at of a contract obtaired by their fraud, they can have no standing in a court of equity. 2. The equitable powers of this court can never be exerted in behalf of one who has acted fraudu lently, or who by deceit or any unfair means has gained an advantage. [No. 126.] Argued Dec. 2, 1873. A Decided Jan. 19, 1874. PPEAL from the Circuit Court of the United States for the Districts of Missouri. The bill was filed by Solomon G. Kitchen in the court below, against the defendants, to compel a conveyance to him of a certain tract of land, which the complainant alleged had been purchased by W. C. Rayburn, with the proceeds of certain railroad bonds placed in his han ls by the said complainant, to be used in the purchase of railroad land, but which the said Rayburn had, without authority, sold for money, and with that money purchased the land in question. The defendants answered. Afterwards the said complainant filed an amended bill, in which his wife joined as party complainant, and the defendants filed an answer to the amended bill. Replication was filed and cause heard on pleadings and proofs, and the bill was dismissed. The complainants appealed. The bill states that the complainant, Solomon G. Kitchen, Mar. 16, 1866, placed in the hands of William C. Rayburn one hundred nineteen bonds, of $1,000 each, of the Cairo and Fulton Railroad, with coupons attached, upon the trusts expressed in a receipt then and there given by the said Rayburn to the following effect, viz.: he acknowledged to have received from the complainant, Martha A. Kitchen, said Solomon's wife, $119,000 of bonds of the Cairo and Fulton Railroad, with $55,405 of coupons, which he promised to expend in the purchase of lands from the trustees of the Cairo and Fulton Railroad Company, at or near the average price of $5 per acre, taking the deeds in his own name, and to sell the lands as she should direct, and to pay over to her seven eighths of the net proceeds after deducting traveling expenses and stamps. The bill further alleges that Rayburn, about Dec. 20, 1866, in violation of his trust, sold the bonds for $10,000 in money, and Mar. 11, 1867, with $5,000, part of the money so obtained, purchased two tracts of land, one containing about 271 acres, and the other (12 by 16) 192 perches of land, and took the deed in the name of his son, Jacob B. Rayburn, who has died, leaving brothers and sisters, his heirs at law, who also are made parties defendant; that the land was purchased for one Timberman, who was surety of one Muse, and a judgment having been recovered against Timberman and Muse some time before the purchase by Rayburn, the land was sold under execution in Sep., 1867, and bought by one R. P. Owen, who afterwards conveyed it to Moore M. Rayburn, a brother of Jacob B. Rayburn, deceased, for a consideration expressed in the deed to be $1,565, but that in fact the consideration was never paid, but the debt was paid by Muse, the principal debtor, and was in fact a redemption of the property, and that the conveyance from Owen to Moore M. Rayburn was procured fraudulently, to place the property beyond the reach of the complainants. The answer denies that any bonds were placed in W. C. Rayburn's hands on the trusts alleged, and avers the truth to be that "The said Solomon G. Kitchen was justly indebted to the said William C. Rayburn in the full sum of $11,000, for the payment of which the said William C. Rayburn held certain securities, which the said drawing," and that the said Kitchen produced Solomon G. Kitchen, was desirous of withto the said William, 124 bonds of $1,000 each, with coupons, of the Cairo and Fulton Railroad Company, and represented that they were receivable at par, for lands along the track of the railroad, and that the holder of such bonds could enter and pay for lands with such bonds at a minimum price of $5 per acre, and that for four of the bonds and accrued interest, the said William could become owner of lands worth $11,000, and he requested said William to convert the other $119,000 of the bonds and the coupons attached into such lands, taking the deed in his own name, and then to sell the lands and pay over seven eighths of the net proceeds; and that the said William C. believed in the representations so made, surrendered the securities for the $11,000 and executed a memorandum promising to invest the other $119,000 as requested; but that it was agreed at the time that the claim of Rayburn against Kitchen should first be paid out of the $124,000 of bonds and the proceeds thereof, and if the five bonds included in the 124 should not be sufficient to pay the debt, then the 119 bonds should be dedicated in the first place to the payment thereof. And that, upon the faith of the representations so made by Kitchen, "And upon the agreement made between said Rayburn and the said Kitchen, as aforesaid, after the assignment and delivery of the said memorandum as to the appropriation of the proceeds of the 119 bonds, in the first place to the satisfaction of whatever portion of the said debt of $11,000 from the said Kitchen to the said Rayburn, owing, as aforesaid, might remain unpaid and unsatisfied after