it, I would not say that such extention would have the effect, without some act on his part to lessen the extent of his exemption. Without some act on his part converting his farm, or his forty acres more or less, used for agricultural purposes, into town lots, it would seem, to say the least, inequitable to say that a half acre instead of forty should be the limits of his homestead. If, however, he voluntarily selects his homestead within the corporate limits of a city or town, he must take what the law gives him." Railway Negligence - Stepping from Train while in Motion-Injury to Person not a Passenger. DOSS v. MISSOURI, KANSAS & TEXAS RAILWAY CO.* Supreme Court of Missouri, January Term, 1875. 1. Railroad Companies-Liable in Punitive Damages, when.-A railroad company is not liable in exemplary or punitive damages except where the acts of its agents, which brought about the injuries, are wanton or malicious. 2. Railroads—Stepping from Train while in Motion - When Negligence shown by. Whether an attempt to step from a train when in motion is, under the particular circumstances of a given case, such negligence as will relieve the company of responsibility, is a question of fact for the jury. 3. Railroads-Injuries to Person not a Passenger acting as Escort-Measure of Care required of the Company.-The agents of railroad companies are liable for injuries caused by the want of ordinary care, where the person injured was at the train to meet with, or part from, a passenger, although not himself a passenger or employee. And in a case where plaintiff had in charge a lady and her infant child, held, that he was entitled to have sufficient time to escort her to a seat and then to leave the train. If the time of stopping was too short, or if the agent of the road failed to give the usual notice of the starting of the train, there was not an exercise of such ordinary care as the company was bound to employ in order to escape liability. I. A lady with an infant child, and especially in the night-time, has the right to be conducted on the cars, even by a person who is not a passenger. And the company is responsible for injuries Farwell v. Boston & N. R. R. Co., 4 Met. 55, 56; S. P. Phil. & done him in the premises through the negligence of its agents. Reading R. R. Co. v. Derby, 14 How. 468; 45 Mo. 255; 46 Mo. 353. II. The questions of fact whether plaintiff was on the cars under such conditions as gave him a right to be there, and whether plaintiff was injured by the gross negligence of defendant's servants, and whether plaintiff was guilty of contributory negligence, were all fairly left to the jury and there is no legal ground for disturbing their verdict. 50 Mo. 461; 37 Mo. 240; 26 Mo. 441; 45 Mo. 255; 46 Mo. 353. NAPTON, J., delivered the opinion of the court. This action was to recover damages for an injury sustained by plaintiff in stepping down from one of defendant's cars to the platform connected with the station house. The petition states that defendant, as a common carrier, was bound to provide suitable means of ingress and egress in and from their cars, and suitable platforms, from which passengers could pass into said cars, so that passengers could pass with safety into the cars, and more especially into the car provided for female passengers; and that it was their duty to stop said car, so set apart for female passengers, at such platform, so that female passengers could pass into and out of said car with safety. The petition then alleges that on the 10th of May, 1872, the plaintiff was attending his sister-in-law, with her infant child, to the depot at Nevada, with a view to place them in the ladies' car; that the train stopped in the night-time, and the employees of desaid platform, as they were in duty bound to do, but allowed said fendant grossly neglected to stop the ladies' car of said train, at car to be stopped at a place distant from said platform. And in consequence of said negligence, it became necessary for the lady and her child who were under plaintiff's charge, to pass through a Appeal from the Vernon County Circuit Court. The facts are number of other cars of said train, which were dark and unlighted, fully set out in the opinion. Philips & Vest, for Appellant. I. Respondent was not a passenger, nor is it averred that he entered the appellant's cars under any contract with or by permission of appellant, nor that it was necessary for him to have gone on the train. Hence the petition is bad. Lucas Adm'r v. Taunton & N. R. R. Co., 6 Gray, 64, 66. II. Appellant was under no obligation to give him signals of starting. Neither the custom of the railroads nor the courts have ever given these signals any such office. Lucas, Adm'r v. T. & N. R. R. Co., 6 Gray. 67. III. Respondent's own negligence contributed to his alleged injury, as he attempted to leave the train while in motion, and as proof of the velocity of its motion, it is shown that he was flung by its force on the platform. It needs no citation of authorities to show that in such cases, toward a person not a passenger, the carrier was under no obligation to exercise any extraordinary care, but the least incautiousness on his part was most culpable. Barb. S. C., 368; 18 N. Y., 422, 425-6. 