the residence of the general and special partners. 17

6. Contribution of Special Partner to Capital.-Where the certificate states that the contribution of the special partner to the capital of the concern has been paid in cash, nothing short of an actual cash payment will be regarded as a substantial agreement with the statement made; not a payment in bonds, though of such a character as to be generally regarded as the equivalent of cash, and though there was afterwards actually realized upon them for the benefit of the firm a sum greater than the amount of cash required; 18 nor in notes, though afterwards paid to the firm; 19 nor in a stock of goods; nor in a check dated several days ahead of the time when the certificate was signed, though in fact paid on the day of its date, before the future day fixed by the certificate for the commencement of the partnership.21

20

If the special partner actually pays in the requisite amount of cash, with the intent that it shall abide the vicissitudes of the business, the validity of his position as special partner will not be affected by the fact that he procured the money from the general partner by the sale to him of a stock of goods at a price 25 to 50 per cent. greater than their actual value; that this was done with a view to the formation of the special partnership, and to enable him to contribute the required cash to the capital, will not render him liable as a general partner. 22 Nor where the special partner has paid his contribution in cash, will the misappropriation of it by the general partner, render him liable as a general partner. 23

In the absence of a specific provision in the statute to that effect, there is no requirement that the special partner's contribution should be paid in cash. But if it is paid in property, the fact should be so stated in the certificate, and the cash value of the property given.24

17 Lachaise v. Marks, 4 E. D. Sm. 610.

18 Haggerty v. Foster, 103 Mass. 17. See also Van Ingen v. Whitman, 62 N. Y. 513.

19 Pierce v. Bryant, 5 Allen, 93.

20 Haviland v. Chace, 39 Barb. 283; Richardson v. Hogg, 38 Pa. St. 153; Vandike v. Rosskam, 67 Pa. St.

330.

21 Durant v. Abendroth, 9 Jones & Sp. 53; s. C,, 69 N. Y. 148.

22 Lawrence v. Merrified, 10 Jones & Sp. 37. 23 Seibert v. Bakewell, 87 Pa. St. 506.

24 Holliday v. Union Bag Co., 3 Col. 342,

PROMISE TO MAKE A WILL-ROBERTS v. HALL.

The judgment of the Divisional Court of the Chancery Division, or rather of the learned chancellor, who delivered the principal judgment, is interesting among other things from its reference to a surprising dictum of the English Court of Appeal in Alderson v. Maddison,1 where Baggallay, L. J., delivering the judgment of the court, says: "It appears to us that to give the same effect to a man's promise and agreement to make a will as to a will made by him in pursuance of such promise or agreement, would be in direct contravention of the provisions of the statute." In Roberts v. Hall, in the court of first instance, Ferguson, J., referred in his judgment to this dictum, without expressing either approval or disapproval of it, as, indeed, it was unnecessary to do, inasmuch as, in his view of the case the only agreement which he considered proved was contrary to public policy and illegal, and the court, therefore, could not under any circumstance recognize In the Divisional Court, however, Boyd, C., in the judgment noted in our last number, says: "The current of authorities enabling the court to give effect in a proper case to an agreement to dispose of by will, or to leave a man's property at his death, is too well established to justify giving effect to the dictum to the contrary in Alderson v. Maddison.2

In Roberts v. Hall, the parents of the plaintiff, in 1846, entered into a written agreement with one Hall and his wife, whose representatives the plaintiffs were, by which they agreed to give their daughter, the plaintiff, then six years old, to Hall and his wife, who were to adopt her as their own child, and to make her sole heir to their property. The evidence showed that the adoption took place, and the plaintiff thenceforward and always discharged all the duties devolving upon her in the new family to the entire satisfaction of the deceased; that all that a child could do for a parent was fulfilled by the plaintiff down to the death of both Hall and his wife. Thus all that was engaged to be done on the part of the plaintiff and her own

1 L. R., 7 Q. B. D 181.

2 Supra.

proper parents had been done. It also appeared that the adoption agreed upon between the parents of the plaintiffs and the Halls, was unquestionably calculated to advance the interests of the plaintiff. Under these circumstances the Divisional Court held the agreement was not illegal as against public policy, and being executed, so far as the plaintiff was concerned, the court could decree the performance of the rest of in in specie, although it could not have decreed specific performance while the agreement was executory on both sides. They therefore declared the plaintiff entitled to a declaration that the property, real and personal, of which the Halls died possessed, was impressed with a trust in the plaintiff's favor.

