expressed the opinion that a court of equity had the power to consolidate causes, with or without the consent of the complainant, and he ordered three suits of three different wards against the same guardian, after a decree rendered in each case, at the instance of the complainants, to be consolidated for the purpose of taking the accounts, there being a written consent to the consolidation. The chancellor's opinion as to the power of the court was, consequently, a mere dictum. He concedes that, even at law, the mode of consolidation is not by uniting the several actions in one record. Clason v. Church, 1 Johns. Cas. 29. And our Supreme Court has held, that the consolidation of causes, partly by consent and partly by order of the court acquiesced in by the parties, does not change the rules of equity pleading, nor the rights of the parties, and that these rights must still turn on the pleadings, proof and proceedings of their respective suits. Brevard v. Summar, 2 Heisk. 105.

The general rule undoubtedly is, that every suitor shall be at liberty to conduct his suit as he may be advised. The court ought to have no authority to hamper him by tying him on to other parties, compelling him to await their action, or be subject to the delays incident to their judgment, their whim, or their fate, as by death or marriage. There is even less reason for forcing defendants against their wishes into a boat with others; for having been brought into court by one party, they may well say, we prefer to fight it out with that party. Nor is there any particular advantage to be gained by a consolidation in invitum, where each record must, after all, be kept separate and stand or fall on its own merits. Such matters had better be left exclusively to the parties, whose self-interest will dictate a better agreement for both than the court can force upon either. And the matter of costs is always in the discretion of the court, to be used so as to prevent a multiplicity of suits and decrees from proving profitable, where such multiplicity is possible. The less the parties are interfered with by the court in the exercise of their legitimate rights, the better. For it will limit the. appeals to the discretionary intervention of the court, often a dangerous, and always a disagreable duty. It will, moreover, tend to confine litigation within narrower limits, secure simplicity, and prevent confusion. I am of opinion that the court of chancery has no power to interfere with the rights of the parties, in invitum, by an order consolidating independent suits of purely equitable cognizance. And if, in the breaking down of the lines of distinction between law and equity and the blending the jurisdiction of the courts, cases should arise which, in analogy to the rule at law, might be consolidated, the exercise of such power should be declined, except in extreme and clear classes.

REMOVAL OF CAUSES-WAIVER.

MOYNAHAN v. WILSON.

In the Circuit Court of the United States, Eastern District of Michigan, December Term, 1877.

Before HON. H. B. BROWN, District Judge. The act of filing in a state court a petition for the removal of a case to the circuit court of the United States is no waiver of a fraud in procuring service of process. Accordingly, where property was fraudulently decoyed within the jurisdiction of a state court, and seized upon a writ of replevin, and the defendant at once removed the case to a federal court, and moved to set aside the service of the writ, held, the motion did not come too late.

Motion to dismiss suit and for the return of property replevied. This was an action of replevin, commenced in the circuit court for the county of Wayne, on the 7th day of November, A. D. 1877, and removed to this court on the 13th. Upon the same day a certified copy of the record was filed in this court, and a motion made to dismiss the suit upon the ground that the property replevied, viz: the racing mare "Bay Sallie" was decoyed within the jurisdiction of the State court by a fraudulent device or trick of the plaintiff.

L. T. Griffin, for plaintiff; M. E. Crofoot, for defendant.

BROWN, J.:

Most of the statements contained in the affidavits read upon this motion, relate to the merits of the controversy, and therefore have no bearing here. It appears that the plaintiff and one Demass, when in Indianapolis, made a bargain with one Gosnell, the then owner of the mare, to bring her here, with the intention of matching her against a horse known as "Tom Hendricks," and five hundred dollars were deposited in Gosnell's hands, either as security for the safe return of the mare, or as a personal loan from the plaintiff. Gosnell claims that the agreement was to be cancelled if, in the meantime, he could sell the mare, and that he did sell her to Wilson, with the consent of the parties, the money being returned to Demass. On the other hand, it is claimed by the plaintiff that he was to have the use of her for a year, to race her as he liked, and to divide the profits with Gosnell; that he knew nothing of the sale to Wilson, and that Demass received back the $500 after plaintiff had left Indianapolis, and without authority from him. All this is immaterial to the present controversy; so likewise are the affidavits with respect to the value of the mare, and to the propriety of driving her in harness. I am satisfied she is worth more than $500, and consequently that the court has jurisdiction.

