be at least $3,000 beyond what was needed to pay the bottomry bond, and other claims of his firm. There is, however, no sufficient proof of such representations. They are denied by Mr. Higgins, and the only person who affirms they were made is Mr. Nickerson, the purchaser himself. And even the testimony of Nickerson appears to assert that Higgins expressed an opinion respecting what would be the result, rather than a positive assertion of the fact. This is quite an insufficient basis for an estoppel, and manifestly the opinion was not relied upon. Nickerson had examined for himself some of the accounts at least.

the defendant the whole of the matter then in dispute upon the record, and allowed the plain tiff to reduce the matter therein in dispute to the sum of $499. It thus proceeded further in the cause, which the Act of Congress forbids. All its subsequent proceedings, including the judgment, were, therefore, erroneous."

But as there are other and important questions presented (and which we hope will be passed upon and determined) we proceed to consider them.

The right to sue and be used in the Federal Courts, depends upon the Constitution and laws of the United States. That right cannot be enlarged, abridged or taken away by any legislation of the States. Any attempt by the States to take away, impair or destroy that right is in direct violation of article VI., section 2, of the Constitution of the United States, which reads as follows: "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authoraffirmed.aw of the land, and the judges in every State ity of the United States, shall be the supreme Pennsyl-hall be bound thereby, anything in the Consti

This disposes of the case. Admitting the libelants have no lien in admiralty for their fees and commissions, or even for their disbursements on account of the ship, they had, as we have said, a right to apply the funds they had in hand, first, to the satisfaction of the debt due them for such fees, commissions and disbursements, applying only the remainder to the bond. For the balance unpaid they have the security of the bottomry lien.

The decree of the Circuit Court is with interest at the rate allowed in sania, and with costs.

THE HOME INSURANCE COMPANY
NEW YORK, Plff. in Err.,

v.

tution or laws of any State to the contrary notwithstanding." article II., sections 1 and 2, OF fix and determine the judicial power of the United States. That power is vested exclusiveIt exly in the courts of the United States. tends to cases between citizens of different States. It has been often and repeatedly decided by this court that state legislation cannot enlarge or restrict the jurisdiction of the Fed

JOHN F. MORSE et al. (See S. C., 20 Wall., 445-459.) Removal of cases into Federal Courts-state Act preventing such removal, void-agree-eral Courts. ment not to remove, void.

1. The Constitution of the United States secures to citizens of another State than that in which suit is brought, an absolute right to remove their cases into the Federal Court, upon compliance with the terms of the Act of 1789.

2. The Statute of Wisconsin, which enacts that a corporation organized in another State shall not transact business within its limits, unless it stipulates in advance that it will not remove into the Federal Courts any suit that may be commenced against it by a citizen of Wisconsin, is an obstruction to this right, is repugnant to the Constitution of the United States and the laws in pursuance thereof, and is illegal and void.

3. The agreement of an insurance company made in conformity to this statute, derives no support from the unconstitutional statute, and is void, as it would be had no such statute been passed.

[No. 35].

Argued Apr. 17, 1874. Ordered for re-argument Apr. 20, 1874. Re-argued Oct. 22, 1874. Decided Nov. 9, 1874.

Railway Co. v. Whitton, 13 Wall., 286, 20 L. ed. 577; Payne v. Hook, 7 Wall., 430, 19 L. ed. 261; Suydam v. Broadnax, 14 Pet., 67; Union Bank v. Jolley's Admr., 18 How., 503, 15 L. ed. 472; Hyde v. Stone, 20 Hoy. 175, 15 L. ed. 875; The Moses Taylor, 4 Wall., 411, 18 L. ed. 397; The St. Lawrence, 1 Black, 522, 17 L. ed. 180; Allen v. Allen, 3 Wall., Jr., 248.

A corporation is so far a citizen that it can sue and be sued in the Federal Courts.

Paul v. Virginia, 8 Wall., 168, 19 L. ed. 357; Knorr v. Home Ins. Co. 25 Wis., 153; Express Company v. Kountze, 8 Wall., 342, 19 L. ed, 457; Hatch v. Chicago, R. I. & P. R. Co., 6 Blatchf., 105; La Fayette Ins. Co. v. French, 18 How., 404, 15 L. ed. 451; Louisville R. Co. v. Letson, 2 How., 497; Marshall v. Balt, & 0. R. Co. 16 How., 314; Wheeler v. Ohio & Miss. R. Co., 1 Black, 286, 17 L. ed. 130; Cowles v. Mercer Co., 7 Wall., 118, 19 L. ed. 86; R.

