[No. 5594.]

[Filed December 5, 1877.]

GLASSCOCK vs. ASHMAN ET AL.

EXECUTION -FAILURE TO RETURN -DAMAGES-FINDINGS.-This suit was brought to recover actual damages alleged to have been sustained by the failure to return the execution. The averment was denied and the Court below failed to find whether or not such damages were sustained; plaintiff now claims that inasmuch as the Court found that the executions were in the hands of the Sheriff, he was entitled to recover prima facie the amount of the execution as damages. Heed, that such did not amount to a finding that damages were sustained, as the evidence for defendants might have overcome the presumption thus raised.

In the complaint the plaintiff alleges that he has sustained actual damages (in addition to the statutory penalty) by reason of the failure of the Sheriff to return the executions. This averment is denied by the answer, and the court below did not find whether such damages were or were not sustained, or, if sustained, in what amount. This was a failure to find on a material issue made by the pleadings.

It is claimed by the plaintiff that, inasmuch as the court found that the executions were in the hands of the Sheriff, and were not returned, plaintiff was entitled to recover, prima facie, the amount of the executions as actual damages. But it is manifest that the finding of a probative fact which might tend to prove, or which, prima facie, did prove a certain amount of damages, is not a finding that damages were sustained, since, for aught that appears in the findings (the evidence not being before us), the evidence of defendants might have entirely overcome the presumption created by the executions.

In the absence of a finding upon the issue referred to, the judgment must be set aside and the cause remanded, with directions to the District Court, upon the evidence already taken, and upon such other evidence as may be adduced by the parties, to find upon that issue, and thereupon to enter judgment. It is so ordered.

[No. 10,314.]

[Filed November 23, 1877.]

EX PARTE CAHILL ON HABEAS CORPUS.

CRIMINAL LAW-HABEAS CORPUS-DISMISSAL OF A CHARGE BY COUNTY COURT NO BAR TO ANOTHER PROSECUTION. The prisoner was charged with an offense amounting to a felony, and the County Court ordered a dismissal of the charge. He was subsequently held to answer before a committing magistrate for the same offense. Upon hearing the petition on habeas corpus, the Court held that the dismissal is no bar to another prosecution for the same offense, and remanded the prisoner to the custody of the Sheriff.

By the Court.

1. The order of dismissal of the charge made in the County Court did not operate a bar to another prosecution for the same offense, and would not have so operated, even if the case had not been subsequently resubmitted by that court to the Grand Jury—for the offense with which the prisoner is charged is not a mere misdemeanor, but a felony. Penal Code, § 1387.

2. No bar to another prosecution having occurred, and the prisoner being at large without bail, in consequence of the order of the County Court discharging him from custody, it was competent for any committing magistrate of the proper county to examine the charge made against him, and if, upon such examination, he appeared to be guilty, to hold him to answer. As observed already, the dismissal of the charge in the County Court did not bar another prosecution for the alleged offense; and although it be true, as claimed by the counsel for the prisoner, that the preliminary examination of the prisoner before a committing magistrate is not "prosecution " in a strict sense, and within the express definition of the Penal Code, it is nevertheless a proceeding ancillary and looking to a prosecution, and without which a prosecution would ordinarily be utterly ineffectual to subserve the ends of justice.

The prisoner must, therefore, be remanded to the custody of the Sheriff of the county of San Joaquin, and it is so ordered.

United States Supreme Court.

MCHENRY ET AL., PLAINTIFFS IN ERROR, vs. LA SOCIETE FRANCAISE.

JURISDICTION OF STATE COURTS AS TO MORTGAGE MADE BY BANKRUPT.

The creditor of a bankrupt whose debt was secured by mortgage proved the same against the estate. HELD, that the jurisdiction of the State courts for the purpose of foreclosing the mortgage was not, as to the bankrupt and his wife, divested by the bankruptcy proceedings, but the creditor might foreclose in such courts with the leave of the bankruptcy court and the consent of the assignee.