18 IV. This was no case for punitory damages. If the injury to the person be committed unintentionally, and result simply from want of care, as in this case, the damages awarded should be compensatory. Exemplary damages in such actions can only be given where the act complained of was willful and intentional. | Goetz v. Ambs, 27 Mo. 28, 33; McKeon v. Citizens' R. R. Co., 42 Mo. 80; Franz v. Hilterbrand, 45 Mo. 121; 2 Greenl. Ev., ?? 250, 253, title Damages. Waldo P. Johnson, for respondent. *For the report of this case we are indebted to proof sheets of the 59th Missouri Reports, furnished by the courtesy of the publisher, W. J. Gilbert, Esq., of Saint Louis, so that by the time the plaintiff, with the lady and child, reached the door of the ladies' car, the train started, without giving any signal, and persons on the train desiring to leave could not do so with safety. It is averred that any female passenger has a right to be conducted into the car, where she is to be conveyed, and therefore plaintiff, having been requested in this instance by the female passenger to escort her, had a right to be in said car at the time aforesaid, and a right to be duly notified by signal or otherwise, of the time of starting said train, so that he could pass therefrom with safety. Nevertheless, it is further averred, the agents of defendant, with gross negligence, started the train without giving any such signal or other notice, and the plaintiff, without any negligence on his part, in attempting at the time the train started, to pass from it to the platform, was, in consequence of the sudden and rapid motion of the cars, thrown suddenly and violently against and upon said platform, and received great bodly harm, etc. The answer denies all the material allegations of the petition. The testimony was to the effect, that the plaintiff, who lived at Nevada, which was near a station on the defendant's road, accompanied his sister-in-law to the station, with a view to see her and her child safely on the cars, on the night of the 15th of May, 1872; that the train was behind time by half an hour or more; that on its arrival, the plaintiff, who was on the platform with the lady under his charge, discovered that the ladies' car did not get within ten feet of the platform, and therefore conducted the lady and child to an opening which led to the car immediately behind the baggage or express car, and passed through that car, and perhaps another, until he reached the car next to the sleeping-car; that as soon as the lady was seated, he turned back, and, without having observed that the train was in motion, attempted to get out on the doing, but was injured in leaving the cars while they were in moplatform, and was thrown or fell upon it and injured. tion, will not entitle him to recover." The evidence in regard to the length of time the train stopped, and as to any signal being given before starting, either by the usual proclamation from the conductor of "all aboard," or by ringing of the bell, was conflicting. The time the train was stopped was, according to all the witnesses, however, between two and five minutes, and the conductor stated that after his cry of" all aboard," he waved his lantern to the engineer as a signal to move. The customary delay at the station of the express train was, according to the statements of the officers, about two and a half minutes. To the action of the court in refusing those instructions, the defendant duly excepted. The court of its own motion gave the following instructions: "That if the jury believe from the evidence, that plaintiff was not a passenger on defendant's cars at the time of the alleged injury, it devolves on plaintiff to prove that he was on the cars by authority of some person connected therewith, or that it became necessary for him to go upon said cars, and plaintiff can not recover, unless they should believe from the evidence, that it was necessary for him to go on the cars to seat his sister-in-law The court, at the request of the plaintiff, instructed the jury as and child, and the jury are to consider all the circumstances of follows: I. "The court instructs the jury, on the part of plaintiff, that it was the duty of the railroad company, as a common carrier of passengers, by its agents and employees, to have so stopped the passenger cars at the platform, at the depot, as to have made it safe for ingress and egress of passengers going to and from the same; and also to stop the cars for a sufficient length of time to get on and off the cars with safety, and before starting to have given a signal of starting, for such reasonable length of time as to have enabled passengers to get on with