REMOVAL OF CAUSES.

1105

decision and were overruled by this court. The Supreme Court of the United States, upon writ of error, held, in the words of Chief Justice Waite, that the transfer was properly refused, and affirmed the judgment. Vannevar v. Bryant, 21 Wallace, 41. A similar decision was made upon a writ of error to the Supreme Court of Iowa in Railroad Co. v. McKinley,

99 U. S. 147.

"In Fashnacht v. Frank, 23 Wallace, 416, an alien, whose property had been ordered by a decree of a district court of the State of Louisiana to be sold, at the suit of a citizen of that State holding a mortgage thereon, obtained from the same court a temporary injunction, which upon hearing was dissolved, and afterwards filed a petition, under the act of Congress of July 27, 1866, for the removal of the case into the Circuit Court of the United States, which was refused; and he then appealed from the decree dissolving the injunction to the Supreme Court of Louisiana, which affirmed that decree. The Chief-Justice of the United States, in delivering the judgment of the Supreme Court dismissing for want of jurisdiction a writ of error to the State court, said that the petition for removal was at once very properly overruled, for the reason that a final judgment had already been rendered,' and that the appeal to the Supreme Court of the State was clearly the appropriate remedy for the correction of the errors of the district court if there were any.'

"In another case, a defendant's petition for removal, under the Judiciary Act of 1789, which alleged the citizenship of the plaintiff at the date of the petition, but not at the time of the commencement of the action, was for that reason refused by the Supreme Court of New York, and its judgment affirmed in the Court of Appeals. Pechner v. Phoenix Ins. Co., 6 Lansing, 411, and 65 N. Y. 195. The case was taken by writ of error to the Supreme Court of the United States, and it was there argued that the compliance with the conditions of the act of Congress ousted the Supreme Court of New York of its jurisdiction; and all further proceedings therein were void. But the judgment was affirmed; the Chief-Justice saying: This right of removal is statutory. Before a party can avail himself of it, he must show upon the record that his is a case which comes within the provisions of the statute. His petition for removal when filed becomes part of the record in the cause. It should state facts which, taken in connection with such as already appear, entitle him to the transfer. If he fails in this he has not in law shown to the court that it cannot "proceed further with the cause." Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspended.' The court had to take the case as made by the party himself, and not inquire further. If that was not sufficient to oust the jurisdiction there was no reason why the court might not proceed with the cause. 95 U. S. 183. A like decision was made where petitions under the act of 1867 contained defective allegations of the citizenship of the adverse party; and the Chief-Justice said: Holding as we do that a State

1106

REMOVAL OF CAUSES.

court is not bound to surrender its jurisdiction upon a petition for removal until at least a petition is filed which, upon its face, shows the right of the petitioner to the transfer, it was not error for the court to retain these causes.' Amory v. Amory, 95 U. S. 186.

"In the very recent case of Meyer v. Construction Co., 100 U. S. 457, a defendant in an inferior court of the State of Iowa filed a petition under the act of Congress of March 3, 1875, for a removal of the cause into the Circuit Court of the United States. The State court refused the petition because one of the two sureties on the bond offered was an attorney of the court, who was forbidden by the law and practice of Iowa to be a surety, and because the petition was filed too late, after the trial had begun. The defendant, notwithstanding, obtained from the clerk a copy of the record, and filed it in the Circuit Court of the United States; and that court overruled a motion of the plaintiff to remand the cause. The State court, against the protest of the defendant, proceeded with the cause, and entered a final decree for the plaintiff, and the defendant appealed therefrom to the Supreme Court of the State which affirmed that decree. The cause also proceeded in the Circuit Court of the United States and there resulted in a decree for the defendant. The matter was brought before the Supreme Court of the United States by writ of error to the State court and by appeal from the decree of the federal court. The Supreme Court of the United States held that the cause was legally removed because one of the sureties was admitted to be sufficient, and the act of Congress did not require more than one; and because, upon the acts appearing on the record, the trial had not begun when the petition for removal was filed; and that the defendant had not, by taking part under protest in the subsequent proceedings in the State court, waived his right to insist that the cause had been so removed.

"The Supreme Court, on the writ of error, reversed the judgment of the Supreme Court of Iowa and remanded the cause to that court, with instructions to reverse the decision of the inferior court of that State, and to direct that court to proceed no further with the suit; and on the appeal, reversed the decree of the Circuit Court of the United States upon its merits, and remanded the cause for further proceedings in that court. But no suggestion was made that the State court had no authority, for the purpose of ascertaining whether it should retain jurisdiction of the cause, to consider whether the provisions of the act of Congress had been complied with. On the contrary, the Chief Justice, in delivering judgment, clearly implied that, if the sufficiency of the surety, or the citizenship of either party had been denied, in point of fact the State court might have inquired into it, and added: We fully recognize the principle heretofore asserted in many cases, that the State court is not required to let go its jurisdiction until a case is made which, upon its face, shows that the petitioner can remove the cause as a matter of right.'"

LECTURE LI.