In error to the Supreme Court of the State of California. The action was brought by La Societe Francaise, D'Epargnes et de Prevoyance Mutuelle, against John McHenry and wife, and others. The necessary facts appear in the opinion. The judgment below was in favor of plaintiff.

Mr. Chief-Justice WAITE delivered the opinion of the court.

In Claflin vs. Houseman, 93 U. S. 130, we decided that, under the law as it stood previous to the adoption of the Revised Statutes, the courts of the United States did not have exclusive jurisdiction of suits for the settlement of conflicting claims to property belonging to the estate of a bankrupt, and that an assignee in bankruptcy might sue in a State court to collect the assets. In Mays vs. Fritton, 20 Wall. 414, we also held that if an assignee in bankruptcy submitted himself to the jurisdiction of a State court in a suit affecting the estate which was pending when the proceedings in bankruptcy were commenced, he was bound by any judgment that might be rendered. And in Eyster vs. Gaff, 91 U. S. 525, Mr. Justice Miller, speaking for the court, said: "The debtor of a bankrupt, or the man who contests the right to real or personal property with him, loses none of his rights by the bankruptcy of his adversary. The same

courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions. If it has for certain classes of actions conferred jurisdiction for the benefit of the assignee in the Circuit and District courts of the United States, it is concurrent and does not divest that of the State courts."

The principles upon which those cases rest are decisive of this. The complainant, having a debt against the bankrupt secured by mortgage, proved the claim against the estate. This, under section 20 of the bankrupt law (14 Stat. 526; Rev. Stat., § 5075), admitted the complainant, as a creditor of the general estate only for the balance of the debt after deducting the value of the mortgaged property, to be ascertained by agreement, sale, or in such other manner as the bankrupt court might direct. The assignee is not required to take measures for the sale of mortgaged property unless its value is greater than the incumbrance. His duties relate chiefly to unsecured creditors, and he need not trouble himself about incumbered property, unless something may be realized out of it on their account, or unless it becomes necessary to do so in order to ascertain the rights of the secured creditor in the general estate. If he does, and it becomes necessary to adjust the liens before his sale, he may, under the ruling in Claflin vs. Houseman, institute the necessary proceedings for that purpose in the courts of the United States, or of the State, as he chooses. If he does not, and the secured creditor wishes to make his security available, the creditor must act, and, having obtained leave of the bankrupt court to bring his action for that purpose, he may proceed in the State court, if the assignee does not object, or in the courts of the United States, at his election. Here the necessary leave to sue was obtained before the decree was rendered, and the assignee, instead of objecting to the jurisdiction of the State court, consented to that mode of proceeding. The bankrupt and his wife alone objected, but as to them, as we held in Eyster vs. Gaff, the jurisdiction of the State court was not divested by the proceedings in bankruptcy.

The judgment is affirmed.

PHOENIX INSURANCE COMPANY vs. PECHNER.

REMOVAL OF CAUSES FROM STATE TO FEDERAL COURT.

A petition for the removal of a cause from a State to the Federal Court, under the Act of 1789, must expressly state that the parties were citizens of the respective States at the time the suit was commenced.

In error to the Court of Appeals of New York. The decision of the Court of Appeals is reported 65 N. Y. 195.

Mr. Chief-Justice WAITE delivered the opinion of the Court.

On the 1st of June, 1867, Pechner, the defendant in error, sued the Phoenix Insurance Company, plaintiff in error, a Connecticut corporation, in the Supreme Court of Chemung County, in the State of New York, upon a policy of insurance. On the 8th of July, in the same year, and at the time of entering its appearance, the company presented to the court a petition, accompanied by the nec

66

essary security, for the removal of the cause to the Circuit Court of the United States. The petition, when taken in connection with the pleadings, set forth sufficiently the citizenship of the defendant in the State of Connecticut, but, as to the citizenship of the plaintiff, the statement was that, as your petitioner is informed and believes, Isidor Pechner, the plaintiff in said action, is a citizen of the State of New York." The petition bears date June 11, 1867, and was sworn to June 12. Upon its presentation the court approved the security, but denied the application for removal.

