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properly refused; dissenting opinion in Railway v. Stringer, 32 Ohio St. 485, majority holding lower court improperly denied petition for removal. Limited in Stone v. Sargent, 129 Mass. 507, entertaining bill of exceptions to order of judge granting removal
Courts. Prohibition in judiciary act against granting injunc tions by Federal courts, touching proceedings in State courts, has no application to bill to enjoin proceedings in State court after cause is properly removed; prior Jurisdiction of Circuit Court took case out of provision, p. 253.
Cited and applied in Sharon v. Terry, 13 Sawy. 429, 36 Fed. 366, 1 L. R. A. 592, and n., reviewing authorities, and restraining parties from using, in State courts, a paper Circuit Court had declared forged; Texas & Pac. Ry. Co. v. Kuteman, 54 Fed. 551, 13 U. S. App. 99, enjoining threatened multiplicity of suits; Lanning v. Osborne, 79 Fed. 662, reviewing authorities, enjoining proceedings in State court, subsequent to removal; Iron Mountain R. Co. v. Memphis, 96 Fed. 131, reviewing authorities, error in Circuit Court to refuse to enjoin sult in State court; Rodgers v. Pitt, 96 Fed. 670, 671, collecting numerous authorities, restraining prosecution of pending action in State court.
Distinguished in Logan v. Greenlaw, 12 Fed. 19, entertaining bill by creditor for settlement of partnership, though similar bill between partners was pending in State court; Rensselaer, etc., R. Co. v. Bennington, etc., R. Co., 18 Fed. 618, refusing to enjoin proceedings under unconstitutional statutes; Hamilton v. Walsh, 23 Fed. 420, refusing to enjoin proceedings begun first in State court; Gates v. Buski, 53 Fed. 969, 12 U. S. App. 69, holding injunction not properly granted as to property already in custody of State court; Chicago, etc., Ry. Co. v. St. Joseph, etc., Co., 92 Fed. 25, refusing to enjoin where judgment of Federal court was mere matter of evidence, in suit on another cause of action.
Miscellaneous.- Osborn v. Michigan Air Line, 2 Flipp. 506, F. C. 10,594, not in point.
22 Wall. 254-263, 22 L 837, CONNOYER v. SCHEFFER. Public lands.- Effect of confirmation of Spanish grant in favor of original and derivative claimants, considered, pp. 261–263. Not cited.
22 Wall. 263-276, 22 L. 755, HAMPTON v. ROUSE.
Taxation.- Valid offer to redeem land from tax sale may be made by owner, or any person willing to act for party interested, on ground that an act done for benefit of another is valid, if ratified, ratification being presumed, p. 274.
Bankruptcy.- Under bankrupt act of 1867, title to property of bankrupt is not affected by adjudication, but remains in him unt"
assignee is appointed and qualified, and conveyance or assignment is made to him; until that time bankrupt may exercise his right to redeem land sold for taxes, p. 275.
Approved and principle applied in Conner v. Long, 104 U. S. 230, 26 L. 724, where sheriff, having sold property under attachment, was not liable for conversion; Robinson v. Hall, 8 Ben. 63, F. C. 11,952, where mortgage given after adjudication was held valid; Crompton v. Conkling, 9 Ben. 230, F. C. 3,407, one taking loan from bankrupt after petition filed must respond to assignee; Sedgwick v. Grinnell, 9 Ben. 431, F. C. 12,612, where right to redeem bankrupt's property from mortgage was cut off by decree before assignment; Tufts v. Sylvester, 79 Me. 216, 1 Am. St. Rep. 305, 9 Atl. 358, bankruptcy messenger could not prevent stoppage in transitu before appointment of assignees; Sage v. Heller, 124 Mass. 214, no adjudication or assignment to assignee having been made, attachment was not dissolved; Ligon v. Allen, 56 Miss. 636, holding legal title remained in bankrupt even after property was surrendered under composition; Haley v. Thurston, 60 N. H. 205, holding sheriff liable for failure to levy execution.
Distinguished in In re Tifft, 23 Fed. Cas. 1215, enjoining sale under levy made after petition filed; Ewing v. Van Wagenen, 6 Wash. 47, 32 Pac. 1011, holding conveyance to assignees not necessary under local insolvency law.