3

In Alderson v. Maddison, in the court of first instance, the judgment of Stephens, J., amounts to a sort of treatise on the subject of representations and promises as to making a will. In that case the finding of the jury at the assizes had been that the defendant was induced to serve the father of the plaintiff, who claimed as heir-at-law, as his housekeeper without wages for many years, and to give up other prospects of establishment in life by a promise made by him to her to make a will leaving her a life estate in a certain faim if, and when it became his property. Stephens, J., held that a contract to leave the plaintiff the life estate was established, and that there had been sufficient part performanee on the part of the defendant to bar the Statute of Frauds, and gave judgment accordingly. The Court of Appeal reversed this judgment on the ground that there had not been such a part performance as excluded the statute, but it did not, except as regards the dictum referred to in Roberts v. Hall express dissent from the general principles of law laid down by Stephens, J., in the court below in respect to representations and promises to make a will in a certain way.

4

Stephens, J., says that the law on the subject is clear and consistent when "all the decisions' are considered, and is to this effect. A mere representation which is not a term in a contract, nor yet an estoppel, is not binding. He says, "There is a class of representations which have no legal effect. There are cases in which a person excites expectations which

3 L. R., 5 Ex. D. 293 (1880).

4 L. R., 7 Q. B. D. 174; s. c., 30 L. J. (N. S.) 466.

6

8

he.does not fulfil, as, for instance, where a person leads another to believe that he intends to make him his heir and then leaves his property away from him. Though such conduct may inflict greater loss on the sufferer than almost any breach of contract, and may involve greater moral guilt than many common frauds, it involves no legal consequences unless the person making the representation not only excites an expectation that it will be fulfilled but legally binds himself to fulfil it; in which case he must, as it seems to me, contract to fulfil it." Thus, after reviewing such cases as Jorden v. Money, Maunsell v. Hedges, Caton v. Caton, and Dashwood v. Jermyn, in which representations, whether as to wills or other disposition of property, have been held not to be binding, he says: "All of these are cases in which the language used was considered to amount to nothing more than a declaration of what the parties influenced by it knew, or ought to have known, to be no more than a present revocable intention. Such declarations, no doubt, in many cases raised natural expectations which induced the parties to whom they were made to take irrevocable steps; but in such case the decision turned on the question whether the declaration was intended to form part of a contract or only to announce a present revocable intention, or (which is the same thing) to make a promise for which there was no consideration." On the other hand, after reviewing such well known cases as Hammersley v. De Biel,9 Prole v. Soady, 10 Loffus v. Maw,11 Coverdale v. Eastwood, 12 he says that the result he draws from them is that whenever representations have been held to be binding, the circumstances were such as to show that all the conditions of a valid contract had been fulfilled, and that in all the cases in which representations have been held not to be binding, one or more of these conditions were absent.

In our own courts, the cases on the subject of representations as to intentions of giving, devising or bequeathing, are entirely in ac

55 H. L. C., 185.

64 H. L. C., 1039.

7 L. R., 2 H. L. 127. 8 L. R., 12 Ch. D., 776. 9 12 Cl. & F. 45.

10 2 Giff. 1.

