expressly provides that where the alleged adulterer is named in the petition as co-respondent, the claim made by every such petition shall be heard and tried on the same principles, in the same manner, and subject to the same or the like rules and regulations as actious for criminal conversation are now tried and decided in courts of common law. Under this provision particulars have been ordered on the application of the co-respondent as well as of the respondent. Higgs v. Higgs, 11 Weekly Rep. 154, and see Hunt v. Hunt and Duke, 2 Swab. & Trist. 574.

The cases in which the complainant has been required to furnish particulars on the application of the respondent are too numerous to justify their citation here. There are nearly a dozen of them in volumes 2 and 3 of Swaby & Tristram's Probate and Divorce Court Reports, which we have examined, and a similar order was made by the Supreme Court of Massachusetts in 1834, in the case of Adams v. Adams, 16 Pick. 254. In this State, Chancellor Walworth, in the case of Wood v. Wood, 2 Paige, 108, laid down the rules which have since governed in actions between husband and wife for divorce, and rendered applications for bills of particulars unnecessary. It must be remembered that here, when the charge of adultery is denied, the issue must be tried by jury unless the parties consent to a different mode of trial, and it is even doubtful whether they should be permitted so to consent, but in a contested case the chancellor laid down the rule as follows:

"The only safe and prudent course is to require the charge, whether of crimination or recrimination, to be stated on the pleadings and in the issues in such a manner that the adverse party may be prepared to meet it on the trial. If the persons with whom the adultery was committed are known, they must be named in the defendant's answer, and the adultery must be charged with reasonable certainty as to time and place. If they are unknown, that fact should be stated in the answer and in the issue, and the time and circumstances under which the adultery was committed should be set forth. Neither party has a right to make such a charge against the other on mere suspicion, relying upon being able to fish up testimony before the trial to support the allegation."

The chancellor here speaks of setting forth the particulars in the answer because the case then before him was one of recrimination. In the case of The Commonwealth v. Snelling, 15 Pick. 321, Chief Justice Shaw gave a very thorough examination to the subject of the practice of the courts of common law in requiring bills of particulars, and the principle upon which it is founded, and, after an extensive review of the authorities, came to the conclusion that the general rule to be extracted from them was that where in the course of a suit, from any cause, a party was placed in such a situation that justice could not be done at the trial without the aid of the information to be obtained by means of a specification or bill of particulars, the court, in virtue of its general authority to regulate the conduct of trials, had power to direct such information to be seasonably furnished. The authorities cited by him are decisions in civil cases, but by analogy he applied the principle to a criminal prosecution for libel, and sustained an order requiring the prisoner to furnish particulars of his justification of a general libelous charge against the magistrate.

The same rule is laid down in a recent case in the Court of Queen's Bench in Ireland (Early v. Smith,

Cyss. Com. Law R., Appendix, 35), where it was held, and on the authority of many of the same decisions which are cited by Chief Justice Shaw, that the rule which governs the courts in ordering particulars to be given, is that in all cases, whether trespass, trover, or on the case, the court has a general superintending power and control, no matter what the form of the action may be. If the complaint or declaration is conceived in vague and general terms, without specifying the circumstances under or the occasions on which the plaintiff relies, and the defendant satisfies the court, by affidavit, that either for the purpose of pleading or of defense at the trial it is necessary that the plaintiff be more specific and more clearly define his cause of action, the court has a general jurisdiction to order the plaintiff to give a more precise and specific description of that upon which he relies. In the case last cited, a bill of particulars was ordered in a case of oral slander. Although no precedent could be found for an order for particulars in such a case, the court determined that the circumstances presented to them brought the case by analogy within the reasons of those in which particulars had been ordered, and that therefore they were authorized to afford the relief required.

A reference to a few of the authorities upon which these decisions were founded will show that in almost every case in which defendant can satisfy the court that it is necessary to a fair trial that he should be apprised beforehand of the particulars of the charge which he is expected to meet, the court has authority to compel the adverse party to specify these particulars so far as is in his power.