The State Courts are not bound by the decisions of the Federal Courts as to Questions arising under the Local Law, and beyond the Scope of the Powers conferred on Congress. Conflict of State and Federal Jurisdiction, and its Effect on the Administration of Justice. -Congress cannot regulate the purely Internal Commerce of a State, nor can they Modify or Repeal the Rules laid down by the State Courts with regard to Matters which are reserved to the States. Power claimed and exercised by the Supreme Court of the United States under this head. - Does the Legislative Authority of the Federal Judiciary over Contracts extend beyond that of Congress? - There are in many States as to certain Subjects two different Rules: one followed by the State, the other by the Federal Courts; and the Result of the Cause depends on the Tribunal where the Suit is brought. Is the Commercial Law of the Civilized Nations susceptible of being Reduced to a common Standard? Authorities bearing on this point.

As the circle of federal authority widens, and each year increases the scope and number of the acts of Congress, the doctrine that if any point is within the grant of judicial power the entire case follows, will tend to diminish the importance of the State judiciary and throw an increasing amount of business into the courts of the United States. Whether such a result will conduce to the public good must obviously depend on the character and ability of the men who sit in the respective tribunals; and we may believe that if the States persist in choosing their judges for short terms of years by a popular vote, and the United States adhere to the Constitutional tenure of good behavior, an increasing preference will be shown for courts where the judiciary are raised above party prepossession and political influence.

Advantageous as our dual system may be in affording an opportunity for comparison and choice, it has some consequences that cannot be pronounced an unmixed good.

1108

AUTHORITY OF FEDERAL DECISIONS.

Co-ordinate tribunals, which have no common head, necessarily diverge, even when administering the laws of the same territory, a truth amply verified by the course of American jurisprudence. Questions growing out of contracts made and to be performed in a State are decided by the national court of last resort not in accordance with the unwritten or customary law of the State where they originated, as expounded by its courts, but agreeably to some theoretic view of a general commercial law which does not exist, and is not to be found in the books.1 The State courts, on the other hand, adhere to their own precedents, and do not consider themselves entitled to impair the obligations of contracts that have been made in reliance on the principles which they have laid down through a long series of years. The result is a conflict of jurisdiction which there are no means of allaying, because the Supreme Court of a State and the Supreme Court of the United States stand as to such matters on equal ground. Neither is under an obligation to regard the decisions of the other as authoritative; and as a writ of error will not lie on either side, both are as independent as if they were administering different systems of jurisprudence, and held their offices under governments having no common bond. Different rules of interpretation are consequently applied to the same contract by judges sitting in the same town, and the result of the suit will vary with the court in which it is instituted, or where the case is tried.2

1 See Swift v. Tyson, 16 Peters, 1; Carpenter v. Providence Insurance Co., Id. 495; Miller v. Austin, 13 Howard, 218; Dred Scott Case, 19 Id. 393, 603; Watson v. Tarpley, 18 Id. 521; Oates v. National Bank, 100 U. S. 245; The Railroad Co. v. National Bank, 102 U. S. 14; McBride v. The Farmers' Bank, 26 N. Y. 454; Brooke v. New York R. R. Co., 108 Pa. 530, 535. See ante, p. 442.

2The decisions of our court have been uniform since the time of Coddington v. Bay, 20 Johnson, 627, where it was determined that before the holder of a note can acquire a better title to it than the person from whom he received it, he must pay a present valuable consideration; and that receiving it in payment of an antecedent debt is not such a consideration. Stalker v. McDonald, 6 Hill, 93; Youngs v. Lee, 2 Kernan, 551. And we must follow these decisions, although they are in

IN THE STATE COURTS.

1109

Whether a recovery shall be had on a promissory note which has been taken as collateral security for an antecedent debt, against a maker from whom it was obtained by fraud, is thus made to turn in New York, Pennsylvania and Ohio, not on any settled rule, but on the tribunal by which the cause is heard; and if that is federal the plaintiff will prevail, if it is local the defendant. Such a result tends to

discredit the law, and shows, what might have been anticipated, that judicial legislation will rarely lead to beneficial results where co-ordinate tribunals are equally entitled to give the law, and the legislature is powerless to prescribe the rule, or to declare which of two discordant rules shall prevail. Agreeably to the general and well-settled doctrine, while the existence of a debt is a sufficient cause for the transfer of property as a means of security or payment, the creditor will not be a purchaser for value unless he enters into an agreement for forbearance, or changes his position. for the worse in some other way.2 There seems to be no reason why the negotiation of a note or bill should differ in this respect from other transfers, or confer a better title on the indorsee than that of the indorser. A consideration is necessary to the validity of a promissory note under the doctrines both of the commercial and common law, and if it is wanting between the original parties, a subsequent holder ought not to recover unless he gave or surrendered something in the belief that the note was good in the hands of the payee.3

Such was the generally received opinion at the beginning of this century, and down to a comparatively recent period.

conflict with that of the federal court in Swift v. Tyson." McBride v. The Farmers' Bank, 26 N. Y. 450, 454. See Brooke v. New York, Lake Erie, & Western R. R. Co., 108 Pa. 530.

1 The Railroad Co. v. The National Bank, 102 U. S. 29. See ante, 442.

* Morse v. Godfrey, 3 Story, 364; Petrie v. Clark, 11 S. & R. 377; Garrard v. The Railroad Co., 29 Pa. St. 154, 160; Ashton's App., 73 Pa. 153, 163; 2 Lead. Cas. in Eq. (4th Am ed.) 83.

8 2 Am. Lead. Cas. (5th ed.) 227.