safety, and persons to get off with safety, and if the jury believe from the evidence that the plaintiff, as the conductor of his sister-in-law and her infant child, who were taking passage on said cars, put said sister and child as soon as he could, after the train stopped, on the cars, and immediately left and attempted to pass from the cars to the platform, and that the cars were started without giving reasonable length of time to get off, and without giving the usual signal of starting, and that in consequence of such negligence on the part of the employees of the company, the plaintiff was injured in getting from said cars, the jury will find a verdict for the plaintiff, and assess the damages at such amount as they may believe from the dence that the piaintiff has sustained, not to exceed $10,000." 2. "The court instructs the jury, on the part of the plaintiff, that if they find for the plaintiff, they are not confined to the actual damages sustained by the plaintiff, but may take into consideration all the circumstances and facts detailed in evidence, and may give exemplary or punitive damages in such reasonable amount, above the actual damages sustained, as they believe the evidence warrants. the case as to whether it was necessary or not for plaintiff to go on the cars." The defendant duly objected and excepted to the giving of all the above instructions. The verdict was for plaintiff and the damages assessed at $1,600. Motions for new trial and in arrest were made, which were overruled, and the case is brought here by appeal. The decision of this case depends entirely upon the propriety of the instructions given to the jury, and it is obvious that the judgment must be reversed on account of the second instruction given for the plaintiff on the subject of punitive or vindictive damages. We have decided that such damages may be warranted against a corporation as well as against an individual, where the circumstances of the case authorize them. Perkins v. M. K. & T. R. R. Co., 55 Mo. 214. Therefore, where the agents of a corporation act wantonly or maliciously, the corporation may be held to answer in exemplary damages. But there was no evidence in this case tending to prove any intentional wrong to plaintiff; in fact it appears affirmatively that the conductor was not aware that the plaintiff was on the train, nor so far as the evidence of the plaintiff himevi-self shows, was the conduct of any of the officers or agents of the defendant in anywise influenced by any knowledge of the plaintiff's situation or of his wish to get off the train. An instruction, therefore, on the subject of punitive damages, was a mere abstraction; but perhaps not a harmless one, since the jury might well infer that the court in giving such an instruction, was of opinion that there was some evidence in the case to justify it. 3. "If plaintiff used due diligence in getting from the car, and if the train was prematurely started without due and reasonable notice of such starting, and if the plaintiff was not conscious of the starting of such train when he attempted to step from the cars to the platform, then plaintiff is not the less entitled to recover on account of the time and manner of his stepping from the car. The court refused the following instructions asked by defend ant. 1. "If the jury believe from the evidence, that plaintiff was not a passenger on defendant's cars, it was not necessary for him to be notified of the time of the departure of the cars." 2. "That the defendant is not bound to use the same degree of care in regard to the plaintiff, a stranger who voluntarily went upon its cars for the purpose of seeing his sister safely started, that it is to passengers." 3. "That if the jury believe from the evidence, that the plaintiff voluntarily went upon defendant's cars, without the intention of becoming a passenger, and voluntarily left defendant's cars, and was injured while voluntarily leaving said cars, while they were in motion, he can not recover." 4. That if the jury believe from the evidence, that plaintiff was not a passenger on defendant's cars at the time of the alleged injury, then it devolves upon him to prove that he was on said cars by authority of some person connected therewith, or that it became necessary for him to go upon defendant's cars at that time, before he can reAnd the mere fact that he went upon the cars for the purpose of seeing his sister seated, without proving the necesity of so cover. The first instruction presents questions of more difficulty, upon which there has been no uniformity of opinion in such adjudged cases as we have been able to find. It is clear that the same degree of care on the part of a railroad company exacted by the law in regard to passengers, is not required of them in regard to persons who are not passengers. In the latter case, nothing more is required than ordinary diligence. And whether there is a want of ordinary care in a particular