Stewart and Cutts v. Mordecai.

justice" contained in Mordecai's affidavit, but the traverse was disallowed. Objections were then taken to the removal, in that Cutts was a necessary party to the determination of rights of parties in the federal court, and that Mordecai was bound by his previous choice of courts. Objections overruled, and orders made removing causes. The case was then brought to this court on errors assigned as above.

Hawkins & Burke, Lyon, De Graffenreid & Irvin, for plaintiffs in error.

Nisbets & Jackson, for defendants, cited: Act of congress, 1866; 4 Abbott's Dig. 76. Act of congress, 1867; 18 How. 467; 4 McLean, 202; 5 id. 342; 6 id. 13; 2 Blatchf. 304; 15 How. 198.

BROWN, C. J. We think there can be no great difficulty about this case. The act of congress of 27th July, 1866 (14 U. S. Stats. at Large, 306), provides, in substance, that if, in any suit already commenced, or that may hereafter be commenced, in any state court, by a citizen of the state in which the suit was brought, against a citizen of another state, the matter in dispute exceeds the sum of $500 exclusive of costs, and if the suit, so far as relates to the defendant who is the citizen of a state other than that in which the suit is brought, is or has been instituted or prosecuted, for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy so far as it concerns him, without the presence of the other defendants as parties in the cause, then, and in every such case, the defendant, who is a citizen of a state other than that in which the suit was brought, may, at any time before the trial or final hearing of the case, file a petition for the removal of the cause, as against him, into the next circuit court of the United States, to be held in the district where the suit is pending, and offer good and sufficient security for his entering in such court, on the first day of its session, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in said cause affecting or concerning him, and also for his then appearing and entering special bail in the case if special bail was originally required therein; and it shall be thereupon the duty of the state court to accept the security and proceed no further in the cause against the

Stewart and Cutts v. Mordecai.

defendant so applying for its removal; and any bail that may have been originally taken shall be discharged, and the said copies being entered as aforesaid in such court of the United States, the cause shall then proceed in the same manner as if it had been brought there by original process against the defendant, who shall have so filed a petition for its removal as above provided. It is also provided that such removal of the cause, as against the defendant petitioning therefor, into the United States court, shall not be deemed to prejudice or take away the right of the plaintiff to proceed at the same time with the suit in the state court as against the other defendants, if he shall desire to do so.

By the act of congress passed 2d March, 1867 (14 U. S. Stats. at Large, 558), it is declared, that, where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, and the matter in dispute exceeds the sum of $500 exclusive of costs, such citizen of another state, whether he be plaintiff or defendant, if he will make and file in such state court an affidavit, stating that he has reason to and does believe, that from prejudice or local influence he will not be able to obtain justice in such state court, may, at any time before the final hearing or trial of the suit, file a petition to such state court for the removal of the suit into the next circuit court of the United States, to be held in the district where the suit is pending; and offer good and sufficient security for his entering in such court, on the first day of its session, copies of all process, pleadings, depositions, testimony, and other proceedings in such suit, and doing such other appropriate acts as by the act to which this act is amendatory (act of July 27, 1866) are required to be done upon. the removal of a suit into the United States court; and it shall be thereupon the duty of the state court to accept the security and proceed no further in the suit; and the said copies being entered as aforesaid in such court of the United States, the suit shall there proceed in the same manner as if it had been brought there by original process; and all the provisions of the act to which this is amendatory respecting any bail, attachment, injunction or other restraining process, and respecting any bond of indemnity, or any obligation given upon the issuing or granting any attachment, injunction, or other restraining process, shall apply with like force

Stewart and Cutts v, Mordecai.

and effect in all respects to similar matters, process or things, in the suit for the removal of which this act provides.

But two points were seriously insisted upon in the argument for the plaintiff in error. First, that Stewart had the right to traverse the affidavit of Mordecai filed in conformity to the above recited acts. Second, that the United States circuit court cannot take jurisdiction of the case, because Cutts, who is a party defendant with Mordecai in the bill, is a citizen of Georgia, and his rights cannot be adjudicated in the circuit court, in the same state in which the complainant in the bill resides.