On Demass returning to Detroit, plaintiff, find

mare had been sold to Wilson, the defendant, and had passed into his possession, wrote defendant the following letter: "I am very sorry that you took Bay Sallie' away from Demass, as I have made a match against Hendricks to pace next week for $500 a side; the money is up, and, as

John Demass says, you would bring the mare if matched, please ship her at once to Detroit, as there will be a great betting race. Don't fail to send her. If you don't send her, I lose the money that is now up, so don't fail." To Gosnell he wrote a similar letter, adding: "Write or telegraph me when she will be here, as we have not fixed the day to pace until I hear from you." Supposing this statement to be true, defendant at once shipped the mare to Detroit in charge of an ostler, and on arriving here, plaintiff took possession of her, paid for her transportation and sent her to a stable; he then took the advice of counsel, and acting upon such advice, returned her nominally to the possession of defendant, who soon after arrived here himself, then demanded her of him and upon defendant refusing to deliver her up, took out this writ of replevin. It appears from the affidavit of Mr. Greusel, owner of the "Tom Hendricks," that his horse had not been matched against the mare at all, nor had he made any agreement with plaintiff, to pace with the " Bay Sallie," nor had he, or any one for him, to his knowledge, put up any money for such a race. Indeed Moynahan admits that the only foundation for his letter was, that he had had some talk with the owner of "Tom Hendricks" about making a match if he could get his friends to put in with him, and stated that he would see plaintiff again, and that, before seeing Greusel again, he wrote the letters in question, although he says he had been informed by friends of Greusel there would be no trouble in making a match for $500, and "deponent believes that such was the fact, and now expects that he will have no difficulty in making the match." In short, the letters were false from beginning to end, and were evidently intended as a device to get the horse to Detroit. I am satisfied, too, that the subsequent surrender to defendant was solely for the purpose of anticipating a writ of replevin from him, and getting her into his possession under the writ in this case.

It is perfectly well settled, that where a defendant is brought within the process of the court by a trick or device of this kind, the service will be set aside and he will be discharged from custody. The Union Sugar Refinery v. Mathiesson, 2 Cliff. 304; Wells v. Gurney, 8 B. & C., 769; Snelling v. Watrous, 2 Paige, 315; Wilson v. Bacon, 10 Wend. 636; Metcalf v. Clark, 41 Barb. 45; Stein v. Volkenhuysen, E. B. & E. 65; Wilson v. Reed, 5 Dutcher, 385; Carpenter v. Spooner, 2 Sand. 917; Prefner v. Rupert, 28 Iowa, 27. Though these were all actions in personam, where the defendant was himself discharged, I see no reason why the same principle will not apply to a case of replevin where property is fraudulently decoyed within the jurisdiction of the court.

A serious question, however, remains to be considered: Plaintiff insists that filing the petition for removal in the State court was an appearance, and a waiver of any defect in the service of the writ. That the filing of a petition for a removal is an appearance within the meaning of the Judiciary Act of 1789, requiring the petition to be filed "at the time of entering his appearance in the State

court" was decided, I think, correctly, in Sweeny v. Coffin, 1 Dill. 73. A like ruling was made by a majority of the court in the case of Chatham National Bk.v.The Merchants Union Bk.1 Hun 702.

While I have little doubt that filing this petition is a sufficient appearance to answer the requirements of the Judiciary Act, my impression is, it can not be considered a general appearance in the cause. An appearance has been defined to be a submission to the authority of the court in the case, whether coerced or voluntary, or an act importing that the defendant submits the determination of a material question in his case to the judgment of the court. Cooley v. Lawrence, 5 Dreer, 610. It has frequently been held that a motion to dismiss a case for want of jurisdiction is not an appearance, the very act of making the motion, implying that the party does not submit himself to the authority, of the court. Sullivan v. Frazee, 4 Robertson, 616; Decker v. N. Y. Belting and Packing Co., 11 Blatch. 76; Commercial Bank vs. Slocum, 14 Peters, 60; Ulmer v. Hiatt, 4 Greene, 439, 441. And I am strongly inclined to think that filing a petition in the State court, which, according to the better authority, requires no action on the part of that court, and deprives it instantly of its jurisdiction of the case, can not be considered a general appearance in the cause.

