NOTES OF CURRENT DECISIONS
UNITED STATES SUPREME COURT.
Removal of Cause. HYDE 'V. RUBLE, 3 Morr. Trans. 516. This was a suit begun by Ruble & Green on the sixth of March, 1880, in a state court of Minnesota, against the plaintiffs in error, who were defendants below, upon an alleged contract of bailment made by all the defendants as partners. The amount involved was a little more than $500. The plaintiffs were both cit.izens of Minnesota. One of the defendants was a citizen of Minnesota, but the others were citizens of Wisconsin and Iowa, and the business of the alleged partnership was carried o,n in Minnesota. After answers were filed, all the defendants filed in the state court a petition for the removal of the suit to the circuit court of the United States for the district of Minnesota, on the ground of the citizenship of the parties. At the next term of the circuit court the cause was remanded to the state court. Another petition was filed by all the defendants who were not citizens of Minnesota for a removal of the suit as to themselves, on the ground that there could be a final determination of the controversy, so far as it concerned them, without the presence of the defendant, 'who was a citizen of the state, as a party. Whereupon the state court, under the second clause of section 639 of the Uevised Statutes, ordered a removal, so far as concerned the petitioning defendants, leaving the suit to proceed in that court as to the other defendant. When the case was docketed in the circuit court, under this second removal, it was again remanded. To reverse these 'several orders of the circuit court this writ of error was brought. The decision of the supreme court was rendered January, 1882, by Mr. Chief Justice Waite. Where an action is brought in a state court by citizens of that state against several defendants alleged to be copartners, only one of whom is a citizen of such state, while the others are citizens of other states, the right of removal as to the subject-matter of the suit does not attach to the defendants who are non-residents, under the first clause of the second section of the act of 1875, because all the parties on one side of the controversy are not citizens of different states from all the parties on the other. can it be removed under the second clause of the same section on the ground that there was in the action a separate controversy wholly between citizens of different states, notwithstanding separate answers were filed denying the exiqt(445)
ence of the partnership, and any contract between themselves and the plaintiffs. To entitle a party to removal under this clause there must exist in the suit a separate and distinct canse of action,in respect to which all the necessary parties on one side are citizens of different states from those on another. Nor is it removable under the act of 1866, (Rev. St. § 639, c1. 2,) because this was repealed by the act of 1875. The cases cited in the opinion were: The Removal Cases, 100 U. S. 457; Blake v. :McKim, 103 U. S. 336; Barney v. Latham, Id.205. NOTE. :And see, as to repeal of the act of 1866, Clark v. Chicago,M.& St. P. R. Co. anro, 355i Sweet" ·:Adm'r v. Chicago, M. & St. P. R. CO. rd.; Wormser v.Dahlman, 16 Blatchf. 319; Railroad Co. v. Mis. slsslppi, 102 U. S. 141; McLean v. Chicago, M. & St. P. R. Co. Id. 309; Girardy v. Moore, a Woods, 397; Osgood v. Chicago, etc., R. Co. 6 Biss. 330; Chicago v. Gage, Id. 467; Carraher v. Brennan, 7Bl.s. 497; Arapahoe Co. v. Kansas & P. R. Co.4 Dill. 277; Burch v. Davenport, etc., R. Co. 46 Iowa, 449; Wormser v. Kline, 67 How. Pro 2S6; New Jersey Zinc Co. v. Trotter, 23 Int. Rev. Rec. 410; Ex parte Grim. baJJ, 8 Cent. L. J. 151; Cook v. Ford, 4Cent. L. J. 560.
BENNECKE v. CONNECTIOUT MUT. LIFE INS. Co. 14 ChI. Leg. News, 267 A suit on a policy of life insurance was commenced in the circuit court of McLean county on the eighteenth day of April, 1878, by a declaration on the policy of the insurance. Defendant filed a plea of the general issue only. On the petition of the defendant the case was transferred to the circuit court of the United States for the southern: district of Illinois. It was admitted by the insurance company that there was no other defence in the case than what arose from the forfeiture of the policy by reason of the fact that Bennecke had gone south of the thirty-second parallel of latitude, between the first of July and the first of November, without the consent of the company previously given in writing; and on the facts of the case it occurred as a question whether the forfeiture had been waived by the company, on which question the jUdges were opposed, and the presiding judge being of opinion that the forfeiture had not been waived, judgment was entered for the defendant. Whereupon, and on motion of the defendant, by its counsel, it was ordered that the state of the pleadings, and the facts found, and the qU,estion on which the judges differed, be certified ac.cording to the request of the defendant, and the law in that case made and provided, to this court to be finally decided. The cause has accordingly been brought to this court by certificate of division of opinion and writ of error, and decided at the October term, 1881, Mr. Justice Woods delivering the opinion of the court affirming the judgment of the circuit court to the effect: A waiver of a stipulation in an agreement, to be effectual, must not only be made intentionally, but with knowledge of the circumstances. So, where neither the agents of the company nor the company itself knew that the party named in the policy was dead at the time of the application for a permit to travel and live in districts prohibited by the policy, it is not a waiver of the forfeiture for so doing without permission of the company. Further, that the ratification of an act of an agent, previously unauthorized, to bind the principal, must be with a full knowledge of all the material facts. The cases cited in the opinion were: OWings v. Hull, 9 Pet. 607; Diehl v,