case, depends so much on its attendant circumstances that a definite rule becomes difficult, if not impossible. The points of negligence averred and insisted on here are: Ist. The failure of the officers to put the passenger cars in connection with the platform, so that passengers could pass into and from them directly to and from the platform; 2nd. The failure to give notice, by signal or otherwise, to plaintiff, of the starting of the train; 3rd. The failure to stop the cars for a sufficient length of time to enable the plaintiff to get on and off the car. It is intimated, and perhaps decided, in some adjudged cases, that a person occupying the position of the plaintiff, is in the position of a mere trespasser, on an implied license, and therefore, although the law requires of railroad companies, as common carriers of passengers, great exactness and care in regulating the departure of trains, and in the giving notice to passengers of such departure, yet such care is not required in relation to persons who are not passengers, or not upon the premises at the instance or request of the company. And it was accordingly held in the case of Lucas Admr. v. T. & N. R. R. Co., 6 Gray, 64, that " the rules and regulations presented by a railroad company in relation to the departure of trains and for giving notice to passengers, do not extend to persons who are not passengers, with or without compensation, or who are on the premises without request or instance of the company, and therefore the omission to comply with such regulation is no ground of complaint by one who is not a passenger, if under the circumstances, the company used ordinary care;" and further," that the law has not imposed upon the railroad company the duty of giving special notice of the train to leave, to persons who are not passengers, with or without compensation, or who are not there at the instance of the company; nor of prescribing by rules a system or method for giving such notice to such persons." "Persons entering the cars who are not passengers, and without the request or instance of the company, are bound to know the time of departure (if such time be fixed, and reasonable public notice given thereof), and to leave the cars in such season before the time so fixed, as would enable them to get off with care before the cars are set in motion. With the arrival of the time fixed for the departure of the cars, the implied license or permission ceased, and with it the liability of the defendant, except in cases of misfeasance or gross negligence." This was said in a case where a lady had conducted and assisted into the cars her aunt who was aged and infirm, and affected by disease of the heart, and unable to enter the cars without assistance, and upon leaving and attempting to step on the platform after the cars had commenced moving,was precipitated under the wheels, and her arm and leg sev-. ered from her body. The court held she had no cause of action, upon the ground that she was on the cars merely by license or permission, and because in such cases she attempted to leave the cars after they were put in motion. Whether the usual signals for leaving had been given or not, was treated as an enquiry of no importance, on the ground that the lady (plaintiff) was where she had no right to be-that was, on the steps of the car. We should be very reluctant to hold, that an aged or infirm mother, or sister or wife, or indeed any other woman, especially if incumbered with an infant child, should not be allowed the assistance of a male friend or relative in getting a seat upon a railroad car, and that such friend or relative was to be treated as a mere stranger to the company, having no claim upon the company for an injury under any circumstances. Not being a passenger, it is conceded that no extraordinary care was required; but whether the neglect of customary signals would not amount to ordinary negligence, is a matter upon which the Massachusetts de cision is not satisfactory. The doctrine of the Supreme Court of Pennsylvania in Gillis v. The Pa. R. R. Co. (8 Am. L. Reg. N. S. 729, decided in 1869), seems more consonant with justice. In that case, a platform connected with the depot at Johnstown extended over a canal, or a chasm once used as a canal, and on the occasion of President Johnson's arrival in the cars, a multitude of people gathered on this platform to hear the President's speech, and the timbers which supported it gave way, and a number of persons were precipitated into a chasm, some of whom were killed, and others seriously injured. The court held, however, that the company owning the road was not responsible to the persons injured, who came through curiosity and had no business with the road; but as to persons who came on the platform to meet or part with passengers, the court held the company bound to have the structure strong enough to bear all who could stand upon it. The judge observed: "Had it been the hour for