N ERROR to the Supreme Court of the Co. v. Whitton, 13 Wall., 286, 20 L. ed., 577; INS

State of Wisconsin.

The case is fully stated by the court. Messrs. H. M. Finch and W. M. Evarts, for plaintiff in error:

All of the proceedings in the state court, subsequent to the filing of the petition and giving the bond, should have been in the Fed

Morton v. Mutual Ins. Co., 105 Mass., 141.

Wisconsin exact such a waiver or surrender,
The precise question is; can the State of
as one of the conditions of admitting a foreign
corporation within its border? If so, then the
State by its legislation can set aside and annul
a positive law of the United States, and can
defeat the jurisdiction of the Federal Courts
The provisions of
in a large class of cases.
the Constitution under discussion, say that the
laws of the United States, made in pursuance
of the Constitution of the United States, shall
be the the supreme law of the land and that
the Judges in every State shall be bound there-
by.

In Wayman v. Southard, 10 Wheat., 1, Chief
365

Justice Marshall says: "It is a general rule that what cannot be done directly, from defect of power, cannot be done indirectly.

Has the State, then, any power to say that foreign corporations shall stipulate away the provisions of an Act of Congress, giving a right of removal into the Federal Courts?

The broad proposition must be asserted and maintained, that the State has the power to impose upon foreign corporations just such conditions as it pleases, or there must be a well defined limit to the power. We think there is a limit. The Constitution and laws of the United States fix the limit. They are the supreme law.

La Fayette Ins. Co. v. French, 18 How., 407, 15 L. ed. 452; Ducat v. City of Chicago, 10 Wall., 410, 19 L. ed. 972.

In the language of Judge Grier in Marshall v. Balt. & O. R. Co., 16 How., 329, "The right of choosing an impartial tribunal is a privilege of no small practical importance."

Allegre v. Maryland Ins. Co., 6 Harr. & J., 408; Randel v. C. & D. Can. Co., 1 Harr. (Del.), 234; Gray v. Wilson, 4 Watts, 39; Ross v. Nesbit, 2 Gilm., 252; Haggart v. Morgan, 4 Sandf., 198; Scott v. Avery, 5 H. of L. Cas., 811; Scott v. Corporation, etc., 60 Eng. Ch., 334; Canner v. Drake, 1 Ohio St., 166.

There are cases where parties have sought, by so-called contracts, to set aside exemptions allowed by law. Of such a character are the cases of Maxwell v. Reed, 7 Wis., 493; and Crawford v. Lockwood, 9 How Pr., 547, cited with approval in Shapley v. Abbott, 42 N. Y., 443. The cases of Davis v. Packard, 6 Pet., 41; S. C., 7 Pet., 284, and Dudley v. Mayhew, 3 N. Y., 1, will illustrate this point.

The latter was a case where the parties have expressly agreed that they would not raise the question of jurisdiction. The case was dismissed, notwithstanding the agreement.

This so-called agreement, if the defendants in error had been parties to it, is not a waiver In Nute v. Hamilton Ins. Co., 72 Mass., 174, or an estoppel. This question is well answered a by-law of the company contained a provision by Justice Selden, in Crawford v. Lockwood, 9 that any suit to recover for any loss might be How. Pr., 548. "A waiver is not, and bears brought at a proper court, in the County of no analogy to, a contract. The distinguishing Essex. The action was brought in the County feature of a contract is its mutuality, its quid of Suffolk. The agreement was set up as a de- pro quo, or consideration. But no considerafense, and it was insisted that by force of the tion is necessary to support a waiver. It is, in agreement the action should have been com- this respect, like a gift, to which, indeed, it menced in Essex County. The opinion of Chief bears in many respects a close analogy. Gifts Justice Shaw is quite lengthy. He concludes as can only be made to take effect in præsenti. follows: "There being no authority upon Blackstone says: 'A true and proper gift is alwhich to determine the case, it must be decided ways accompanied with delivery of possession, upon principle. The question is not without and takes effect immediately."2 Bl. Com., 441. difficulty, but upon the best consideration the Of course, then, a gift must be of something court have been able to give it, they are of in esse at the time. There are three things esopinion that it is not a good defense to this ac-sential to every gift; a donor, a donee and a tion, that it was brought in the County of Suf- thing given. Dyer, 244. folk and not in the County of Essex, and, therefore, that the exception must be sustained," etc. In Amesbury v. Bowditch M. F. Ins. Co., 72 Mass., 596, the same rule was laid down; and in Cobb v. Eng. M. Ins. Co., 72 Mass., 192, is this language: "It is a well settled maxim, that parties cannot, by their covenant, give jurisdiction to courts where the law has not given it; and it seems to follow from the same course of reasoning, that parties cannot take away jurisdiction where the law has given it. There is another analogy which tends with The court are, therefore, of the opinion that the equal force to the same conclusion. stipulation in one of the conditions of the pol-common law a release can operate only upon a icy, that in case of loss no action shall be vested, and not upon a contingent right. A rebrought upon it except in the County of Wor-lease of a possibility is void. For instance, an cester, is no legal bar to an action in this county, where by law the action might be brought, if no such combination had been made."