But whether this be so or not, I am satisfied that the petition for removal should not be construed as a waiver of fraud in procuring the service of the writ. While it is true that a general appearance is a waiver of irregularity in the writ or its service, none of the authorities go to the extent here claimed. In Chitty's General Practice, vol. 3, 522525, a distinction is taken between mere irregu larities and such defects as render the proceedings a total nullity and altogether void; "for although an irregularity may be waved and must be objected to within a reasonable time, it has been considered to be a general rule that a nullity or essential defect may be taken advantage of at any subsequent stage of the action." In Taylor v. Phillips, 3 East, 155, it was held that service of process on Sunday was absolutely void by statute, and could not be made good by any subsequent waiver of the defendant by his not objecting until after a rule to plead, and to the same effect is Morgan v. Johnson, 1 II. Black. 628. A large number of other cases are cited in Chitty which apparently proceed upon the same ground. While I think the American courts would not go so far in holding that material defects could not be waived, the distinction between irregularities and nullities is noticed and approved in several American cases. In The United States v. Yates, 6 Howard, 605, it was said, that leave to withdraw an appearance will not authorize a motion to dismiss for want of citation, nor for mere irregularity in its service, provided the appeal is in other respects regularly brought up and authorized by law. The citation is merely notice to the party, and his appearance in person or by attorney is an admission of notice on the record, and he can not afterwards withdraw it; but the appearance does not preclude the party

from moving to dismiss for the want of jurisdiction, or any other sufficient ground, except for the one above mentioned. So in Carroll v. Dorsey, 20 How. 204, it was held that a defect in the writ of error, or an omission to file a transcript of the record at the term next succeeding the issuing of the writ, were fatal errors, notwithstanding a general appearance; and the earlier case was cited and affirmed. The court held that the appearance of the defendants without making a motion to dismiss, cured nothing but the defect in the citation. See also Buckingham v. Lean, 13 How. 150. There is undoubtedly a class of cases which hold that, where the State court has acquired jɩisdiction by attachment of property, the defendant, on removal, will not be permitted to claim that the case should be dismissed because the federal court would not have had jurisdiction if the case had been originally commenced there. This was really all that was decided in Sayles vs. The Northwestern Insurance Company, 2 Curtis, 212, though there are sentences in the opinion which seem to conflict with the views here expressed. So in Bushnell v. Kennedy, 9 Wall, 387, it was held that, after removal, defendant could not defeat the action by showing it was not originally cognizable in the Federal court. To the same effect is Barney v. Globe Bank, 5 Blatch. 107. These cases hold, that if the defendant, not being compelled to appear in the state court, does actually appear, and remove the case, he thereby submits to the jurisdiction, and can not raise in this court a defense he could not raise in the state court. But in the case under consideration, the defense was compelled to make a motion somewhere, or lose the benefit of the defense. If he allowed the case to go to judgment, it would be too late; the fraud rendering the service of the writ not void, but voidable. Advantage must undoubtedly be taken of the defect within a reasonable time; but it does not follow that an act which, for some purposes, may be considered an appearance, and, possibly, sufficient to operate as a waiver of previous irregularities, should be considered as confirming a fraud in the service of the writ. It is a general rule, for which numerous cases may be cited, that, in order to confirm a fraud, the party injured must not only do some act manifesting an intention to confirm, but must be aware of the legal consequences of the act. Indeed, there seems to be, in cases of this class, a well settled exception to the general maxim: "Ignorantia legis neminem excusat," Kerr. on Fraud, 296. Murray v. Palmer, 2 Sch. & Lef. 486; Cockerell v. Cholmondeley, I. R. & M. 425; Cumberland Coal Co. v. Sherman, 20 Md. 117; Cherry v. Newsom, 3 Yerg. 369; Stump v. Gary, 2 DeG. M. & G., 623. If this rule be applicable here, and I see no reason why it is not, the case is freed from all doubt. There is not the slightest reason for supposing the defendant intended to waive the fraud by removing the case. Indeed, the promptness with which the removal was effected, and this motion made, precludes the idea, either of an intention to confirm, or a belief that such was the legal effect of his act.