the application thereto of the proceeds of the sale or investment of the said five bonds not included in said memorandum, the said William C. Rayburn received the 124 bonds of the said C. & F. R. R. Co., and agreed to convert them into land, as suggested by the said Kitchen, and as was declared by him to be practicable, or otherwise disposed of the same, and out of the proceeds thereof, to satisfy, in the first place, the aforesaid debt of the said Solomon to the said William C., owing, and to hold the residue of said proceeds to the use of Martha, wife of said Solomon G. Kitchen, as to said seven eighths thereof, reserving to himself the one eighth thereof;" that the representations of Kitchen as to the convertibility of the bonds were false, and Kitchen knew it; that the bonds had no market value whatever, and were unsalable; that the Railroad Company had no title to the lands; and that Rayburn having an offer of $10,000 for the 124 bonds, and knowing that Kitchen had estimated them at less, he, Rayburn, sold the bonds and applied the proceeds to the satisfaction, in part, of Kitchen's debt to him. He admits that he sought to purchase for his son Jacob, with a part of the same money, the tract of land in question, and made payment therefor, but says it was in good faith as an advancement to his son, and he says the title failed by reason of the sheriff's sale, and that after the sale and purchase by him "The said Moore M. Rayburn paid to said Owen, out of his own means and money, the price mentioned in the said deed from the said Owen, to the said Moore M. Rayburn, who holds the land as his own." Kitchen and Miller had owned about 2,200 acres of land called the St. Luke land. In 1864, said William C. Rayburn bought Kitchen's undivided half interest in said land for $10,000 in Confederate money, and paid nearly or the whole of the amount. No deed of conveyance was made, but a bond was given. After the war, there being heavy judgments against Kitchen and Miller, they desired to use this land in payment. Then, in order to get the disposal of the land, Kitchen desired to annul his contract with Rayburn, and for this purpose, gave him the five bonds of the C. & F. Railroad Company. Thus far the depositions of both parties agree. The difference between them is, that Kitchen says the five bonds were in full satisfaction for the surrender of the bonds of conveyance, while Rayburn says the five bonds or the proceeds were to be credited on account, and the 119 bonds were to be liable if the five bonds were insufficient. This bond for a deed for these lands constitutes the securities referred to in the answer. The case further appears in the opinion. Messrs. J. M. Carlisle, J. D. McPherson and Ewing & Holliday, for appellant. Messrs. M. Blair, F. A. Dick and Thomas T. Gantt, for appellees. Mr. Justice Strong delivered the opinion of the court: It is impossible to separate the receipt which William C. Rayburn gave for the one hundred and nineteen bonds from the arrangement by which he gave up his title to the moiety of the St. Luke lands, and the engagement of Kitchen to secure to him $10,000, the understood value of the lands. They are all parts of one transaction. The assent of Rayburn to a rescission of the contract by which he had become the equitable owner of that moiety, the acceptance 261*] of some of the bonds as security for payment of the consideration for the surrender, and the undertaking to invest the remaining bonds in the purchase of land from the trustees of the railroad company, were all induced by the representations of Kitchen, and they were obtained at the same time. The evidence satisfactorily establishes that, having sold an undivided half of the St. Luke lands to Rayburn, and subsequently finding it for his interest to recover the ownership of them, he proposed a repurchase. There appears to have been no difference of opinion respecting the value of the lands and the price to be paid for the proposed surrender of Rayburn's title. John T. Starr, a witness present when the arrangement was spoken of, testifies that Kitchen stated to Rayburn he would give him railroad bonds sufficient to secure him in the sum of $10,000 if he would give up his claim or obligation on him for the lands, and further stated that with the bonds he, Rayburn, could get more land equally good and in a better body or locality. The St. Luke body of lands contained twenty-two hundred acres, of which a moiety had previously been 66 sold by Kitchen to Rayburn, and this witness thought they were worth at least $10 an acre then, that is, when the arrangement was made for the repurchase. To the same effect is the testimony of Rayburn himself. It is that the undivided half of the St. Luke lands were valued by Kitchen at $10,000, and there is no evidence in the case inconsistent with this. Ten thousand dollars, then, was the sum which Kitchen came under obligation to pay to Rayburn for the lands which the latter surrendered by giving up the receipt he had taken for the purchase money, and by returning the property bond. Thus far there is little conflict in the evidence. But from this point onward there is