On the 5th of June, 1869, the plaintiff filed an amended complaint, to which the defendant answered June 21, 1869. On the 2d of February, 1872, the cause coming on for trial, the defendant again presented its original petition for removal, which remained upon the files, and requested the court to proceed no further with the trial, but this request was denied, for the reason that the petition did not state facts sufficient to remove the cause. A jury was thereupon called, which returned a verdict in favor of the plaintiff, and judgment was in due form entered thereon against the defendant. The case was then taken to the Court of Appeals, where the judgment of the Supreme Court was affirmed, the Court of Appeals deciding that the petition for removal was not sufficient in law to effect a transfer of the cause, for the reason that it did not state affirmatively that Pechner was a citizen of the State of New York when the suit was commenced.

To reverse this judgment the present writ of error has been brought, and the only error assigned is predicated upon this decision.

The application for removal in this case was made under section 12 of the Judiciary Act of 1789. (1 Stat. 79.) That section, so far as it is important for the determination of this case, reads as follows: "If a suit be commenced in any State Court * by a citizen of the State in which the suit is brought and the defendant shall, at the

* *

against a citizen of another State,

*

* *

*

*

*

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it shall then

*

time of entering his appearance in such State Court, file a petition for the removal of the cause for trial into the next Circuit Court, be the duty of the State Court to proceed no further in the cause. Clearly this has reference to the citizenship of the parties when the suit is begun, for the language is, "if a suit be commenced by a citizen of the State in which the suit is brought against a citizen of another State, the defendant may, when he enters his appearance, petition for its removal." The phraseology employed in the Acts of 1866 (14 Stat. 307), 1867 (id. 558), and 1875 (18 Stat. 470), and in the Revised Statutes (§ 639), is somewhat different, and we are not now called upon to give a construction to the language there used. As to the Act of 1789, we entertain no doubt in this particular.

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 a 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 can not "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.

It remains only to apply this rule to the facts as they appear in this record.

This suit was commenced June 1, 1867. At that time there was nothing in the pleading or process to indicate the citizenship of the plaintiff. The defendant, in its petition for removal, bearing date June 11, simply stated that the plaintiff is that is to say, was at that date-a citizen of New York. This certainly is not stating affirmatively that such was his citizenship when the suit was commenced. The court had the right to take the case as made by the party himself, and not to inquire further. If that was not sufficient to oust the jurisdiction, there was no reason why the court might not proceed with the We think, therefore, that the Court of Appeals did not err in its decision, and the judgment is consequently affirmed.—The Albany Law Journal.

cause.

AMORY vs. AMORY.

A State Court is not bound to surrender its jurisdiction upon a petition for its removal until at least a petition is filed which upon its face shows the right of the petitioner to transfer it. Under the Act of 1867 a petition for removal must state the personal citizenship of the parties, and not their official citizenship.

In error to the Superior Court of the city of New York.

Mr. Chief-Justice WAITE delivered the opinion of the court.

These cases are substantially disposed of by the decision in Phoenix Insurance Co. vs. Pechner, just announced. They each present the question of the sufficiency of a petition for removal under the Act of 1867. (14 Stat. 558.) The suits were in New York by the defendants in error as executors, against the plaintiff in error, a citizen of New Jersey. The petitions for removal set forth sufficiently the citizenship of the plaintiff in error, but, as to the defendants in error, the allegations are "that said plaintiffs, as such executors, are citizens of the State of New York." Clearly this is not sufficient. Where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, it has reference to the parties as persons. A petition must, therefore, state the personal citizenship of the parties, and not their official citizenship, if there can be such a thing. From the language here employed, the court may properly infer that, as persons, the plaintiffs in error were not citizens of New York. For all that appears they may have been citizens of New Jersey, as was the defendant. Holding, as we do, that a State 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. We need not, therefore, consider whether the Act of 1867 limits the right of removal to the citizenship of the parties at the time of the commencement of the suit, or whether the State court had the right to call upon the defendants in error to show cause against

the application.

The judgment of the Court of Appeals in each of these cases is affirmed.The Albany Law Journal.