For instance, in Doe v. Phillips, 6 Term Rep. 597, an action of ejectment was brought. It was made to appear to the court that the action was founded upon the alleged forfeiture of a term of a lease by the breach of covenants contained in the lease. The court ordered the plaintiff to furnish particulars of the breaches of the covenants, of the times when, etc., he meant to insist that the defendant had forfeited the lease. To the same effect was the case of Doe v. Brood, 2 Man. & Gr. 523; see in Davies v. Chapman, 6 Adol. & Ell. 767, it was held that in an action for an escape the plaintiff might properly be ordered by a judge to give a particular of the alleged escape, specifying the time and place, and that the plaintiff is bound to specify them precisely, if he could, and if not, as well as he was

able.

Analogous cases are to be found throughout the books in this State. It was long since recognized that in actions of ejectment, to ascertain the precise premises for which the plaintiff was proceeding the constant course was to obtain a bill of particulars. Vischer v. Conant, 4 Cow. 396, and so in actions of trover, Humphrey v. Cottleyou, id. 54. As I have already shown, there is no class of cases in which, in England, even at the present day, it is more common to order particulars to be furnished than in actions in which adultery is charged. If the charge is general and vague, X particulars are always ordered. As early as the year 1692, in the case of the proceeding for divorce against the Duchess of Norfolk, before the House of Lords of England (reported in 8 Hargrave's State Trials, 35, and Howell's State Trials, vol. 12, p. 833) the Duchess demanded particulars of the charge against her. They were ordered. The complainant furnished a statement that the person charged to have committed the crime with the Duchess was John Germaine, of, etc.,

and that the times were between the months of June and December, 1685, and several times since, specifying places. The petition of her husband was presented in 1692. To this charge, covering six years, she answered that the charge as to time and place was too general, and did not answer the end of the order of the House of Lords. A further and more definite bill of particulars was then furnished, affording the complainant an extensive field for proof, but at the same time indicating to defendant the periods and occasions in respect to which she was called upon to defend herself.

Without following the line of English decisions I come at once to those of our courts in Pennsylvania as early as 1784. In the case of Steele v. Steele, 1 Dall. 49, after Issue was joined in an action for a divorce for cruelty, the court held that notice ought to be given of the facts intended to be proved under the general allegations of the libel. In 1805, in Garray v. Garray, 4 Yates, 244, the libel charged that the respondent, on the 10th of June, 1799, at the county aforesaid, and at other times and places, committed adultery with Esther Palmer and other lewd women to the plaintiff unknown, and the court held, that unless the complainant, before trial, specified in a written notice the time and places, and attendant circumstances, she should be confined in the evidence to acts of adultery committed with Esther Palmer. In Massachusetts, in 1834, in the case of Adams v. Adams, 16 Pick. 254, the libel for divorce charged acts of adultery generally, and a bill of particulars was ordered. Most of the authorities which I have mentioned consist of adjudications prior to the amendment of 1849 to section 158 of the Code of Procedure, which is in these words: "And the court may, in all cases, order a bill of particulars of the claim of either party to be furnished."

It must be borne in mind that we are discussing simply a question of power, whether in the case before us the court below had power to order particulars to be furnished; not whether, upon the facts disclosed by the affidavits, the court below ought or ought not to have ordered particulars, but whether it had the power to so do. If it made a mistake in that respect we must correct it. If the Code had been silent upon the subject of bills of particulars, the 469th section would probably have sufficed to preserve the authority of the court to order particulars in all cases before accustomed. But the express authority conferred by section 158, to order particulars in all cases, especially when read in view of cases which have been and in which particulars had been ordered, would seem to place the question beyond doubt. Many of the arguments on the part of the plaintiff are more proper to be addressed to the court of original jurisdiction on the question of the exercise of its discretion, than to this tribunal. It is claimed that an important element in the plaintiff's case consists of confessions made by the defendant, and that, if particulars are ordered, it will be necessary to prove that he confessed the acts to have been committed at the dates specified in the bill of particulars. This is an imaginary difficulty. It would be absurd to suppose that any tribunal of ordinary intelligence would order a bill of particulars in such form as to exclude evidence of general confessions. The same argument in the case of Codrington v. Codrington, Andrews, 2 Swab & Trist. 368. After an order for particulars had been granted, the complainant delivered particulars in which he alleged that the respondent had committed frequent acts of adul