22 Wall. 276-308, 22 L. 871, MECHANICS, ETC., BANK ▼. UNION BANK.
War.- Constitution did not prohibit creation by military authority of courts for trial of civil causes during Civil War, in conquered portions of insurgent States, p. 296.
Approved in Daniel v. Hutcheson, 86 Tex. 61, 22 S. W. 937, reviewing authorities, a sale under order of court of reconstruction period, held valid.
War.- General in command of Federal army which possessed New Orleans, in 1862, had authority to appoint provost judge, with jurisdiction over civil cases, p. 297.
Cited, arguendo, in Betz v. Illinois Cent. R. Co., La. Ann. 24 So. 646, 656, sustaining title to land granted by register of land office, under Constitution of 1864.
Army and navy.- Provost Court ordinarily has cognizance of minor criminal offenses only, but larger jurisdiction may be given to it, p. 297.
Courts. Whether civil jurisdiction was conferred on Provost Court is not Federal question, and will not be considered on writ of error to review judgment of State court which upheld that ju risdiction, p. 297.
Constitutional law. Legislation of a State may validate judg ments of a court, though in giving the judgment court may have transcended its jurisdiction, p. 298.
22 Wall. 808-322, 22 L. 783, GAVINZEL v. CRUMP.
Contracts.- Court cannot import words into a contract, making it materially different in vital particular, p. 319.
Evidence.- Parol, to explain written contract, not admissible where there is no ambiguity, p. 319.
Evidence. Parol evidence, not competent to alter terms of written agreement, by showing antecedent parol agreement between the parties, different in material particular, p. 319.
Contracts. If parties make contracts, where there is no fraud, upon contingencies uncertain to both, with equal means of information, courts cannot set them aside; e. g., loan of Confederate money, to be repaid in such currency as termination of Civil War should bring with it, p. 321.
Cited and principle applied in Lumley v. Wabash Ry. Co., 71 Fed. 27, reviewing cases, refusing to relleve against agreement signed by party who did not know its contents; Tredway v. Johnson, 33 Mo. App. 142, refusing to relieve against loss by certain speculation in stocks; Macaulay v. Palmer, 125 N. Y. 743, 26 N. E. 912, contract in rebellious States, not in aid of Rebellion, not invalid.
Distinguished in Rives v. Duke, 105 U. S. 142, 26 L. 1034, holding bond, which contemplated payment in Confederate money, should be paid in its value in Federal currency.
22 Wall. 322-329, 22 L. 823, RAILWAY CO. v. RAMSEY.
Courts Jurisdiction.- Federal jurisdiction, resting upon diverse citizenship, must be affirmatively shown by record, but need not necessarily be averred in pleadings, p. 326.
Cited and applied in Briges v. Sperry, 95 U. S. 403, 24 L. 390, where court looked to the petition for transfer; Steamship Co. v. Tugman, 106 U. S. 122, 27 L. 89, 1 S. Ct. 60, where citizenship ap pearing from the complaint, averment was not necessary in petition; Grace v. American Cent. Ins. Co., 109 U. S. 284, 27 L. 935, 8 S. Ct. 210, collecting cases, and holding averment of party's residence not sufficient; Chapman v. Barney, 129 U. S. 682, 32 L. 801, 9 S. Ct. 427, collecting authorities, where averment of residence of joint-stock company was held bad; Denny v. Pironi, 141 U. S. 124. 35 L. 658, 11 S. Ct. 967, reviewing authorities, averment in re mittitur of portion of judgment held not sufficient; Mexico South Bank v. Reed, 17 Fed. Cas. 243, holding citizenship need not ap pear in caption of petition; Long v. Buford, 24 Fed. 248, remanding
cause where one defendant was citizen of same State with plainttif; Danahy v. National Bank, 64 Fed. 149, 24 U. S. App. 351, character of bank did not give Federal court jurisdiction; Withers v. Hopkins Place Sav. Bank, 104 Ga. 94, 30 S. E. 768, removal properly granted without trial of facts alleged in petition.
Distinguished in Robertson v. Cease, 97 U. S. 648, 24 L. 1058, holding averment of citizenship in paper, not properly part of record, insufficient.
Courts. Restoration of lost files, not absolutely necessary to support jurisdiction, having once been there, court is presumed to know their contents, p. 327.
Evidence.- Parol evidence is admissible to aid memory of court as to contents of lost files, p. 327.
