement was that “as that is to say, was at that date-a citizen of New York. your petitioner is informed and believes, Isido: This certainly is not stating affirmatively that such Pechner, the plaintiff in said action, is a citizen of the was his citizenship when the suit was commenced. State of New York." The petition bears date June 11, The court had the right to take the case as made by 1867, and was sworn to June 12. Upon its presentation the party himself and not to inquire further. If that the court approved the security, but denied the appli. was not sufficient to oust the jurisdiction, there was cation for removal.

no reason why the court might not proceed with the On the 5th of June, 1869, the plaintiff filed an cause. We think, therefore, that the Court of Appeals amended complaint, to which the defendant answered did not err in its decision, aud the judgment is conseJune 21, 1869. On the 2d of February, 1872, the cause | quently affirmed. coming on for trial, the defendant again presented its original petition for removal, which remained upon

SUPREME COURT OF THE UNITED STATES - OCTOthe files, and requested the court to proceed no further

BER TERM, 1877. with the trial, but this request was denied, for the reason that the petition did not state facts sufficient to

AMORY V. AMORY. remove the cause. A jury was thereupon called, which

A State court is not bound to surrender its jurisdiction returned a verdict in favor of the plaintiff, and judg

upon a petition for removal until at least a petition is ment was in due form entered thereon against the

fled which upon its face shows the right of the peti

tioner to transfer it. defendant. The case was then taken to the Court of Under the act of 1867 a petition for removal must state the Appeals, where the judgment of the Supreme Court personal citizenship of the parties, and not their offiwas affirmed, the Court of Appeals deciding that the

cial citizenship. petition for removal was not sufficient in law to effect | In error to the Superior Court of the city of a transfer of the cause, for the reason that it did not 1 New York. state affirmatively that Pechner was a citizen of the Mr. Chief Justice WAITE delivered the opinion of tho State of New York when the suit was commenced. Court.

To reverse this judgment the present writ of error These cases are substantially disposed of by the has been brought, and the only error assigned is pre decision in Phænix Ins. Co. v. Pechner, just andicated upon this decision.

nounced. They each present the question of the suffiThe application for removal in this case was made ciency of a petition for removal under the act of 1867. under section 12 of the Judiciary Act of 1789. — (1 Stat. 14 Stat. 558. The suits were in New York by the de79.) That section, so far as it is important for the de fendants in error as executors, against the plaintiff in termination of this case, reads as follows: “If a suit | error, a citizen of New Jersey. The petitions for rebe commenced in any State court * * by a citizen | moval set forth sufficiently the citizenship of the plainof the State in which the suit is brought against a | tiff in error, but as to the defendants in error the allecitizen of another State, * * and the defendant gations are “ that said plaintiffs, as such executors, are shall, at the time of entering his appearance in such citizens of the State of New York." Clearly this is State court, file a petition for the removal of the cause not sufficient. Where the jurisdiction of the courts for trial into the next Circuit Court, * * it shall of the United States depends upon the citizenship of then be the duty of the State court to * * proceed the parties, it has reference to the parties as persons. no further in the cause. * * *” Clearly this has | A petition for removal must, therefore, state the perreference to the citizenship of the parties when the 'sonal citizenship of the parties and not their official

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