In Hobbs v. Manhattan Ins. Co., 56 Me., 421, Chief Justice Appleton says: "Parties cannot, by any agreements, confer jurisdiction where it is not given by an Act of Congress. When so given, they cannot oust the courts of the United States of the jurisdiction conferred upon them." In Stephenson v. P. F. & M. Ins. Co., 54 Me., 70, the court says: "Such stipulations are repugnant to the rest of the contract and assumeto devest courts of their established jurisdictions. As conditions precedent to an appeal to the courts, they are void."

The same principle runs through that long line of decisions which hold as invalid, agreements to leave all matters in dispute to arbitrators, when offered as a bar to a prosecution

of suits in court.

Nothing short of the execution of the intent to give, can make a valid gift. 2 Bl. Com., 441; Pearson v. Pearson, 7 Johns., 26.

The parallel in this respect between a waiver and a gift seem to me to be close, if not perfect. To waive, no less than to give, implies a present act. If I say I waive some right which I may have next week, this can mean nothing more than that, when the time arrives, I will not insist upon the right.

By the

heir at law cannot release to his father's disseisor, because his heirship, and consequently the right released, is contingent.

Co. Litt., 265, a; Lampet's Case, 10 Coke, 51. "So if a conusee of a statute release to the conusor all his right to the land, he may nevertueless sue out execution, because he has only a possibility, but no vested right to the land." Co. Litt., 265, a; Barrow v. Gray, Cro. Eliz., 552.

"Now, a release and waiver are alike in this: when valid, each operates to extinguish a right." "A right not yet in being, but which depends upon a contingency, cannot be the subject of a waiver."

"The defendant, however, seeks to apply the principle of estoppel, in pais to the case, and claims that the plaintiff should be precluded from setting up and seeking to enforce a right

which he has agreed, upon sufficient considera tion, to relinquish.

"But estoppel in pais is a rule of evidence, and not a mode of enforcing contracts."

"An admission by a person as to the law, or as to the legal effect of his contract, is never held to estop him."

Polk's Lessee V. Robertson, 1 Overton (Tenn.), 463; Boston Hat Company v. Messinger, 19 Mass., 223.

"It is also necessary that the fact should be one of which the party claiming the benefit of the estop was ignorant. The basis of an estoppel in pais is fraud."

also the case of The Glens Falls Ins. Co. v. Judge of Jackson Circuit, 21 Mich., 580, which is a case analogous to this, and where the question was directly raised.

Mr. Justice Hunt delivered the opinion of the court:

This action was commenced in the Circuit Court of Winnebago County, Wisconsin, to recover the amount alleged to be due upon a policy of insurance issued by the plaintiffs in error to the defendants in error, upon the steamboat Diamond. The Home Insurance Company is a Corporation organized under the "But there must have been a confidence re-laws of the State of New York, and having its posed which would be betrayed to the injury of one party, if the other is permitted to retract his admission or denial." Messrs. John W. Cary and G. Bouck, for defendants in error:

office and principal place of business in the City of New York.

The Company entered its appearance in the Winnebago County suit, and filed its petition to remove the cause to the United States CirThat corporations created by the laws of one cuit Court for the Eastern District of WisconState have not the absolute right to recognition sin. The petition was in the form required by and to do business in another State, is not open the 12th section of the Act of 1789, and was acfor argument; the question has been adjudicat-companied by a bond with sufficient bail, as ed by this court. required by that Act.

Bank of Augusta v. Earle, 13 Pet., 519; Paul v. Virginia, 8 Wall., 168, 19 L. ed., 357, and cases there cited; People v. Murray, 5 Hill, 468.

Even if the state law is unconstitutional, the defendant cannot repudiate the same. There is no question but that the State can prohibit these foreign companies from doing business in this State, or impose such conditions as it sees fit. Paul v. Virginia, supra.

It is well settled that a party cannot be allowed to claim under and at the same time repudiate, etc.