more disagreement. The account of the transaction given by Kitchen is that he agreed to give Rayburn, in satisfaction of the debt, railroad bonds of the Cairo and Fulton Railroad Company, enough to pay for a thousand acres of land of the company, then held by trustees, and that he did give him four [five] such bonds for $1,000, each amounting, with the interest coupons thereon, to more than *$6,000, [*262 telling him the trustees might charge him for the land a little more than $5,000, but that he would make it up. The remaining bonds, he states, were taken by Rayburn to be invested in lands for Mrs. Kitchen. He does not admit that he authorized the application of any of those remaining bonds to the payment of his debt to Rayburn. The testimony of Rayburn is that Kitchen not only gave the four [five] bonds towards the liquidation of the debt, but that he also said if they were not sufficient, he (Rayburn) might use a sufficient number of the others in his possession (meaning those for which the receipt was given) to pay himself for the undivided half of the St. Luke lands, valued at $10,000 by Kitchen himself. If this is true there is an end of the plaintiff's case, for it clearly appears that the bonds could not be used in the entry or purchase of the railroad company's lands, and that the whole of them, one hundred and twenty-three [twenty-four] in number, were sold for $10,000, a sum not greater than the agreed value of the St. Luke lands. The plaintiff's bill affirms that sale, and it seeks to follow the proceeds subsequently invested, in part, in the land bought from Timberman. It is not necessary, however, to determine whether the testimony of Rayburn in this particular is a true account of the transaction. There is another aspect of the case which is controlling. The arrangement between Kitchen and Rayburn, in which the latter surrendered his claim to the St. Luke lands, accepted bonds in payment of the debt due him, and assumed a trust of other bonds, even if it was such as the plaintiffs allege, was fraudulently obtained by Kitchen. He had been president of the railroad company. He knew its condition. He knew that the bonds were almost valueless. He had declared that under certain circumstances they would not be worth more than five cents on the dollar. Having himself a claim upon the company, he had refused to receive the company's bonds in liquidation of the claim at more than $50 each, including unpaid coupons, and he had settled with the company, receiving one hundred and sixty-eight bonds at 86 U. S. 263*] that rate. Yet, in order to effect his *bar- | gain with Rayburn, who was an illiterate man, he represented to him that the bonds were very good; that he (Rayburn) could make the money at any time out of them; that he could enter eleven hundred acres anywhere about Clarkton, Dunklin County, with five of them, paying all expenses; that the lands about Clarkton, known to Rayburn, were railroad lands, and subject to be entered with those bonds at that time. All these representations were false, and were known by Kitchen to be false. Moreover, he was assured that Rayburn had no knowledge upon the subject, and that confidence was reposed upon his statements. It was thus the contracts were obtained. Rayburn gave up his bond for the conveyance of the St. Luke lands, accepted the bonds, and assumed the trust. And it was not until after he had discovered that neither the trustees of the railroad company nor the company itself had any lands about Clarkton, or elsewhere, that could be entered with the bonds, either at five dollars per acre or at any price; that the bonds were almost valueless and that Kitchen had offered to sell one hundred and sixty-eight similar bonds for $8,423; that he sold those transferred and deposited with him for $10,000. The complainants, then, do not come into court with clean hands. They are seeking the benefit of a contract obtained by their fraud, or by the fraud of Solomon G. Kitchen. Hence they can have no standing in a court of equity. Such a court will not lend its power to assist or protect a fraud. It will not even enforce an unconscionable bargain. In Bein v. Heath, 6 How., 247, it was said to be a principle in chancery "that he who asks relief must have acted in good faith. The equitable powers of this court can never be exerted in behalf of one who has acted fraudulently, or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make this court the abettor of iniquity." For this reason, if for no other, the plaintiffs cannot succeed. They are seeking in a court of equity to derive an advantage from their own wrong. The decree of the Circuit Court is affirmed. UNITED STATES Piff., v. JOHN ARWO. (See S. C., 19 Wall., 486–490.) District of New York, for an assault committed upon the high seas with a deadly weapon. He pleaded to the jurisdiction, alleging that immediately upon the commission of the crime he had been placed in irons on board ship for custody, and to be forthcoming to answer any charge therefor, and was so kept until the vessel reached the lower quarantine anchorage in New York harbor, within the Eastern District of that State; that