Again: It seems to me in consistent with the general scope and purpose of the removal acts, to compel a party to litigate any portion of this case in a state court, or lose his defense pro tanto. Under the judiciary act, if the defendant had made this motion in the state court, he would thereby have waived his right of removal, since it was necessary to file his petition at the time of his appearance, and while, under the act of 1875, the removal may be made before, or at the term at which the cause could be first tried and before the trial thereof, it is provided in section 6 that, in case of removal, the circuit court shall proceed therein as if the suit had been originally commenced in the federal court.

In Lamar v. Dana, 10 Blatch. 34, a suit was brought in the state court for an arrest made by the defendant, during the rebellion, by authority of the president, and the plaintiff moved to remand on the ground that the jurisdiction of the federal court over the case had been taken away by the act of 1867. It was held that, notwithstanding this act, the parties could raise any question in the federal court, after removal, which they could raise if the cause had been originally commenced here. And it was said by Judge Woodruff; "The removal places the case in the same position as if so (originally) brought. This operates in this case as in all other cases so removed. Had the cause been brought here in the first instance, all legal defenses would have been available to the defendant, whether they went to jurisdiction, to inquire, or were in bar of the action on any ground. All that the removal has done is to change the tribunal, which is to pass upon the question involved." See also Gier v. Gray, 4 McLean, 202; McLoud v. Duncan, 5 McLean, 242.

There is no doubt that this motion might have been made in the state court, and that the decision of the state court thereon would have been res adjudicata; but I think the defendant is not compelled to set up his defense in this way. There is no reason to suppose that the removal acts were not aimed at the possible partiality of local judges as well as local influence upon juries, and any construction which would deprive litigants of a judicial interpretation of the law in this court, as well as a determination of the facts involved, would, to that extent, defeat the intention of congress. The power of removal is not limited to those cases where only questions of fact are involved, and this court would clearly not be called upon to remand if the sole question in the case were one of law.

Without deciding how far a petition for removal is an appearance, or how far a general appearance would operate as a waiver of a fraud in service of a process, it is sufficient here to say that I do not think the petition for removal is a waiver of the right of the defendant to insist that the service of the process was produced by a fraudulent device or trick.

But I think the plaintiff has made his motion too broad, in asking that the writ itself be set aside and vacated. Service of the writ must be set aside, and the plaintiff ordered to return the prop

1. AN OFFER TO SELL, BY A WRITTEN PROPOSITION, MAY BE WITHDRAWN at any time before it is fully accepted by all those to whom it is made.

2. THE ERASURE OF THE NAME OF ONE OF SIX ACCEPTORS OF A WRITTEN PROPOSITION, by himself, without the consent of the other parties thereto, did not affect the validity of the contract or cancel his liability.

3. DEPENDENT CONTRACTS-WHEN ENFORCED AND WHEN NOT ENFORCEABLE.- A contract, whereby B. agreed to exchange real estate with S. for stock in a corporation which S. and B. and five others had agreed to organize, was dependent upon the execution of the contract to organize the corporation. If the corporation was not organized, without the fault of S. or B., a specific execution of the contract between them could not be enforced, nor would either be liable in damages to the other for non-compliance. But as S. is held to be in the attitude of having defeated the organization of the corporation, and thereby, by his own conduct, to have put himself in a position in which he could not comply with his contract with B., by transferring the stock, a specific execution is enforced against him to the extent that he is compelled to accept a compliance upon the part of B., and to be liable to him for the value of the stock, which is ascertained on the facts stated in the opinion, and for which a judgment is directed.