tery, between 1859 and 1862, with one Lieut. Mildmay, at Malta, and during a journey in Switzerland, Savoy, Sardinia, and Italy. Application was made for further particulars and it appearing that the charge was founded upon the contents of a diary and letters of the respondent which had come to the petitioner's hands, it was ordered that unless the petitioner gave further particulars, he should be confined in his proof to the confessions contained in the diary and letters.

It is further urged that the defendant, in such a case, needs no specification of particulars, because he knows better than any other, but one, the details about which he seeks information. This is petitio principii, it assumes that the defendant has committed the acts with which he is charged, while the very question to be tried is whether or not he has committed them.

A further argument is, that to make the disclosures sought will afford the defendant an opportunity to tamper with the plaintiff's witnesses. This argument has been used in many of the cases to which I have referred, and has been uniformly rejected. The principle upon which orders for particulars are granted is, the advancement of justice and the preventing of surprise at the trial. The court must see that both parties are fairly dealt with, and it cannot be presumed that it will make any order which shall shield the defendant from just responsibility.

Whether in the exercise of its discretion it should grant or refuse the order applied for we are not to decide. All that we decide is that it has the power, if it sees fit, to order particulars to be furnished, and that in deciding that it had not such power it committed an error in law which requires us to reverse its decision.

A point is made on the part of the plaintiff which requires notice. It is contended that the General Term, in affirming the order of the Special Term, must be presumed to have passed upon the merits on the facts as well as upon the law of the case, and the decision in Tracy v. Altemeyer, 46 N. Y. 598, is cited in support of this point. The answer is that in the present case it appears that the orders of the Special Term were reviewed by only two judges of the court; that they were divided in opinion, and that it was only by force of the statute specially applicable to the City Court of Brooklyn (Laws of 1870, page 1,047, § 6), that the order stood as affirmed, the two judges disagreeing.

Our conclusion is that the orders of the Special General Term of the City Court of Brooklyn be reversed without costs, and the case remitted, to be heard at Special Term; that its discretion may be exercised upon the merits.

Chief Justice Church, Justices Folger and Andrews

concur.

Here follows the opinion of Judge Allen, who dissents:

If the court below had not the power to grant the motion, the order should be affirmed. If the power existed, its exercise was in the discretion of the City Court of Brooklyn, and the action of that court in the exercise of that discretion is not the subject of review in this court. In one or more cases in which we have thought the court of original jurisdiction had erred in refusing to act by reason of a supposed want of power, we have reversed the orders and remitted the proceedings to the end that the proper court might exercise the discretion the law had vested in it. In these cases it appeared by the order and record of the

court that the decision of the court below was placed exclusively on the ground of a want of power.

Here we have not the record evidence. The motion at Special Term was denied for want of power, and for other reasons stated, showing conclusively that the relief was not denied solely upon the ground that the court had no power to grant it. The clear inference from the terms of the order is, that the judge doubted whether the court had power to order the information to be furnished; but if it had the power, a proper case had not been made for the exercise of the power. If the opinion is referred to, the same conclusion will be arrived at. The judge had evidently great doubts, and inclined to the opinion that there was a want of power, but was also of opinion that it was not a proper case for the relief if the power existed. The order at the General Term surely affirms the order without assigning or declaring the reasons, and we must assume that it was affirmed on the merits, it not appearing that it was affirmed for any other reason. If the fact be that it was affirmed under the statute by a divided court, which is not stated in the order, the result would be the same. The facts giving this court jurisdiction of the appeal must appear by the record. They do not so appear in the case. I am for the dismissal of the appeal.

Judge Grover doubts the existence of the power, but concurs in the opinion of Judge Allen.

REMOVAL OF CAUSE FROM STATE TO UNITED STATES COURT-EFFECT OF STATE LAWS-INSURANCE COMPANY.

SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1874.

HOME INSURANCE Co. of NEW YORK V. MORSE et al. By a statute of Wisconsin it was provided that a foreign insurance company doing business in that State should appoint an attorney in the State on whom process of law could be served, and enter into "an agreement that such company will not remove the suit for trial into the United States Circuit Court or Federal courts." A New York insurance company appointed an attorney and entered into an agreement in conformity to the statute. Held, 1. That 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. That the statute of Wisconsin is an obstruction to this right, and is repugnant to the Constitution and laws of the United States; and 3. That the agreement of the insurance company derived no support from an unconstitutional statute and was void, as it would be had no such statute been passed.

ERROR to the Supreme Court of Wisconsin. The opinion states the case.

HUNT, J.-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 laws of the State of New York, and having its 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 Circuit Court for the Eastern District of Wisconsin. The petition was in the form required by the twelfth section of the act of 1789, and was accompanied by a bond with sufficient bail, as required by that act.

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 that 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 passed in the year 1870, and therein it is declared, that "it shall not be lawful for any fire insurance company, association, or partnership, incorporated by or organized under the laws of any other State of the United States, or any foreign government, for any of the purposes specified in this act, directly or indirectly to take risks or transact any business of insurance in this State, unless possessed of the amount of actual capital required of similar corporations formed under the provisions of this act; and any such company desiring to transact any such business as aforesaid by any agent or agents, in this State, shall first appoint an attorney in this State on whom process of law can be served, containing an 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 be substituted." Laws of 1870, chapter 56, section 22, page 87, or 1st Taylor's Statutes, page 958, section 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 1st day of July, 1870, filed in the office of the Secretary of State of Wisconsin, an appointment of Henry S. Durand as their agent in that State, on whom process might be served. The power of attorney thus filed contained this clause: "And said company agrees that suits commenced in the State courts of Wisconsin shall not be removed by the acts of said company into the United States circuit or federal courts."

The State courts of Wisconsin held, that this statute and the agreement under it justified a denial of the petition to remove the case into the United States court. The insurance company deny this proposition, and this is the point presented for consideration.

Is the agreement thus made by the insurance company one that, without reference to the statute, would bind the party making it?

Should a citizen of the State of New York enter into an agreement with the State of Wisconsin, that in no event would he resort to the courts of that State or to the federal tribunals within it to protect his rights of property, it could not be successfully contended that such an agreement would be valid.

Should a citizen of New York enter into an agreement with the State of Wisconsin, upon whatever con

sideration, that he would in no case, when called into the courts of that State or the federal tribunals within it. demand a jury to determine any rights of property that might be called in question, but that such rights | should in all cases be submitted to arbitration or to the decision of a single judge, the authorities are clear that he would not thereby be debarred from resorting to the ordinary legal tribunals of the State. There is no sound principle upon which such agreements can be specifically enforced.

We see no difference in principle between the cases supposed and the case before us. Every citizen is entitled to resort to all the courts of the country, and to invoke the protection which all the laws or all those courts may afford him. A man may not barter away his life or his freedom, or his substantial rights. In a criminal case, he cannot, as was held in Cancemi's Case, 18 N. Y. 128, be tried in any other manner than by a jury of twelve men, although he consent in open court to be tried by a jury of eleven men. In a civil case he may submit his particular suit by his own consent to an arbitration, or to the decision of a single judge. So he may omit to exercise his right to remove his suit to a federal tribunal, as often as he thinks fit, in each recurring case. In these aspects any citizen may, no doubt, waive the rights to which he may be entitled. He cannot, however, bind himself in advance by an agreement, which may be specifically enforced, thus to forfeit his rights at all times and on all occasions, whenever the case may be presented.

That the agreement of the insurance company is invalid upon the principles mentioned, the following cases are cited: Nutt v. Ham. Ins. Co., 6 Gray, 174; Cobb v. New Eng. M. Ins. Co., id. 192; Hobbs v. Manhattan Ins. Co., 56 Me. 421; Stephenson v. P. F. & M. Ins. Co., 54 id. 70; Scott v. Avery, 5 House of Lords Cases, 811. They show that agreements in advance to oust the courts of the jurisdiction conferred by law are illegal and void.