the vessel lay at anchor at such station for five days, during which he, being still in such custody, was delivered to the harbor police, officials of the State of New York, in order that he might be forthcoming, etc.; and that they carried him to the City of New York, where he was delivered over to the United States Marshal for the Southern District of New York, to whom a warrant for his arrest (being the first issued in this case) was afterwards duly issued; so that, upon the whole, he had been apprehended and brought first into the Eastern, and not into the Southern District, and, therefore, could be tried only in the former, and not in the latter District, etc. The District Attorney demurred to this plea. Upon the argument below, the following questions occurred, and the court certified a division thereupon: 1. Whether the prisoner, having been taken into custody by the master of an American vessel, while on her voyage, upon a charge of having, during the voyage, committed an offense against the United States on board such ship, upon the high seas and out of the limits of any State or district, and first brought, in such custody, into the Eastern District of New York, can be tried for such offense in the Southern District of New York. 2. Whether the facts stated in the plea show that the Southern District of New York is not the District in which the defendant was apprehended within the meaning of the Act of Mar. 3, 1825. 3. Whether the plea discloses that, within the meaning of the Act of Mar. 3, 1825, the apprehension of the defendant occurred, [*488 either upon. the high seas or in the Eastern District of New York, and not in the Southern District of New York. 4. Whether the Act of Mar. 3, 1825, confers jurisdiction in the alternative, and enables this court to assume jurisdiction to try an indictment by reason of the fact that the defendant has been arrested in this District, upon the charge in the indictment contained, by an of Where trial for offense committed on the high ficer of the United States as stated in the plea, seas may be had. Under the Act of Mar. 3, 1825, where a prisoner, having been taken into custody by the master of an American vessel, while on her voyage, upon a charge of having, during the voyage, committed an assault with a deadly weapon, an against the United States on board such ship, upon offense the high seas and out of the limits of any State or district, was first brought, in such custody, into the Eastern District of New York, he can be tried for such offense in the Southern District of New York, and the Circuit Court for such Southern Dis trict has jurisdiction of the case. notwithstanding it appears that the defendant was first brought into the Eastern District of New York. Messrs. Geo. H. Williams, Atty. Gen., and S. F. Phillips, Solicitor Gen., for plaintiff. No counsel appeared for defendant. Mr. Justice Clifford delivered the opinion of the court: Instead of answering separately the questions certified here, I am instructed to say, that the court here, upon the facts alleged in the plea, is of the opinion that the Circuit Court for the Southern District of New York had jurisdiction in this case, and that the court directs that statement be certified to the circuit court, as the only answer required to the several questions presented on the record. 1. Where a cause is removed from a State Court to the Circuit Court of the United States, the Act of Congress expressly requires the State Court where it was originally pending, to proceed no further in the suit. 2. Any further proceeding in the State Court is a clear case of usurped jurisdiction. The maxim, "Consent cannot give jurisdiction," applies with full force. 3. Affer a trial by a jury in the State Court, if the judgment thereon is vacated and a new trial granted, the cause may be removed to the Circuit Court. The judgment having been vacated, is not final within the meaning of the Act. 4. The act allowing the removal is constitutional. 5. The 7th Amendment to the Constitution, touching the re-examination, in the Courts of the United States, of facts which have been tried by a jury, has no application to such case, because the first judgment has been vacated. [No. 192.] Argued Jan. 13, 14, 1874. Decided Jan. 26, 1874. The last two substantially follow the reason. ing of the first, without much apparent examination, and, therefore, add little additional weight. This first case proceeds upon two grounds: 1. That the words "before the final hearing or trial," are to be understood as though they were "before trial or final hearing." 