Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1873-05-27

h. w. baylor VS.. the b. q U. b. b.,
Delivered in the Circuit Court of Jefferson
County, " Va, at the Apra Term, 1878.
This is an action of trespass on the case in
sttuted by the plaintiff, a citizen of West
Virginia, to recover damages for injury al
legged to have resulted from negligence of the
defendants servants The damages claimed
by the writ and declaration are 5000
The case was tried at the April term, 1872,
of the late Circuit Court of Jefferson. and
verdict was then found for the plaintiff which
assessed his damages at $500. This verdict
was set aside and new trial granted, upon
the defendants motion at the same term and
the action now stands upon the docket of this
Court for trial. de nouo.
AT the term held in November last. how
ever, the defendant filed petition for the re-
moval of the case to the U. S. Circuit Court
for the District of West Virginia 1t also
presented the affidavit of A. b. Wood its
agent at Harper's Ferry, in Jefferson county,
which set forth that he had reason to believe.
and did believe, that from prejudice and 10,
cal influence the defendant can not obtain
justice in this Court In addition su fficient
bond for entering copies &c, in the o. S.
Court was executed and flied iu the papers.
The question to be decided by the Court
the case, under the Act of Congress approv ed
March 2, 1867. I'll Stat. at Large, 558.7
That act provides, ''ihnt where suit is now
pending, or may hereafter be brought in any
State Court in which there is a controversy
between citizen of the State in which the
suit is brought, and citizen of another State.
and the matter in dispute exceeds $780, cx-
elusive Of COSTS such citizen, whether he he
plaintiff or defendant, if he will make and file
an affidavit in such State Court, 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 have the
cause removed to the Federal Court
The conditions essential to the exercise of
this right of removal are stated in Sands as.
Smith Abb. U. s. Reports, 3775, to be:
/. That the controversy shall be between
citizen of the State in which the suit is
brought, and n citizen Of another State.
2. That the matter of dispute shall exceed
the sum Of s50O-exclusive of costs
3. That The party, citizen of such other
State, shall file the necessary affidavit and
give the required security for appearing in
the Federal Court.
The discussion of the question whether the
defendant has fully complied with these sew
cra conditions, and the consideration of an>
other proposition, which will hereafter be
stated, will involve all others necessary to a
determination Of the motion for removal
But, the constitutionality of tho Federal
statutes under which these proceedings are
instituted, having been assaled by counsel
resisting the motion, it is proper to dispose of
that question at once. The decisions of the
Supreme Court in cases involving the con-
strncti"n and constiutionaiity of laws of the
United States, are binding authority upon all
Courts. That Court has uniformly sustained
the validity Of the Act of 1880, known as the
Judiciary Act; and the amendments to it
particularly the Act of March 9. l867-have
been declared not to be in conflict with the
Constitution. 18th Wallace, 1885, 1t is
not for this Court. therefore, to undertake to
review these decisions; for even if indisposed
to accept their conclusions. it could only op-
pose to controlling authority useless and
impotent dissent.
Reverting to the questions arising in this
case, they will be considered, for the sake of
convenience, in another order from that in
which they were stated.
Has the defendant fled the necessary affi>
davit and given the required bond?
The Act of 1867 is silent in regard to tho
verifcaticn of the affidavit; nor does it indi-
cate by whom it shall be made, except in
general terms stating that the party shall file
1t, 90 An athdavlt, therefore, in the foru
and authenticated in the mode prescribed by
our usual practice must be taken to be suffi-
cient; and as the defendant is a CORPORATION
the competency of it's agents to make an affi>
davit can not be assaled. For the purposes
of the Act of 1S6I-the chatacter of which
is 40 absolute and positivc-the affidavit filed
with the petition, and the bond executed by
approved sureties, must be regarded as pre-,
sentiug the required basis for the motion
under consideration. It must he remarked.
however, that in controversy between citi~
zens of this State, upon a motion for change
of venue, or removal of case TO another
Court in the circuit, such an affidavit would
not be deemed sufficient to sustain an alleea-
tion which impugns the fairness of this tri>
bunal and attributes inj ustice and prejudice to
an entire community.
In the next place, [ am satisfied that the
measure of the amount involved is furnished
by the demand of the declaration. The fact
that the case has been once tried and ver-
diet found for $500 is uuimportant That
verdict has been set aside and new trial OBJ
tanned. The case stands, therefore, so far as
this point is concerned, precisely as if it had
never been tried. This is the general effect
of new trial; and in construction of the
language of the Statute ''before final hearing
or triar' it has been held tina. previous trial
and verdict-the verdict being set aside-left
the right of removal unaffected. The analogy
in cases of appeals, which was sought to be
traced at the bar, does not strike me as sound.
An appeal lies from final decree or Judge
ment by which the amount involved has been
distinctly ascertained. An appellate Court,
in determining the question of its jurisdiction
does not look to the exaggerated claims of the
declaration but to the amount fixed and de.
clared by the final decree or judgement On
the other hand in cases of removal under the
Act of Congress the Court can only look to
the demand which the plaintiff asserts to de-
seruine the matter in dispute for, as an