11 3 Giff. 592. 12 L. R. 15 Eq. 121.

cordance with the view of the law thus set out by Stephen, J., in Alderson v. Maddison. Thus in McKay v. McKay, 13 where the plaintiff rested his case on a verbal promise to give land to him, Mowat, V. C., says: "A mere intention, though expressed, as to a future disposition of a man's property, creates no legal obligation upon him to carry out that intention; and until the intended gift is made, he may change his mind respecting it. But it is contended that there was more than an intention; that there was an agreement, and an agreement followed by possession." Again, in Fitzgerald v. Fitzgerald, 14 in which Spragge, C., discusses Hammersley v. De Biel, Jordan v. Money, Loffus v. Maw, and Maunsell v. Hedges, he says: "It can not, I think, be held to be the law of this court, that it will aid a party only in cases where the representation is in regard to existing facts; though that seems to have been the opinion of the majority of the law lords in Jordan v. Money. The case seems to have gone off upon another point. On the other

hand, there may be a mere representation of intention. If such a representation be acted upon, it is acted upon in the expectation only of the continued good will of the party expressing such intention." He then quotes with approval, as does Stephens, J., in Alderson v. Maddison, the words of Lord Cranworth in Maunsell v. Hedges, where he says: "A representation may be so made as to constitute the ground of a contract. But is it so

amounting to an engagement, that if he would leave Brampton, where he was then residing, and remove with his family to the place where he, the father, was living, he would, by his will, leave to him the north halves of the lots." So in Orr v. Orr, 15 Blake, V. C., after referring to Jordan v. Money, Maunsell v. White, Hammersley v. De Biel, Bold v. Hutchinson, 16 and Kay v. Crook,17 says: "The deduction from these cases seems to be that where the representation is not of an existing fact, but of a mere intention, or where a promissor will not bind himself by a contract, but gives the other party to understand that he must rely solely on his honor for the fulfilment of his promise, the court will not enforce the performance of the representation or promise. A representation which amounts to a mere expression of intention must be distinguished from a representation which amounts to an engagement." In accordance with this is al

so Black v. Black. 18

In such cases, therefore, the question would appear to be, (1) whether there has been such an expression of intention as amounts to a contract; (2) whether, if so, and if the intention expressed relates to a future gift or devise of land, there has been such a part performance, or such a memorandum in writing as takes the case out of the Statute of Frauds. What amounts to such a part performance as will take a case of this kind out of the Statute of Frauds, opens too wide a subject to be entered on here, but it may be observed that it is the main question which was dealt with by the Court of Appeal in Alderson v. Maddison, when that case came before it. As contended by counsel for the plaintiff in Roberts v. Hall, before the Divisional Court, there is nothing more contrary to the spirit of the Wills Act in an agreement to make a will, than there is contrary to the acts relating to conveyances in an agreement to make a deed.—Canadian Law Journal.

15 21 Gr., at p. 445.

16 3 Sm. & G. 407. 175 De G. M. & G. 558. 18 2 Er. & A. 419.

13 15 Gr. 371 (1868).

14 20 Gr. 410 (1873).

REMOVAL OF CAUSES-FAILURE TO FILE TRANSCRIPT— CITIZENSHIP-JURISDIC

TION.

NATIONAL STEAMSHIP CO. v. TUGMAN,

United States Supreme Court, October Term, 1882.

1. The individual members of a corporation, created by the laws of a foreign 8tate, are, for purposes of suit by or against it in the courts in the Union, conclusively presumed to be citizens or subjects of such foreign State.

2. It is sufficient, in a suit in which the jurisdiction of a circuit court of the United States depends upon the character of the parties, if their citizenship is shown. affirmatively, by the record. Such citizenship need not necessarily be set out in the petition for the removal of the suit from the State court.

3. Upon the filing of the petition and bond required by the statute-the suit being removable-the jurisdiction of the State court absolutely ceases, and that of the circuit court immediately attaches, in advance of the filling in the latter of the transcript from the former. All orders thereafter made in the State court are coram non judice, unless its jurisdiction is in some form actually restored.

4. A failure to file the transcript within the time prescribed by the statute does not have the effect to restore the jurisdiction of the State court.

5. Whether, in the absence of a complete transcript, or when one has not been filed in proper time, the circuit court will retain jurisdiction, or dismiss or remand the suit to the State court, is for the former to determine.