2. That, in the case then under consideration, certain issues of law had been finally decided by the highest court of the State, and that such decision had become the law of the case and binding upon the court below, and that, therefore, there had been, in a sense, a final hearing or final trial. As to the first ground, we deny the construction urged, and insist that the adjective "final" qualifies the substantive "trial," as well as the word "hearing." The rule in cases where an adjective is followed by several substantives in succession, to each of which it may appropriately apply is, that it agrees with all. There is nothing in the phrase or context here to indicate any other construction. If we go outside the letter of the Act, we discover no contrary indication. Acts in pari materia, which it is permissible to examine, point to the construction which we urge. Act of 1789, 14 Stat. at L., 79; Act of 1866, 14 Stat. at L., 306. Mr. W. H. Standish for defendant in er IN ERROR to the First Judicial District Court ror. of Hamilton County, State of Ohio. If the cause was properly removed, it will be conceded that it was the duty of the State Court to proceed no further in the cause; that any step, subsequently taken, in the exercise of jurisdiction in the case by the common pleas or District Court was coram non judice and, therefore, erroneous. Stevens v. Ins. Co., 41 N. Y., 49; Gordon v. Longest, 16 Pet., 97; Kanouse v. Martin, 14 How., 23, 15 How., 198; see, also, Akerly v. Vilas, 1 Abb. (C. C.), 284; Mayor v. Cooper, 6 Wall., 247, 18 L. ed., 851. The cause was properly removed, under the statute in question. Mr. Justice Swayne delivered the opinion of the court: This is a writ of error to the District Court of the State of Ohio, within and for the County of Hamilton. The case involves a question of jurisdiction arising between State Courts and a Federal Court, which, though not without interest, involves no difficulty in its solution. The administratrix sued the Insurance Company upon a life policy, in the Court of Common Pleas of Hamilton County. She recovered a verdict, and thereafter a judgment was rendered upon it. The Company applied for a new trial, and gave bond pursuant to the laws of Ohio, in that behalf. Swan & Critch., R. S., 1155. This had the effect of vacating the verThe question of the correctness of this prop- dict and judgment as if a new trial had been osition is supposed to depend upon the construc-granted according to the course of the common tion given to the phrase "before final hearing or trial," as used in the Act of 1867. On the one hand, it is claimed that it should be construed to authorize the removal at any time before "final trial." On the other, that it does not justify a removal after "a trial." There has been but little authoritative construing of the phrase. In the case of Akerly v. Vilas, before cited, the case had been twice before the Circuit Court of the State, and the second time remanded on appeal by the Supreme Court, when the application for removal was made. It appears that the circuit judge construed the phrase in question, the same as if it read "before final hearing or final trial." law, except that the lien of the judgment remained for the security of the plaintiff, in addition to the bond given by the defendant. In this condition of things, the Company petitioned the Court of Common Pleas for the removal of the cause to the Circuit Court of the United States for that district, pursuant to the Act of Congress of March 2, 1867. 14 Stat. at L., 558. The requirements of the statute having been complied with, the court ordered that no further proceedings be had there in the cause, and it was removed to the circuit court. The administratrix appeared in that court and moved that the case be dismissed for want of jurisdiction. The motion was overruled. The administratrix thereupon asked leave to file an This view is vigorously contested; in the amended petition in that court. Leave was same case, reported in 24 Wis., 165, and in the granted. The petition was filed, and is still case at bar, reported in Ins. Co. v. Dunn, 20 pending there. She thereupon instituted proOhio St., 175, and also in that of Hall v. Rick-ceedings in error in the District Court for the etts, 9 Bush., 366. county to reverse the order made by the Court of Common Pleas, and a judgment of reversal | Act of Congress were fully complied with. No was rendered. The Company applied to the question is raised upon that subject. The propSupreme Court of the State for leave to file a osition involves the construction and effect of petition in error. Leave was refused. This in the Act, and of the laws of Ohio under which effect affirmed the judgment of the district the transfer was made. The Act declares that 223*] court. A *second trial was thereupon the petition may be filed "at any time before had in the Common Pleas, and the administra- the final hearing or trial of the suit." It is contrix recovered a second judgment. The Company tended that the qualifying adjective final apremoved the case to the District Court of the plies to the term "hearing" and not to "trial,” county by a petition in error. That court af- and that any trial, whether final or not, is confirmed the judgment. The Company thereupon clusive against the petitioner. This is too narsued out this writ of error, and the entire rec- row a view. It is contrary to the grammatical ord in the State Courts is thus brought before construction and the obvious import of the us for review. words. The repetition of "final" before "trial" would have been tautology. To produce such a result as that contended for, the indefinite article should have been placed before the word "trial," so