It is sufficient reply to the first ground to say that the act of congress is plain and imperative. It leaves nothing to construction. When the affidavit is filed and the bond given as required by it, it declares that it shall be the duty of the state court to accept the security and proceed no further in the suit. If a traverse of the affidavit should be allowed, and a trial had upon it, this would be a further proceeding which is forbidden by the act. Besides, the reason of the law is against this view. If the prejudice or local influence does in fact exist, which denies justice to the citizen of the other state, who makes the affidavit, it would operate the same denial of justice, perhaps in a greater degree, on the trial of the Issue formed upon the traverse of the affidavit.

We are equally clear that the other ground cannot be sustained. Here the suit or bill was brought by Stewart against Mordecai, a citizen of South Carolina, who was plaintiff in the common-law proceeding, for the "purpose of restraining and enjoining him." This is one ground for the transfer. Another is, that "there can be a final determination of the controversy, so far as concerns him, in the United States court, without the presence of Cutts." If the claim set up by Stewart, to have the note on which he is a surety credited with the amount of usurious interest paid by Cutts to Mordecai in other transactions, can be sustained at all, it can be sustained as well without the presence of Cutts as a party as if he was present. If the amount should be allowed, and it is sufficient to satisfy the note on which he is surety for Cutts, the verdict must be for him in the state court or the United States court; if not, it could not be for him in either. If it entitles him to a credit, he can get the benefit of it in either court. If he needs the testimony of Cutts, he can have it under the rules of evidence which prevail in either court. Why, then, may not the final determination of the contro

Stewart and Cutts v. Mordecai.

versy, so far as it concerns Mordecai, be reached in the United States courts without the presence of Cutts as a party, and with as much justice to Stewart as if Cutts were a party?

But it is said the right of Cutts cannot be protected in this way. Why not? If Stewart can set up the usury, and defeat the recovery of Mordecai, it will inure to the benefit of Cutts as much as if he were a party. If Stewart shows in the United States court that the debt is paid, and gets judgment accordingly, Cutts is no longer liable upon it, either in the state or federal courts. And if the amount for which Mordecai is liable to Cutts exceeds the amount of the note, so as to entitle Cutts to a judgment, he is not barred from recovering it in a proper proceeding, by the judgment in the United States court in the case between Stewart and Mordecai. The act of congress is explicit, that the removal of the case to the United States court, by the defendant making the application, shall not be deemed to "prejudice or take away the right of the plaintiff to proceed at the same time with the suit in the state court against 'the other defendants, if he shall desire to do so." In other words, the removal of the case as to Mordecai amounts to a severance, and authorizes the litigation to be conducted partly in each court; provided the rights of Mordecai can be determined in the United States court without the presence of Cutts.

Again, if there are rights between Stewart and Cutts to be adjusted, that can be done in the state court as well as if this proceeding as to Mordecai had not been transferred to the federal court Let the judgment of the court below be affirmed.

Sims v. Cox.

SIMS, plaintiff in error, v. Cox.

(40 Ga. 76.)

Contract- — measure of damages.

An agreement to deliver specific articles, to be worth a specified amount, is legally fulfilled by the payment of the money in lieu of the articles.

ACTION on contract. The facts are sufficiently set forth in the opinion.

W. S. Johnson, for plaintiff in error.

Robert Toombs, A. T. Akerman, Mathews & Reid, for defendant.

BROWN, C. J. By the first contract between the parties to this case, Sims agreed to purchase a plantation, with the stock, etc., upon it, from Cox, for one hundred bales of middling cotton, averaging four hundred pounds each, to be delivered at the Lexington depot by the 1st day of February, 1867, and one hundred bales, averaging four hundred pounds each, by the 1st day of February, 1868, or so soon as it could be put in good merchantable style for market, with interest on $10,000, for twelve months, in the currency of the country. And, in case of the first hundred bales, it is said in the written contract, that said Sims guarantees to said Cox an average of $100, in gold, for each bale of said cotton, with the privilege of paying the said Cox $10,000, in specie, or its equivalent, in lieu of the one hundred bales of cotton.

Sims afterward found himself unable to meet his engagements, probably owing to the great fall in cotton, and the parties entered into another contract, by which they agreed to rescind the first contract; and Sims was to return the plantation and stock, or very nearly all of it, to Cox, and was to deliver to Cox eighty bales of cotton, averaging four hundred pounds, and averaging in quality middling-seventy to be delivered at once, and the other ten within the present week. And, in addition to this, Sims also promised, as part of the consideration for the rescission of the contract, to deliver to Cox, at said depot, on or before the 1st day of February, 1869, nearly one year after the date of said second contract, twenty bales