6. After the filing of a petition and bond for the removal of a suit, pending in one of the courts of New York, and after that court had ruled that the suit was not removable, and that the cause should there proceed, the party seeking the removal consented to an order requiring the issues to be heard and determined by a referee, selected by the parties, and thenceforward contested the case as well before the referee as in the courts of the State up to final judgment: Held, that the jurisdiction of the State court was not thereby restored, and that the consent to the order of reference was to be deemed as only an expression of preference for that one of the several modes of trial authorized by the laws of the State. Held, also, that the objections interposed by the removing party to the exercise of jurisdiction by the referee and the State court, subsequent to the filing of the petition and bond added nothing to the legal strength of its position on the question of removal.

In error to the Supreme Court of the State of New York.

Mr. Justice HARLAN delivered the opinion of the court:

The underlying question in this case is whether, within the meaning of the Constitution and of the statutes determining the jurisdiction of the circuit courts of the United States, and regulating the removal of causes from State courts, a corporation created by the laws of a foreign State, may, for the purposes of suing and being sued in the courts of the Union, be treated as a "citizen" or "subject" of such foreign State?

In Ohio, etc. R. Co. v. Wheeler, 1 Black, 296, the court, speaking by Chief Justice Taney, said, that in the previous case of Louisville, etc. R. Co. v. Letson, 2 How. 497, it had been decided, upon full consideration, "that where a corporation is created by the laws of a State, the legal presumption is that its members are citizens of the State in which alone the corporate body has a legal existence; and that a suit by or against a corporation, or in its corporate name, must be presumed to be a suit by or against citizens of the State which created the corporate body; and that no averment or evidence to the contrary is admissible, for the purpose of withdrawing the suit from the jurisdiction of a court of the United States." Marshall v. Baltimore, etc. R. Co., 16 How. 314; Covington Drawbridge Co. v. Shepherd, 20 How. 232; Ins. Co. v. Ritchie, 5 Wall. 542; Paul v. Virginia, 8 Wall. 178; Railroad Co. v. Harris, 12 Wall. 82.

To the rule thus established by numerous decisions the court adheres. Upon this branch of the case it is therefore only necessary to say that if the individual members of a corporation, created by the laws of one of the United States, are, for the purposes of suit by or against it in the courts of the Union, conclusively presumed to be citizens of the State by whose laws that corporation is created and exists, it would seem to follow, logically, that members of a corporation, created by the laws of a foreign State, should, for like purposes, be conclusively presumed to be citizens or subjects of such foreign State. Consequently, a corporation of a foreign State is, for purposes of jurisdiction in the courts of the United States, to be deemed, constructively, a citizen or subject of such State.

But it is suggested that the petition for the removal of the action into the circuit court of the United States is radically defective in that it does not show that the National Steamship Company was a corporation of a foreign State at the commencement of the action; that the allegation upon that point refers only to the time when the removal was sought. If, in suits in which the jurisdiction of the courts of the United States depends upon the character of the parties-it is material, under the act of March 3, 1875, to show what the citizenship of the parties was at the commencement of the action, it is sufficient to say that the averment in the original complaint, that the company is a foreign corporation, supplemented by the agreement in the petition for removal, that it is a corporation created by, and existing under, the laws of the United Kingdom of Great Britain and Ireland, covers the whole period from the commencement of the action to the application for removal. It is not always necessary that the citizenship of the parties be set out in the petition for removal. The requirements of the law are met if the citizenship of the parties to the controversy sought to be removed is shown affirmatively by the record of the case. Railway Co. v

Ramsay, 22 Wall. 322; Robertson v. Cease, 97 U S. 648.

