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the subject is published in the American Law Register for April 1869. Upon this point he says: “If the cause bad been finally determined by either judgment of the Circuit Court, or by order of the Supreme Court; then the application for removal would not have been filed before 'the final hearing or trial.' But the last order of the Supreme Court reversing the judgment of the Circuit Court, and remanding the cause to that court for further proceedings according to law, opened the whole case to litigation, the same as if no judgment had ever been rendered. The Supreme Court in effect ordered a venire facias de novo, which required the Circuit Court to hear the cause as if no hearing or trial had taken place."
If this is so, then this Court has been laboring under a great delusion. If, after a case has been three times in this court, twice on appeal from final judgments in the court below, if after the essential vital legal questions upon which its decision depends have been solemnly adjudicated by this court, and the cause remanded to the Circuit, it starts there anew, with nothing settled, “ the whole case opened to litigation, as if no judgment had ever been rendered," then are not only our labors fruitless indeed, but those of the unfortunate litigants in the state courts are vainer than the labors of Sisyphus.
We have not so understood the law. We have uniformly applied to our decisions, so far as relates to matters within our jurisdiction, the same rule which the Supreme Court of the United States applies to its decisions; and have held that they become the law of the case, binding on the parties and the subordinate courts, and that the questions decided are not open to further litigation. We cannot have erred in this, unless the decisions of this court constitute an exception to the rule by which those of all other courts are governed.
I cannot but regret that this difference of opinion has arisen between this court and the learned judge of the District Court. It may be the cause of much embarrassment and expense to the parties. But inasmuch as the difference does exist, I know of no way to avoid its consequences, whatever they may be. There seems but one course open to this court, consistent with its duty to itself and to the state, when its appellate power is invoked in the regular course of judicial proceedings, and that is, to exercise the jurisdiction which it believes itself to possess, according to its best judgment whether that be well or ill founded.
As the conclusion already arrived at makes it unnecessary, I shall not enter upon the question whether it is competent for Congress to authorize a non-resident plaintiff who has voluntarily brought his suit in the state court to obtain a removal. I will only say that there is a marked difference between such a law and that which has heretofore been in force.
The appellate jurisdiction of the United States Supreme Court over the state courts has been sustained by the decisions of that court, and generally acquiesced in. And the validity of the twelfth section of the Judiciary Act, authorizing a non-resident defendant sued in a state court to have the case removed for trial to the Federal courts, has also been sustained as an alleged branch of the appellate power. But the argument by which a proceeding apparently so incongruous, as one by which the courts of original jurisdiction in one judicial system wrench a case bodily from the courts of original jurisdiction of another distinct
judicial system created and organized under another constitution of government, is attempted to be sustained, is not that there is any express provision in the Constitution of the United States to that effect, but that the proceeding is necessary in order to give effect to the general grants of judicial power which it contains. It is said that as questions may arise concerning the Constitution and laws of the United States, in suits pending in the state courts, and as citizens of other states may
be sued as defendants in those courts, and as the judicial power of the United States extends to such controversies, unless there is a right of appeal and removal there is no way in which that judicial power can reach such cases. The argument rests therefore almost entirely on the assumed necessity of such right, in order to give effect to the grants of judicial power. Powerful arguments have certainly been made against the existence of the right in any case. These have been drawn from the acknowledged independence and sovereignty of the state and Federal governments, each within its own sphere, which doctrine has often been asserted by the Supreme Court of the United States. They have expressly told us that the separation of the two governments is so complete that Congress can vest no part of the judicial power of the United States in any state court, and can impose no duty whatever on any state officer. In view of these conclusions it is certainly difficult to show, by any satisfactory reasoning, by what authority Congress can authorize a Federal court to acquire original jurisdiction through the process and proceedings of a state court. These considerations, joined with the fact that by the ordinary rules of interpretation the general grants of judicial power, original and appellate, in the Constitution of the United States, would, in the absence of any professed intention on its face to regulate any other judicial system, be held to relate solely to the judicial system established by itself, have led many able minds to deny the existence of any power whatever to transfer a case by appeal or otherwise from a state to a Federal court. But against these arguments the power has been upheld, as already remarked, upon the ground of its absolute necessity, in order to give effect to the grants of judicial power. But if the power rests upon that ground, the necessity which gives it birth would seem to constitute its limit.
And in respect to a non-resident plaintiff, who voluntarily brings his suit in a state court, that necessity fails entirely. A right of removal is not necessary there, to enable the judicial power of the United States to reach the case, because he might have brought the suit in the Federal court in the first instance.
The constitutional grant had full effect from the outset, and the party in whose behalf the right to have the case tried in the Federal court is claimed, had it fully provided for him. Whether after he voluntarily waived it and sued in the state court, there is any power to provide for a removal of the suit in his favor, is certainly a different question from any that has been yet decided by the Supreme Court of the United States. There is at least some ground for denying the power in such a case, without impeaching the right of appeal and removal so far as they bave already been sustained. Whether upon full examination this ground would be found sufficient, I shall not attempt further to inquire. But I will say that if this act is to have the effect claimed for it, if after
a non-resident has pursued a citizen of this state through years of expensive litigation in the state courts—if after all the important and vital questions in the case have passed into judgment, as between the parties, and he sees his antagonist about to pluck the fruits of his toil and sacrifice, he can by an affidavit under this statute turn those fruits to ashes, and transfer his case to another court of original jurisdiction to start anew, certainly such results will challenge for the act the closest scrutiny of the grounds upon which the power to pass it is asserted.
The order appealed from must be reversed, and the cause
remanded for further proceedings.
ABSTRACTS OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF KANSAS."
SUPREME COURT OF NEW HAMPSHIRE.?