the arrival or departure of a train, and he (the plaintiff) had gone there to welcome a coming or speed a parting guest, it might very well be contended that he was there by authority of the defendants, as much as if he was actually a passenger, and it would then matter not how unusual might have been the crowd, the defendants would have been responsible. As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity, or to give vent to his patriotic feelings. The defendant had nothing to do with that." This seems the more reasonable doctrine, and is sactioned by the recent English cases of Gautrel, Adm'r v. Egerton, Law Rep. 2 C. P. 371; Holmes v. N. E. R. Co., Law Rep. 4 Exch. 254. And if a person who visits a railroad train to welcome a coming guest, or speed a parting one, is held to have claims on the railroad company for ordinary care, surely one who attends a female passenger, incumbered with an infant and a satchel, is entitled to hold the company to equal responsibility. The first part of instruction number one, given for the plaintiff in regard to the duties of defendant in relation to its passengers, though abstractly correct, was outside of the case on trial. That instruction declared that "it was the duty of the railroad company, as a common carrier of passengers by its agents and employees, to have so stopped the passenger cars at the platform of the depot, as to have made it safe for ingress and egress of passengers into and from the same." This is true; but the plaintiff was not a passenger, and no injury happened to the lady who was a passenger, by reason of the failure of all the passenger cars to be placed within reach of the platform. But the plaintiff was entitled to have sufficient time to escort the lady under his charge to her seat, and then leave the cars. If the time was not enough, or if the defendant's agents failed to give notice of the starting of the train by the usual signals, of an oral cry of "all aboard" from the conductor, and the ringing of the bell by the engineer, it was not such ordinary care as the defendant, was bound to exercise, both towards passengers and persons in the situation of plaintiff. And these questions of fact were therefore properly submitted to the jury by the court. Whether the attempt of plaintiff to step from the cars when the train was in motion, was, under the circumstances of the case, such negligence as would relieve the defendant of all responsibility for accident, is a question of fact for the jury, as this court held in the case of Wyatt v. Citizens R. R. Co., 55 Mo. 485; Karle v. K. C., St. Jo. & B. R. R., Id. 476; Loyd v. Han. & St. Joe. R. R. Co., 53 Mo. 509; Burham v. St. Louis, I. M. R. R., 56 Mo. 338. These are risks which the most prudent men will take, and the plaintiff will not be barred of a recovery for his injury, if he adopted the course which most prudent men would take under similar circumstances. For a person to jump from a car, propelled by steam, when it is in rapid motion, may be regarded as mere recklessness; but to step from a car not yet beyond the platform, and whose motion is so slight as to be almost or quite imperceptible, may not be negligence, and whether it is or not, is for the jury to decide from the physical condition of the person, and all the attendant circumstances. A young, healthy and vigorous man may assume risks which would be culpable negligenee in another of feeble health or protracted age. Shearm. and Redf. Neg., Ch. 30; Foy v. Brighton R. R. Co., 18 C. B. N. S. 225; Filer v. N. Y. Central R. R., 49 N. Y. 47. If the first instruction asked by defendant is understood to mean any special notice to plaintiff, it was correct and should have been given. It was the plaintiff's business to make himself acquainted with the usual delay of the train at Nevada, and with the usual signal for the starting of the train, and if that signal was given in time for plaintiff to have left the cars, his delay was at his own risk. It was impossible for the conductor to know that the plaintiff, in going on the cars, did not intend to go as a passenger. He twas therefore entitled to no other notice that such as was given to passengers, to enable them to get on and off the cars. The third and fourth instructions asked by defendant were properly refused. The judgment is reversed and the cause remanded; the other judges concur, Removal of Causes to the Federal Courts nent Domain. -Emi-and that thereupon the exclusive use of such premises shall vest in the railroad company without any further act, deed or conveyANDREW WARREN, JR., v. THE WISCONSIN VALLEY of shall be prima facie evidence of such title in all courts and ance, and further declares that such record or a certified copy there RAILROAD COMPANY. United States Circuit Court, Western District of Wisconsin, Before Hon. JAMES C. HOPKINS, District Judge. A proceeding instituted by a railroad company in a state court to condemn land for its use, may be removed