The only remaining question which need be considered is whether the jurisdiction of the State court was, in form, restored, after the company filed its petition and bond for removal. The defendant in error insists that it was. The petition was accompanied by a bond which, it is conceded. conformed to the statute, and was ample as to security. Upon the filing, therefore, of the petition and bond-the suit being removable under the statute the jurisdiction of the State court absolutely ceased, and that of the circuit court of the United States immediately attached. The duty of the State court was to proceed no further in the cause. Every order thereafter made in that court was coram non judice, unless its jurisdiction was actually restored. It could not be restored by the mere failure of the company to file a transcript of the record in the circuit court of the United States within the time prescribed by the statute. The jurisdiction of the latter court attached, in advance of the filing of the transcript, from the moment it became the duty of the State court to accept the bond and proceed no further; and whether the circuit court of the United States should retain jurisdiction, or dismiss or remand the action because of the failure to file the necessary transcript, was for it, not the State court, to determine.

Nor was the jurisdiction of the State court restored when the company, subsequently, consented to the order requiring the issues to be heard and determined by a referee selected by the parties, or when it appeared and contested the case, as well before the referee, as in the State courts, up to final judgment. The right of the company to have a trial in the circuit court of the United States became fixed upon the filing of the petition and bond. But the inferior State court having ruled that the right of removal did not exist, and that it had jurisdiction to proceed, the -company was not bound to desert the case, and leave the opposite party to take judgment by default. It was at liberty, its right to removal being ignored by the State court, to make defense in that tribunal in every mode recognized by the laws of the State, without forfeiting or impairing in the slightest degree its right to a trial in the court to which the action had been transferred, or without affecting, to any extent, the authority of the latter court to proceed. The consent, by the company, to a trial by referee was nothing more than an expression of its preference-being compelled to make defense in the State court-for that one of the several modes of trial permitted by the laws of the State. It is true that when the cause was taken up by the referee, as well as when heard in the Supreme Court of the State and in the court of appeals, the company protested that the circuit court of the United States alone had jurisdiction after the petition and bond for removal were filed. But no such protests were necessary, and they added nothing whatever to

When the

the legal strength of its position. State court adjudged that it had authority to proceed, the company was entitled to regard the decision as final, so far as that tribunal was concerned, and was not bound, in order to maintain the right of removal, to protest, at subsequent stages of the trial, against its exercise of jurisdiction. Indeed, such a course would scarcely have been respectful to the State court after its ruling upon the point of jurisdiction had been made.

What we have said upon this subject is fully sustained by our former decisions, particularly Railroad Co. v. Koontz, 104 U. S. 5; Railroad Co. v. Mississippi, 102 U. S. 136; Kern v. Huidekoper, 103 U. S. 485 [13 Cent. L. J. 168, 292]; and Ins. Co. v. Dunn, 19 Wall. 214.

The judgments herein of the Court of Appeals of New York, and of the Supreme Court of New York are reversed, and the cause is remanded, with directions that the latter court accept the bond, tendered by plaintiff in error, for the removal of the cause to the Circuit Court of the United States for the Eastern District of that State, and to proceed no further in the cause.

CORPORATION-DISSOLUTION BY COURT OF EQUITY-RIGHTS OF STOCKHOLDER.

STRONG V. McCOGG.

Supreme Court of Wisconsin, October 31, 1882.

1. Independent of the statute, and at common law, a court of equity had no power to dissolve a corporation, and sell and divide its property, at the suit of an individual stockholder, in his own behalf and in his

own name.

2. There is no statute in this State authorizing one of several stockholders to maintain a bill in equity in his own name, or in the name of the State, without leave being first granted therefor by this court, to dissolve a corporation, and convert its property into money, and then divide the same among a portion of the stockholders; and, in the absence of such a statute, such a suit cannot be maintained,

Appeal from Circuit Court, Lafayette County. Moses M. Strong and S. U. Pinney, for respondent; Orton & Osborn, for appellant.

This is an action by the plaintiff as one of the stockholders of the Oakland Mining Company against that company and over twenty of its alleged stockholders, including appellant and James H. Earnest, for the purpose of determining the names of the stockholders, the number of shares owned by each upon the production of the certificates, and for judgment that the corporation had forfeited its corporate rights, privileges and franchises, and that the same be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved; that a receiver be appointed,