SUPREME COURT OF NEW YORK.:
ARBITRATION. Submission of a pending Action.-A mere submission to arbitration will not be a discontinuance of a pending suit where, by express agreement or necessary implication, the cause is to be kept on foot until the arbitration is perfected by an award : Lary v. Goodeno, 48 N. H.
Such an agreement will be implied from a stipulation, that judgment shall be entered on the report or award : Id.
Where under a misapprehension as to the effect of a submission to arbitration the action is entered “neither party,” it is a proper exercise of discretion to strike off such entry and let the cause stand for trial: Id.
Whether a mere submission to arbitration will operate as a discontinuance of a pending suit, even if there is no agreement to enter judgment on the award, quære : Id.
ASSUMPSIT. See Contract. Money received by Public Officer, and not appropriated to the purpose of his Office.--If the prudential committee of a school district receive the money assigned to the district for the support of schools, and neglect to appropriate it to that use, the district, after the committee's term of office has expired, may recover the money
in an action for money had and received: School District No. 7 in Auburn v. Sherburne, 48 N. H.
1 From Hon. C. K. Gilchrist; to appear in 5 Kan. Rep. 2 From the Judges; to appear in 48 N. H. Rep.
From Hon. 0. L. Barbour, Reporter; to appear in vol. 53 of his Reports.
BOUNTY. Commissioned Officer.-A man who entered the army as a commissioned officer of volunteers, is not entitled to the bounty voted by a town under the statute, which authorized towns to raise and appropriate money “ to encourage enlistments in the army:" Hilliard v. Stewartstown, 48 N. H.
BROKER. Power to bind Principal.-An authority to sell, given to one whose occupation is that of a real estate broker, authorizes the broker to sign the contract and bind his principal: Pringle v. Spaulding, 53 Barb.
COMMON CARRIER. See Railroad.
CONSTITUTIONAL LAW. Trial by Jury-Opportunity of Defence.—The Act of July 3d 1863, entitled "An act in relation to damages occasioned by dogs," so far as it undertakes to charge the owner with the amount of damage done by his dog as fixed by the selectmen of the town without an opportunity to be heard, is unconstitutional; because it is contrary to natural justice and not within the scope of legislative authority conferred by the constitution on the General Court; and also because it is in violation of the provision in the Bill of Rights, which secures the right of trial by jury in all controversies concerning property, except in cases where it had not theretofore been used and practised: East Kingston v. Tovle, 48 N. H.
An act may be in part beyond legislative authority and within it for the residue, and, if it is capable of being administered in the parts which are within the power of the legislature to enact, it will so far be a valid law: Id.
The legislature have power to make towns liable for damage done within their limits by dogs, and to give towns a right of action to recover the actual damage from the owners of the dogs: Id.
A town may maintain an action against the owner of a dog under the Act of July 3d 1863, and recover the amount of actual damage done as found by the jury on trial, not exceeding the amount of the order drawn for the damages by the selectmen : Id.
On the question whether the defendant's dog did the damage, the character of the dog is not competent evidence, nor the fact that he had killed other sheep: Id.
CONTRACT. See Frauds, Statute of. Rescission.—To entitle a party to recover back money advanced to a corporation for shares of its capital stock, upon the ground of a failure to issue it according to agreement, the party must rescind the contract and demand the money before suit: Swazey v. Choate Manufacturing Co., 48 N. H..
Reward offered for Arrest of Criminals.—Under a statute authorizing the mayor and city council of any city, or the selectmen of any town, to offer and pay from the treasury of such city or town a suitable reward,
not exceeding $300, for apprehending and securing a person charged with a capital or other high crime, any city or town may be bound by an offer of a reward in such cases; and any person who performs the service relying upon such offer, may in an action of assumpsit recover the amount offered of such city or town : Janvrin v. Town of Exete 48 N. H.
Ten Hours' Work as a Day's Labor.—Under the statute, which provides that in all contracts for, or relating to, labor, ten hours of actual labor shall be taken to be a day's work unless otherwise agreed by the parties, if work is done through the season at a certain agreed price per day, and the work done from time to time in a day is done and accepted without objection as a day's work, an agreement may be implied that the work done in a day, whether more or less on an average than ten hours
, shall be reckoned and paid for as a day's work: Brooks v. Cotton, 48 N. H.
CRIMINAL LAW. False Pretences— Evidence.—Where the false pretences consist in words used by the defendant, it is sufficient to set them out in the indictment as they were uttered, without undertaking to explain their meaning: State v. Call, 48 N. I.
Upon an indictment for obtaining goods by falsely pretending that the buyer owed but little, and had ample means to pay all his debts, and that his note for $250 was good, it is competent for the state to prove that within three days after he mortgaged the greater part of his personal property to another, as bearing upon his intent in making such representations : Id.
DAMAGES. For Breach of a Contract to sell Land.-In an action to recover damages for the breach of a contract to sell real estate, the proper rule of damages is the amount paid by the purchaser on executing the contract, together with the difference between the contract-price and the actual value of the premises, at the time the contract was to have been performed : Pringle v. Spaulding, 53 Barb.
DEBTOR AND CREDITOR. See Husband and Wife.
ESTOPPEL. Misrepresentation as to Ownership of Goods. If the owner of goods voluntarily represent that the goods belong to another, and the party to whom the representation is made, relying, and having reason to rely, on the representation as true, attach the goods for a debt due from the party to whom it was represented that the goods belonged, in trover for attaching the goods, the owner will not be permitted to show that his representation was false, though at the time when he made it he had no notice of the debt on which the goods were attached : Horn v. Cole, 48 N. H.
Encouraging other Persons to Purchase.- Where the plaintiff having a claim of dower in premises advertised to be sold by a receiver, attended the sale, and requested the defendant to purchase the property, stating