to the federal circuit court, under the acts of Congress applicable to the removal of causes, where the land-owner, who petitions for such removal, is a resident of another state. The facts are stated in the opinion. Wm. F. Vilas for plaintiff; W. C. Silverthorn and P. L. Spooner, for defendant. places. The motion to remand was based upon two grounds: First, that as it was a proceeding by the state in the exercise of its right of eminent domain, the case was to be regarded as substantially against the state, and that this court had no jurisdiction in a suit against a state. This position is correct, if the state is a party. But I do not see how that can be maintained. The state statute above quoted, declares that the railroad company shall be defendant, and that when it pays the amount of damages or compensation awarded by commissioners, or by the court on appeal, the title or use of the land shall vest exclusively in the railroad company. The state has no interest in the controversy. It is not a controHOPKINS, J.-The railway company above named required versy where the state is a party nominally or beneficially. The certain portions of the plaintiff's land for the purpose of its road, state conferred upon the railroad company the right to take what and not agreeing with him upon the damages to be paid therefor, lands it required, but made it liable for all damages and compenhad them appraised by commissioners, according to the provisions sation; and this controversy relates, not to the right of the railroad of the railroad law of this state (chapter 119, general laws of 1872). company or the state to take the lands described, but only to the The company had separate awards for each tract or government amount of compensation the railroad company must pay as a condiscription through which it ran, being six in number. The plain-dition of the taking. It seems very clear to my mind, that this is tiff not being satisfied with the amount awarded by the commis- not a suit prosecuted against a state, within the meaning of the sioners, appealed to the Circuit Court of Marathon County, from constitution, and that, therefore, the first ground of objection is each award, in accordance with the provisions of the act afore- not well-taken. said. After the appeals, the plaintiff being a citizen of the state of Illinois, filed his petition in the state circuit court, stating that he was a citizen of the state of Illinois, and that the railroad company was a citizen of this state, also that the amount in dispute exceeded the sum of $500 in each case, and prayed for the removal of the cases for trial into this court. The state court granted the order and accepted the bond, and copies of the records in each case were filed, and the case duly docketed in this court. The plaintiff now moves to consolidate said cases, which motion is opposed by defendants, on the ground that this court has not jurisdiction; but conceding that if the court has, they should be consolidated. The defendant, in order to present the question directly before the court, moved to remand the causes to the state circuit court, for the reason that this court had not jurisdiction thereof. Section 17 of the state statute aforesaid, provides for an appeal by either party, and declares that upon filing a written notice of appeal in the office of the clerk of the circuit court of the county in which the land is situated, and where the award of the commissioners is required to be filed and recorded, "the appeal shall be considered an action pending in court subject to a change of the place of trial and appeal to the supreme court as other actions, and shall be entered by the clerk upon the records of the court by setting down the owners of the land for which such award was made, and who are parties to the appeal as plaintiffs, and the railroad company as defendants." It further declares that the appeal shall be tried by a jury unless waived, and that costs shall be awarded to the successful party on such appeal, and that judgment shall be rendered thereon, according to the rights of the parties. The award is to be recorded in the judgment-book by the clerk in whose office it is filed. If the award is not paid in sixty days from the filing, or in case of appeal, if the judgment upon the appeal is not paid within sixty days, the plaintiff or party interested may have execution theron. Section 19 provides, that upon the railroad company's paying into court the amount of the award or judgment, or filing in the clerk's office of the court a receipt therefor, duly signed and acknowledged by the owner, the clerk shall make a minute of such payment or filing of such receipt at the foot of the record of the report of the commissioners, in the judgment-book of said court, The second ground relied upon was, that it was not a suit in such a sense as to be removable; that it was a special proceeding, provided for ascertaining the damages, and passing title