Burrows v. Bashford, 22 Wis., 103; People v. Murray, 5 Hill, 468; Van Allen v. The Assessors, 3 Wall., 573, 18 L. ed., 229; Dunmore's Appeal, 52 Pa. St., 374.

The Legislature was granting a favor. It could impose its own restrictions; it matters not how much those conditions may conflict with the legal or constitutional rights of these companies.

The Circuit Court of Winnebago County refused to grant the prayer for removal, but proceeded to the trial of the cause. A verdict was rendered against the Company, judgment entered thereon, and upon an appeal to the Supreme Court of Wisconsin the same was affirmed. The Insurance Company now bring a writ of error to this court.

The case of The Montello was argued at the same time with the present, both cases, as it was understood, involving the question whether the Fox River was a navigable water of the United States. The decision of the question is not essential to the judgment to be rendered in the present case.

The refusal of the State Court of Wisconsin to allow the removal of the case into the United

States Circuit Court of Wisconsin, and its justification under the agreement of the Company and the Statute of Wisconsin, form the subject of consideration in the present suit.

The Statute of Wisconsin in question was See People v. Murray, 5 Hill, 468; the doc- passed in the year 1870, and therein it is detrine of which case is fully sustained by this clared that "It shall not be lawful for any fire court in Burrows v. Bashford, 22 Wis., 108; insurance company, association or partnership, Van Slyke v. State, 23 Wis., 655; Bagnall v. incorporated by or organized under the laws of State, 25 Wis., 112; Darge v. Iron Mfg. Co., 22 any other State of the United States or any forWis., 417; Arnet v. Ins. Co., 22 Wis., 516; eign Government, for any of the purposes speciLadd v. Hildebrant, 27 Wis., 135; Bank of Co-fied in this Act, directly or indirectly to take lumbia v. Okely, 4 Wheat., 235.

This contract of insurance was made under this law, the effect of which is substantially to provide, that if the assured desire it, the state court shall have jurisdiction to try the same, and the insurer waives his right to remove to the United States Court, and agrees that the same shall be tried in state courts; and it is analogous to the law chartering the Milwaukee M. M. Ins. Co. See, Arnet v. Ins. Company, 22 Wis., 516.

A contract made under the law is presumed to be made in reference to the same. The law of every State where a contract is made enters into and makes part of the contract.

Blanchard v. Russell, 13 Mass., 1; Mather v. Bush, 16 Johns., 238.

Upon this question, see decision of the Superior Court of Wis., in this case, 30 Wis., 496;

an

risks or transact any business of insurance in this State, unless possessed of the amount of actual capital required of similar corporations to transact any such business as aforesaid, by any agent or agents, in this State, it shall first appoint an attorney in this State, on whom process of law can be served, containing agreement that such company will not remove the suit for trial into the United States Circuit Court or Federal Courts, and file in the office of the Secretary of State a written instrument duly signed and sealed, certifying such appointment, which shall continue until another attorney shall be substituted.”

Laws of 1870, ch. 5, sec. 56, p. 87, or 1 Tayl. Stat., p. 958, sec. 22.

Desiring to do business in the State of Wisconsin, and in compliance with the provisions of this statute, the Home Insurance Company, of New York, on the first day of July, 1870,

filed in the office of the Secretary of State of | ciple that parties cannot by contract oust the Wisconsin an appointment of Henry S. Durand, ordinary courts of their jurisdiction. That has as their agent in that State, on whom process been decided in many cases. Perhaps the first might be served. The power of attorney thus case 1 need refer to was a case decided about a filed contained this clause: "And said com- century ago. Kill v. Hollister, 1 Wils., 129. pany agrees that suits commenced in the State That case was an action on a policy of insurCourts of Wisconsin shall not be removed by ance in which there was a clause that in case of the acts of said Company into the United any loss or dispute it should be referred to arStates Circuit or Federal Courts." bitration. It was decided there that an action would lie, although there had been no [*452 reference to arbitration. Then, after the lapse of half a century, occurred a case before Lord Kenyon, and from the language that fell from that

In each of these cases, the general language of the learned justice is to be expounded with reference to the subject before him. They lay down principles in general terms which are to be understood only with reference to the facts in hand. Thus, the case in which the opinion was delivered by Mr. Justice Field was one involving the construction of that clause of the United States Constitution which declares that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." and of that clause regulating commerce among the States, not of the one now before us. It involved the question whether The Home Insurance Company is a citizen the State might require a foreign insurance of New York, within this provision of the Con-company to take a license for the transaction of stitution. As such citizen of another State, it its business, giving security for the payment of sought to exercise this right to remove to a its debts, and decided that taking insurance