Courts.- Consent cannot give Federal jurisdiction, but parties may admit facts which show jurisdiction, and court may act Judicially thereupon, p. 327.
Cited in Davies v. Lathrop, 21 Blatchf. 165, 13 Fed. 566, where waiver of right to object to removal was implied from trial without objection; Ex parte Rice, 102 Ala. 675, 15 So. 451, where right to object to a removal by consent was held waived; Thornton v. Baker, 15 R. L. 555, 2 Am. St. Rep. 927, 10 Atl. 618, undecided whether party was estopped by recital of deceased's residence in petition for probate. See note in 15 Am. St. Rep. 217.
Removal of causes.- Procedure by party desiring removal, stated, p. 328.
Removal of causes.- - If, upon hearing of petition for transfer of cause from State to Federal court, it is sustained by the proof, State court can proceed no further; has no discretion, and must permit transfer, p. 328.
Cited in Ex parte Grimball, 61 Ala. 607, collecting cases, and holding transfer properly refused, where controversy was not wholly between citizens of different States; Delaware, etc., Co. v. Davenport, etc., R. Co., 46 Iowa, 415, holding petition must be accompanied by verification or proof of facts; Goddard v. Bosson, 21 Kan. 149, reviewing cases, transfer properly refused where petition was unverified and bond unapproved; Hyatt v. McBurney, 18 S. C. 212, transfer refused where answer contradicted averment of petltion as to citizenship; White v. Holt, 20 W. Va. 808, 809, awarding mandamus to compel lower court to proceed, where transfer was refused on facts.
Limited in Burlington, etc., Ry. Co. v. Dunn, 122 U. S. 515, 30 L. 1160, 7 S. Ct. 1263, reversing S. C., 35 Minn. 78, 27 N. W. 451, holding State court must admit facts stated in petition, upon hearing; dissenting opinion in Dunn v. Burlington, etc., R. Co., 35 Minn. 82, 83, 27 N. W. 453, majority holding proof should be made of facts stated in petition.
Removal of causes. After transfer of case to Federal court, files were destroyed by fire; parties thereupon, by stipulation, admitted loss of files, that cause had been transferred according to statute, and that copies of pleadings might be filed; case then went to trial, without objection by parties or court. Held, that jurisdic tional facts were affirmatively shown by record, pp. 326-329.
Cited in Bosworth v. Providence, 17 R. I. 59, 20 Atl. 97, where party waived certain reasons of appeal by failure to introduce evidence.
Distinguished in Denny v. Pironi, 141 U. S. 124, 35 L. 658, 11 8. Ct. 967, reviewing authorities, such facts must appear in paper, properly part of record on which judgment is entered.
22 Wall 329-341, 22 L. 786, STEPHEN v. BEALL
Joint tenant, or tenant in common, may convey his portion of the estate without affecting interests of co-tenants, though there is an attempt to convey the whole, pp. 335, 336.
Quieting title.- No cloud is cast upon title by proceeding or claim, where record, through which title is to be made, shows defense to claim, p. 336.
Parties. Where one joint tenant, or tenant in common, makes deed of trust purporting to convey whole property, but records show interests of all co-tenants, those who did not join in deed, are not proper parties in action to enforce it, pp. 335, 336.
Explained and limited in Detweiler v. Holderbaum, 42 Fed. 340, holding devisees necessary parties in foreclosure of mortgage given by executor.
Husband and wife. Married woman may, by joining in deed with her husband, convey any interest she has in real estate; such deed conveys interest of both, p. 337.
Cited in Hall v. Dotson, 55 Tex. 525, reviewing authorities, where wife joined husband in deed of trust to secure debt of third person.
Husband and wife.- Where she has exercised her power in legal manner, and there is the required evidence of due execution, married woman may charge her separate estate with payment of her husband's or other debts, p. 338.
Cited and principle applied in Vantilburg v. Black, 3 Mont. 466, reviewing authorities, holding judgment against married woman, on note, erroneous; Thompson v. Ela, 58 N. H. 491, citing cases, a mortgage of wife's property, to secure husband's debts, held valid; Flaum v. Wallace, 103 N. C. 311, 9 S. E. 570, reviewing authorities, and holding wife bound by written contract charging her personal estate; Webster v. Helm, 93 Tenn. 332, 24 S. W. 490, married woman's equitable separate estate bound by her contract as surety;