The New York herald., 1875-08-20

Issued by the plaintiff in error 70 the defendants In
error upon the steamboat Diamond. The Home Insur-
ance Company corporation organized under the laws
OF the State OF New York and having its office prn-
epa place OF business in the city OF New York The
company entered its appearance in the Winnebago
county suit and Aed its petition remove the cause to
the United States Court for the Eastern District Of Wis
consin The petition in the form required by the
twelfth section Of the act OF 1889 accompane led
by bond with sufficient bail, required by that act
The Circuit Court Of Wnnebago county refused TO grant
the prayer for removal proceeded TO the trial Of the
cause. A verdict was rendered against the company
judgment ordered thereon and upon an appeal to the
Supreme Court Of Wisconsin the affirmed
The insurance company now brings writ of error 10
this Court The Of the Montelo argued at tho
time with the present; both cases as it un-
derstood, involving the question whether the Fox
River was navgabie water Of the United States. The
decision OF that question Is not essential to the iudg
ment To be rendered in the present The refusal
OF the State Court OF Wisconsin 70 allow the removal Of
the case into the United States Circuit Court Of Wis
consn, and It's under the agreement Of the
company and the statute OF Wisconsin, form
the subject OF consideration In the present
suit The statute Of Wisconsin in question was
passed in the year 1870 and therein it declared that
t shall not be lawful for any fire insurance company
association partnerships Incorporated by or organ
lied the laws OF any other State of the United
States, any foreign government for any of the pur-
poses specified In this act directly or Indirectly TO
take risks or transact any business Of insurance this
State, unless possessed Of the amount of actual capital
required OF similar corporations formed under the pro-
visions of this act; and any such company desiring TO
transact any such business aforesaid by any agent
or agents in this State shall first appoint attorney
in this State, on whom process OF law can be
served, containing agreement that such company
Will not remove the suit for trial into the United States
Circuit Court federal courts and file in the Office Of
the Secretary of State written instrument duly signed
unu sealed, eertiylng such appointment which shall
continue until another attorney be substituted Qaws
OF 1870 chapter SOL section % page ST. First Tayor
Statutes page 95S section 22 Desiring to do business
with the provisions Of this statute the Home
Insurance Company Of New York, on tho Ist
tho Secretary Of State Of Wisconsin h0 am SSe St
Of Henry s. Durand as their agent in thai state on
whom process might be served The power of attorney
thus filed contains this ause:-"And said company
agrees that suits commenced In the State courts of wis
oonsin shall not be removed by the said company
into tho United States circuit federal courts The
State courts Of Wisconsin held that this statute and the
agreement under II justified denial of the petition to
remove The case into the United States Court The in
surance company deny this proposition and this is the
point presented for consideration:-Is the agreement
hus made by the insurance company one that without
reference TO the statute would bind the party making
itf Should citizen OF the State Of New York
into an agreement with the State of Wisconsin that in
no event would he resort to the courts of that State or
to the federal tribunals within it TO protect his rights Of
property, 1t could not be successfully conended that
such an agreement would be valid Should a citizen of
New York enter into an agreement with the State Of
Wisconsin. upon whatever consideration that he would
In no case, when called into the courts OF that State
the FEDERAL tribunals within IT, demand jury to deter
mine any rights of property that might bo called in
mitted TO arbitration or to the decision of single
Judge, the authorities are clear that he would
not thereby be debarred from resorting to
the ordinary legal tribunals of the State
There no sound principle upon which such agreements
can be specifically enforced. We no difference IN
principle between the supposed and the before
us Every citizen is entitled all the courts
OF the country and to invoke the protection which all
the laws or all those courts may afford him. man
may not barter away his life or his freedom or his
substantial rights. In a criminal case he cannot as
was held in Cancemis case u.s. ~ Y. r., 1881 be tried
in any other manner than by jury of twelve men,
although he consent in open be tried by Jury
OF eleven men. In a civil cage he may submit his
particular suit by his consent TO an
arbitration or to the decision Of single
judge. SO he may omit TO exercise his right to
remove his suit to federal tribunal often as he
thinks it, in each recurring In these aspects any
citizen may no doubt waive the rights to which he may
be entitled He cannot, however bind himself In ad
vance by an agreement, which may be specifically
forced thus to forfeit his rights at all times all
occasions whenever the may be presented. That
the agreement Of the insurance company invalid upon
the principles mentioned tho following cases are
cited:-Nutt vs. Hum. Ing Co. Q Gray, ia; Cobb VS.
New Eng NJ. Ins, Co., 6 Cray 1872; Hobbs VS. Manhat-
tan ms Co., 90 Maine, 42l stephenson p F. and NJ.
lns Co, 3D. Maine, 10; Scott VS.. Avery House Lords
Cases Sll They show that agreements in advance to
oust the courts of the jurisdiction conferred by are
illegal and void Reversed, the Chief Justice and Mr.
Justice Davis dissenting.