In Scott v. Avery, supra, the lord chancellor says: "There is no doubt of the general principle that parties cannot by contract oust the ordinary courts of their jurisdiction. That has been decided in many cases. Perhaps the first case I need refer to was a case decided about a century ago. Kill v. Hollester, 1 Wils. 129. That case was an action on a policy of insurance in which there was a clause that in case of any loss or dispute it should be referred to arbitration. It was decided there that an action would lie, although there had been no 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 learned judge, many other cases had probably been decided which are not reported. But in the time of Lord Kenyon occurred the case which is considered the leading case on the subject, of Thomson v. Charnock, 8 T. R. 139. That was an action upon a charterparty, in which it was stipulated that if any difference should arise it should be referred to arbitration. That clause was pleaded in bar to the action brought upon breach of the contract, with an averment that the defendant was, and always had been, ready to refer the same to arbitration. This was held to be a bad plea, upon the ground that a right of action had accrued, and that the fact that the parties had agreed that the matter should be settled by arbitration did not oust the jurisdiction of the courts." Upon this doctrine all the judges who delivered opinions in the House of Lords were agreed.

And the principle, Mr. Justice Story, in his Commentaries on Equity Jurisprudence (§ 670), says, is applicable in courts of equity as well as in courts of law. “And where the stipulation, though not against the policy of the law, yet is an effort to divest the ordinary jurisdiction of the common tribunals of justice, such as an agreement in case of dispute to refer the same to arbitration, a court of equity will not any more than a court of law interfere to enforce the agreement, but it will leave the parties to their own good pleasure in regard to such agreements. The regular administration of justice might be greatly impeded or interfered with by such stipulations if they were specifically enforced."

In Stephenson v. P. F. & M. C. Ins. Co., 54 Me. 70, the court say: "While parties may impose as condition precedent to applications to the courts that they shall first have settled the amount to be recovered by an agreed mode, they cannot entirely close the access to the courts of law. The law and not the contract prescribes the remedy, and parties have no more right to enter into stipulations against a resort to the courts for their remedy in a given case, than they have to provide a remedy prohibited by law; such stipulations are repugnant to the rest of the contract, and assume to divest courts of their established jurisdiction; as conditions precedent to an appeal to the courts, they are void." Many cases are cited in support of the rule thus laid down. Upon its own merits, this agreement cannot be sustained.

Does the agreement in question gain validity from the statute of Wisconsin, which has been quoted? Is the statute of the State of Wisconsin, which enacts that a corporation organized in another State shall not transact any 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, a valid statute in respect to such requisition, under the constitution of the United States?

The constitution of the United States declares that the judicial power of the United States shall extend to all cases in law and equity arising under that constitution, the laws of the United States, and to the treaties made or which shall be made under their authority, * * * * to controversies between a State and citizens of another State, and between citizens of different States (Art. 3, § 2.)

The jurisdiction of the federal courts, under this clause of the constitution, depends upon and is regulated by the laws of the United States. State legislation cannot confer jurisdiction upon the federal courts, nor can it limit or restrict the authority given by congress in pursuance of the constitution. This has been held many times. Whelter v. Railway Co., 13 Wal. 286; Payne v. Cork, 7 id. 437; More v. Taylor, 4 id. 411, and cases cited.

It has also been held many times, that a corporation is a citizen of the State by which it is created, and in which its principal place of business is situated, so far as that it can sue and be sued in the federal courts. This court has repeatedly held that a corporation was a citizen of the State creating it, within the clause of the constitution extending the jurisdiction of the federal courts to citizens of different States. Express Co. v. Kountze, 8 Wall. 342; Combes v. Mercer Co., 7 id. 118: Whelter v. Railway, 13 id. 275; Wheeler v. O. & M. R. Co., 1 Black, 286.

The twelfth section of the judiciary act of 1789 pro