4. DEEDS MADE BEFORE, BUT DELIVERED AFTER THE REPEAL OF THE STAMP ACT, are held to be valid without having been stamped,

5. A PURCHASER WHO EXAMINED A HOUSE AND LOT BEFORE MAKING THE PURCHASE, and found an alley-way open and in use under a former reservation, must be presumed to have purchased with the knowledge of the reservation of the use of the alley-way in the conveyance to his vendor.

6. WHEN A DEED ACKNOWLEDGED BY A MARRIED WOMAN HAS NOT BEEN RECORDED WITHIN THE TIME PRESCRIBED BY LAW, no judgment should be rendered against the vendee for the consideration, in an action by the vendor, in which the deed is tendered by him, until the deed is re-acknowledged.

APPEAL from Louisville Chancery Court.

A. Barnett and I. & J. Caldwell and Winston, for appellant; Barr, Goodloe & Humphrey and P. B. Muir, for appellee.

COFER, J., delivered the opinion of the court: January 27, 1872, the appellee, Shotwell, proposed, in writing, to J. Lawrence Smith, Arthur Peter, H. F. White, P. G. Kelsey, Theodore Harris, and the appellant Burton, that he would sell to them certain coal-mines, and their appurtenances, at the price of $216,000, to be paid for as

follows, viz: $100,000 in the ten-year ten-percent. bonds of a corporation which they contemplated organizing, secured by the personal guarantee of the purchasers; one-third of the stock of that corporation; and $16,000 to be paid to discharge an encumbrance on the property. On the same day it was agreed by the parties that the property should be stocked at $300,000. The written proposal was accepted in writing on that day-which was Saturday-by all to whom it was made, except Sinith, who promised to sign it on the following Monday. He, however, signed the agreement to stock the property at $300,000 on Saturday. The proposal to sell, and the acceptance indorsed thereon, and signed by all except Smith, was left on Saturday evening with Harris, to be signed by Smith on Monday. Both Burton and Shotwell were then present, and were informed that Smith had not signed the acceptance, but would do so.

During Saturday afternoon, and probably after all that has been stated had occurred, Burton and Shotwell entered into a contract, by which Burton sold and agreed to convey to Shotwell certain real estate in the states of Illinois and Kentucky, for which, as the purchase price, Shotwell agreed to assume the payment of certain liens on the property purchased, amounting to about $33,500, and to transfer to Burton $55,500 of the stock to be paid to him by "the company this day agreed to be organized, and which has bought out his (Shotwell's) coal-mines." Between the time of entering into the latter contract, which was late on Saturday evening, and the following Monday morning, Shotwell became dissatisfied with it, and determined to get rid of it by withdrawing his proposal to sell the mines, and thereby to defeat the organization of the projected corporation. Accordingly, on Monday morning, as early as nine o'clock, he caused to be delivered to Harris a note withdrawing his offer to sell the mines. Burton was present when the note was delivered to Harris, and was made acquainted with its contents.

Afterward, on the same day, Burton, without disclosing to Smith that Shotwell had withdrawn the offer, presented it to him and obtained his signature to the acceptance. Still later in the day Shotwell was notified by Harris that his offer had been accepted by all the persons to whom it was made. On the same day on which Smith signed the acceptance he called on Harris, who had the custody of the paper, and in the presence of a part, but not all, of his associates, drew a pen across his name, for the purpose of canceling his acceptance.

The proposed corporation was never organized, nor any further steps taken towards its organization.

Soon after the 29th of January, Burton notified Shotwell that he would, in a short time, tender conveyances in compliance with their contract, and desired him to be in condition to comply on his part. Deeds were accordingly tendered, and Shotwell declining to accept them, this suit in equity was brought to obtain specific performance. The prayer of the petition is for a specific exe