to the land taken or condemned—especially applicable to proceedings in the state courts, and not adapted to the practice and mode of procedure in this court; and that the rights of the railroad company could not be obtained in the manner provided by the state statute, in this court. If this objection states truly the essential nature of the case, it might be regarded as an answer to the jurisdiction of this court. But does it? It was suggested that the state could have provided for an assessment of damages by a sheriff's jury, and not given to the proceedings any attribute of a suit. Without determining that question either one way or the other, the point to be passed upon here, is, has the state stripped the proceedings of all the characteristics of an action? I think it has not. It is true, the mode of getting the case into the courts is different, but after having provided a way of getting the matter into court, it is then treated as an action. The act says, "the appeal shall be considered as an action pending in court," and from that time it is proceeded with in the same manner as other actions up to, and including judgment and execution. The owner of the land is the plaintiff, and the railroad company, defendant. So it seems to me the state has invested the proceedings, with the dignity and attributes of an action, and the parties are not, therefore, at liberty to say it is not an action. The state has given the parties the plenary advantages of an ordinary suit at law, and the courts have but to see that they enjoy them. But, even if the proceedings in the state courts are different from the usual modes of prosecuting suits for the enforcement of private rights, still it is in effect a suit of a civil nature, in which the controversy is between citizens of different states. The plaintiff is seeking to obtain compensation of the defendants for the land it had taken from him. It involved the question of the value of the land taken by defendants, and the damages of the plaintiff sustained thereby. It is not a new right of action given by the state. The common law gave a remedy by action in such a case, and the state legislature, by changing the mode of proceedings to ascertain the damages of a party whose lands have been taken, cannot change the essential character of the cause of action or right of action. It is still in effect a suit of a civil nature, where a judgment may be rendered, which concludes the parties as in other suits. The status of the parties is, I think, the same as in federal court." To the same effect is the case of Osgood v. The any suit of a civil nature at common law. It was the intention of Congress, under the power conferred by the constitution, to give to suitors having a right to sue in the federal courts, remedies co-extensive with such rights. These remedies can not be abridged or controlled by state legislation by exempting a person or corporation of such state from suit. A citizen of another state, in this respect, possesses a right not pertaining to one of the same state. Suydam v. Broadnax, 14 Peters, 67; Railway Company v. Whitton, 13 Wallace, 270. In this last case it was held that where the state statute gave a new right of action, and limited the prosecution for its recovery to a court established by the state, that the party plaintiff, being a non-resident, was entitled to a removal of the case from the state to the federal courts for trial. The supreme court in that case lays down the doctrine, that "when a general rule as to property, or personal rights or injuries to either is established by state legislation, its enforcement by federal courts in a case between proper parties, is a matter of course, and the jurisdiction of the court in such case is not subject to state limitation." Chicago, D. and V. R. R. Co., 2 CENT. L. J. 275. Applying the doctrine and principles of those decisions to this case, I must overrule the motion to remand the cases to the state court, and hold that this court has jurisdiction thereof. Having held that this court has jurisdiction, I grant the order conceded to be right by defendant's counsel, consolidating said BENJAMIN R. SHELDON, WILLIAM K. MCALLISTER. Associate Justices 1. Estoppel in Pais.-The doctrine of estoppel is that when a person, by his words or conduct, voluntarily causes another to believe in the existence of a certain state of things, and induces him to act upon that belief, so as to change his previous position, he will be estopped to aver against the latter a different state of things. But as I have before said, this plaintiff has a plain right and remedy for his damages in such a case as this at common law; and the supreme court in the Union Bank of Tennessee v. Jolly's Administrators, 18 How. 306, declared that a law of a state "limiting the remedies of its citizens in its own courts, can not be applied to prevent the citizens of other states from suing in the courts of the United States in that state, for the recovery of any property or money thereto, to which they may be legally or equit-party to whom it was made must have been ignorant of the truth of the matter. 