that the language would have been— before the final hearing or a trial. This would, doubtless, have been done if such had been the intent of the Act. The statute is remedial, and must be construed liberally. There is no reason for interpolating this limitation. The adjective must be taken distributively and applied as well to the second as to the first term, and to both It is insisted that the Company, by appearing and contesting the claim in the second trial, waived the question of jurisdiction, and was bound by the judgment. To this there are several answers. The Company resisted the reversal of the order of removal made by the Common Pleas, and did all in its power to that end. Having failed, and being forced into a trial, it lost none of its rights by defending against the action. The cause was out of the Common Pleas, and in the Circuit Court. The former had jurisdic-alike. The test is whether the *hearing [*225 tion to remit and the latter to receive it. Being in the latter, that court had jurisdiction to retain it. If there were error on the part of the circuit court in overruling the motion to dismiss, because the case had been improperly brought there, the remedy should have been sought in the Federal Courts. The State Courts were incompetent to give it. The authority of the latter was at an end until the case should be restored, if that were ever done, by the action of the former. Nothing is lost to the State Courts by the application of this rule, for if they refuse improperly to permit a case to be removed, their refusal is liable to be reviewed and reversed by the Federal tribunals, and the power of paramount and final judgment rests with them. Gordon v. Longest, 16 Pet., 97. The same rule of exclusion applies in favor of a State or Federal Court which first gets possession of a case over which both have jurisdiction. Hagan v. Lucas, 10 Pet., 400; Taylor v. Carryl, 20 How., 583, 15 L. ed., 1028. The conditions prescribed having been complied with, the Act of Congress expressly required the State Court where it was originally pending, "to proceed no further in the suit." 224*] *The further proceedings of the Common Pleas was a clear case of usurped jurisdiction. The illegality was gross. The action of the District and Supreme Court of the State gave them no validity. The maxim, that consent cannot give jurisdiction, applied with full force. Gordon v. Longest, supra, is exactly in point and conclusive. 16 Pet., 97; Stevens v. Ins. Co., 41 N. Y., 149; Kanouse v. Martin, 14 How., 23, 15 How., 198; Hadley v. Dunlap, 10 Ohio St., 1. This brings us to the cardinal inquiry in the case. It is maintained by the counsel for the administratrix, that the order of removal by the Common Pleas was erroneously made, the first verdict and judgment being "final" within the meaning of the Act of Congress and the laws of Ohio. If the point be well taken the judgment must be affirmed. Otherwise it must be reversed. It is not denied that the requirements of the or the trial is the final one in the cause. It would be a strange anomaly if in equity and admiralty cases a final hearing only could take away the right of removal, while any trial, however interlocutory in its character, should have the same effect in an action at law. This would be in conflict alike with the letter, the spirit and the meaning of the Act, and would largely defeat the purpose of its enactment. It was intended to permit the removal at any time before a hearing or trial, final in the cause as it stood, when the application for the transfer was made. The proposition that the first judgment of the Common Pleas was final within the meaning of the laws of Ohio cannot be maintained. To say that there can be two final judgments upon the same pleadings, in the same cause, in the same court, and for exactly the same things, as the results of two successive trials, involves a solecism. If the first judgment was not final, the first trial could not have been so. When the demand for a new trial was made, and the requisite bond was given and approved, the case stood upon the docket in all respects as if a new trial had been granted for some error or defect in the former trial, irrespective of the laws in question, and as if no previous trial had taken place. It is true that the lien of the judgment was preserved, but that was an incident remaining after the principal thing had been put an end to. It was, like the bond, for the security of the plaintiff, and for no other purpose. The former affects the question of the finality of che first trial no more than the latter. The law of Ohio declares that the bond shall be "conditioned to the effect, that the party obtaining such second trial shall abide and perform the order and judgment of the court, and pay all money, costs and damages which may be awarded against him, consequent upon such second trial." The proceeding is thus designated and regarded as a "second trial." The judgment following-unless reversed or set aside is the one to be satisfied, and it must necessarily be the final and the only final one. The same remarks as to finality apply to the trial which preceded it. |