cution of the contract between Burton and Shotwell; that Shotwell be compelled to accept title to the real estate therein sold to him, "and to pay therefor said sum of $55,500 in cash or in the stock of said company, as provided in said contract, and for all proper relief." Shotwell answered, setting forth the offer to sell the mines, and alleged that it had not been fully accepted by those to whom it was made. He also alleged that after the proposal was made to sell the mines, Burton proposed to sell him the real estate mentioned in the contract between them, and represented that it was worth $89,000, when in fact it was not worth more than one-half that sum; that he also represented that he had good title to all of said property, when, in fact, he had no title to any part of it; that upon these representations and assurances, and upon the further representation and assurance that the contract between them would have no legal effect until carried out and executed by both, in accordance with the proposition for the sale and purchase of the mines, he was induced to sign the contract with him, "but upon the express condition and understanding that the said contract should not have any effect until he had examined the said property and became satisfied therewith," and that he "never signed said contract except upon said conditions, nor intended it to be binding or have any effect unless the proposed sale of said coal-mines should be effected and completed, and this defendent should be satisfied with plaintiff's property after examination." He further alleged that the proposed agreements were dependent, and the one proposed to be made with Burton for the purchase of his property, was the sequence of, and dependent upon the consummation of the contract for the sale and purchase of the mines; that he never agreed nor was expected to pay Burton any money for his property. He denied that the deeds tendered were sufficient to convey good title to the property in Illinois, or that Burton was able to convey a good title to the property in Kentucky.

In an amended answer he alleged that Burton had misrepresented the location of a portion of the property in Illinois, and that situated as it actually was, it was worth much less than it would have been if it had been situated where it was represented to be.

He also alleged that Burton was an active originator, promotor, and organizer of the scheme to purchase his coal-mines; that neither he nor any of his associates had offered to comply with that contract, but had acquiesced in his withdrawal of his offer to sell.

We have already stated the facts relating to the acceptance of the offer to sell the mines, and need not repeat or comment on them further than to say that the proposal was accepted, notwithstanding its withdrawal; and that the erasure of Smith's name could not, as between himself and Shotwell, have affected the validity of his acceptance, nor canceled his liability in that contract. The sufficiency of Burton's title to the Illinois property is not now questioned.

The allegation that Burton represented and as

sured Shotwell that the contract between them would have no legal effect until carried out and executed by both, in accordance with the proposition for the sale and purchase of the mines, is not sustained by the evidence, nor does the evidence show that it was agreed or understood between the parties that the contract should not. take effect until Shotwell should examine Burton's property, and be satisfied with it. On the contrary, it is proved, by a decided preponderance of the evidence, that Burton offered to leave the matter open until Shotwell could examine the property, but the latter declined the offer, and the contract was signed.

That Shotwell may have intended the contract with Burton should not be binding unless the proposed sale of the mines was effected, could in no event be a defense, unless Burton was apprised that he so intended and agreed that he should not be bound, which is not claimed.

The objection urged to the deeds tendered is based on the alleged fact that they were not stamped as required by the act of congress then in force. There are two obvious answers to this objection: (1) the stamp act was repealed long prior to the hearing of the cause, and the deeds, not having been delivered, were valid without stamps; (2) no objection was made for want of sufficient stamps, and any that might have been made on that ground was waived.

The next question we will consider is, whether the agreement between Burton and Shotwell was dependent upon the completion of the proposed sale and purchase of the mines, and the organization of the proposed corporation, a part of the stock of which was to be transferred by Shotwell to Burton, in payment for the latter's real estate; and, if so, whether the non-completion of that scheme defeated the contract between them.

That contract was an agreement for the exchange of property. It was not a sale. Shotwell did not agree to pay money for the real estate. At the time the contract was made the property agreed to be transferred had only a potential existence, and Burton knew that fact. Both knew that Smith had not signed the acceptance, and that the scheme for the purchase of the mines might fail by his refusal. If he had refused to accept the offer, or if, from any other cause for which neither Burton nor Shotwell was resposible, the scheme had failed, neither could have enforced the contract between them against the other. Burton could not have been compelled to accept the value of the stock, and convey the real estate, nor could Shotwell have been compelled to pay its value and accept title to the property. Shotwell could not have enforced the contract, because he would have been unable to tender performance on his own part. Burton could not have enforced it, because Shotwell, without fault and from causes in view of which the parties contracted, would have been unable to comply, and for the same reason would not have been liable for damages for a breach of the contract. We are therefore of the opinion that the contract between Burton and Shotwell was, in a qualified sense, dependent on