4. It ably entitled." 2. Elements of. In order to create such estoppel, the following elements must be present: 1. There must have been a representation concerning material facts. 2. The representation must have been made with a knowledge of the facts. 3. The must have been made with the intention it would be acted upon. 5. And it must have been acted upon. 3. Principal Element is Fraud -The representation must be external to, and not necessarily implied in the transaction itself; and fraud or something tantamount thereto, is the distinctive character of this kind of estoppel. 4. Doctrine of, does not apply to the State.-Public policy, to prevent loss to the state through the negligence of public officers, forbids the application of the doctrine of estoppel to the state, growing out of the conduct and representations of its officers. On the same ground that the government is excused from the consequence officers. Case in Judgment.-Where the auditor, when applied to by the sureties of a collector, gave them, through mistake, an incorrect statement of the collector's account, which prevented them from obtaining indemnity: Held, that such mistaken statement could not estop the state, in a suit upon the collector's bond against such sureties, from recovering the true amount due the state. It may be that the proceedings in this court, in ascertaining and enforcing the parties' rights will be different to some extent, but that does not prevent the removal. The supreme court has repeatedly held that the jurisdiction of the federal courts over controversies between citizens of different states, can not be impaired by the laws of the states which prescribe the modes of redress in their courts. In Hyde v. Stone, 20 Howard's Rep., 175, it is said of laches, it should not be affected by the negligence or even wilfulness of any one of its in many cases, "the forms of the proceeding in these courts (federal courts), have been assimilated to those of the states, either by legislative enactments or by their own rules. But the courts of the United States, are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends. They can not abdicate their authority or duty in any case in favor of another jurisdiction." So that if this court could not assimilate its practice, so as to give to the defendant all the rights it is entitled to, in the mode prescribed by this state statute, it is no answer to its jurisdiction, for it is the duty of this court to afford a sufficient and adequate remedy so as to secure to the defendant the right to which it is entitied, upon paying the judgment finally rendered in the case, and there is no difficulty whatever in determining the remedy to effect that purpose. Payne v. Hook, 7 Wallace, 425. The 12th section of the judiciary act of 1789, gave the right of removal to non-resident defendants. That was not as comprehensive as the constitutional provision on the subject, and Congress has from time to time extended the right, and the act of March 3, 1875, has materially enlarged the right of suitors in respect to removal. Chap. 137, of the laws of 1875; 18 Statutes at Large, page 470. It now embraces citizens of other states whether plaintiff or defendant, and confers an unqualified right to have a case or suit of a civil nature at law or equity transferred on petition of either party to the federal courts for trial, when the parties are citizens of different states, upon complying with the conditions mentioned in the act; and the supreme court decided in Insurance Co. v. Dunn, 19 Wallace, 214, and Ins. Co. v. Morse, 20 Wallace, 445, "that no power of action remained thereafter, (after filing petition) to the state court, and that every question, necessarily including the act of its own jurisdiction, must be decided in the This was an original suit in this court, by the State against Aristus Brown, Clark W. Upton, Moses Evans and Lorenzo Hinkston, as sureties, upon the official bond of Walter W. Hastings, sheriff of Lake county. The case was submitted upon an agreed state of facts. Mr. Justice BREESE delivered the opinion of the court: Formal pleadings were waived by the parties, and a decision sought upon an agreed state of facts, which brings up the question, and it is the only question in the case: Can the mistake of the auditor of the public accounts, in stating the account of the sheriff, by which the defendants were prevented from obtaining indemnity from the sheriff, be pleaded as a defence to this action? The defendants have submitted no argument to sustain their defence. The attorney-general, on behalf of plaintiffs, claims that the fact that defendants were prejudiced by the erroneous and mis*From advance sheets of 66 Illinois Reports, received through the courtesy of Hon. Norman L. Freeman, Reporter. |