cretion arising upon the foregoing statement were transferred by LADD, J.

Ray & Drew and Geo. A. Bingham, for the plaintiff.

Fletcher & Heywood and Burns & Heywood, for the defendants.

FOSTER, C. J., C. C.1-The defendant filed his petition for the removal of this cause into the United States court at the November Term of our Circuit Court 1874. His rights in respect of the removal of the cause, therefore, depend upon the provisions of the Revised Statutes of the United States, enacted June 22d 1874, and the subsequent Act of Congress of March 3d 1875, and not upon the provisions of the Acts of 1866 or 1867, which were repealed by the enactment of the Revised Statutes. The propriety of the rescission by the judge presiding at the April Term 1875, depends upon the settlement of the question whether the defendant was entitled, under the federal statutes, to have the cause removed, after one trial upon its merits, before a second trial, which had been ordered by the full bench for error in the previous trial.

By the terms of the United States Revised Statutes, ch. 7, sec. 639, par. III., the petition for removal must be filed "before the trial or final hearing of the suit."

In Whittier v. The Hartford Fire Ins. Co., 55 N. H. 141, at the last March session of this court, my brother SMITH, the other judges concurring, expressed his interpretation of the language. used in the statute as meaning, not before the final trial or final hearing, but before any trial or any final hearing of the suit.

In Insurance Co. v. Dunn, 19 Wall. 214, in construing the Act of Congress of 1866, in which the words used were the same as those adopted in the revision of 1874-" at any time before the trial or final hearing"-SWAYNE, J., said," The language above quoted at any time before the final hearing or trial of the suit'of the Act of March 2d 1867, is not of the same import as the language of the Act of July 27th 1866, on the same general subject at any time before the trial or final hearing;'" and his deduction is, that under the Act of 1867 a removal might properly be made, after a trial on the merits and a judgment on the verdict, in a state where by local statute the party could still demand, as of right, a second trial, but that doubts, at least, might be enter

'LADD, J., having presided at the trial, did not sit.

tained as to whether such would be the proper construction of the Act of 1866; and if, as he suggests, the change was deliberately made in 1867 to obviate those doubts and to make the latter act more comprehensive, so it is equally fair to presume that the change in 1874 to the language used in the Act of 1866 was deliberately made, not to revive "doubts that might possibly have arisen" under the Act of 1866, but to make the latter act (of 1874) more restrictive.

Happily, no doubts can remain concerning the present intention of Congress to limit the removal of causes from the state to the federal courts to a period antecedent to the first trial of the suit; for the Act of March 3d 1875, sect. 3, provides that the petition for removal shall be filed in the state court "before or at the term at which said cause could be first tried, and before the trial thereof."

This act was passed some weeks before the judge made the order of rescission in the present case, and this declaration of the law and policy of the federal Congress manifests the prudence of the judge's order, so far as the matter rested in his discretion.

In Whittier v. Insurance Co., the petition for removal was made after a trial and judgment, unreversed by the proceedings in review: but the distinction between that case and the present is one without substantial difference, as it seems to me, for in this case, as in that, the defendant, the verdict against him having been set aside, was as much entitled to demand a new trial as in the former case the party was entitled to demand it under the statute granting a right of review. In both cases there was one trial of the cause upon its merits before application for removal, and in neither case was that one trial a final trial. In Whittier v. Insurance Co., the petition for removal was denied.

In Galpin v. Critchlow, 13 Am. Law Reg. (N. S. )137, it was decided that an action cannot be removed from a state court into the Circuit Court of the United States under the Act of Congress of 1867, after a trial on the merits, although such trial has resulted in a disagreement of the jury.

A fortiori, if the reasoning of Judge SWAYNE and my brother SMITH is correct, such cause could not, in the same circumstances, be removed under the Act of 1866.

It will be borne in mind that the terms used in the Act of 1866

are "before the trial or final hearing;" those employed in the Act of 1867 are "before the final hearing or trial."

In Galpin v. Critchlow, Mr. Chief Justice GRAY does not contend that these terms are not equivalent. They are, in fact, whatever may have been the intention of the legislators, mere transpositions in the two several acts. And, regarding the words under consideration as practically synonymous, the learned chief justice infers that the Act of 1866 (and 1867 likewise) "has regard, to suits in equity as well as at law;" because it enlarges the right of removal under the Act of 1789 (which was “at any time before trial"), by conferring the right in suits brought "for the purpose of restraining or enjoining" the defendant. In the Act of 1866, ch. 288, we find for the first time, if I am not mistaken, the words "or final hearing of the cause" added to the words "at any time before the trial."

"Trial," says Mr. Chief Justice GRAY, "appropriately designates a trial by the jury of an issue which will determine the facts in an action at law; and 'final hearing,' in contradistinction to hearings upon interlocutory matters, and hearing of the cause upon its merits by a judge sitting in equity. The whole effect of the change in the statute in this respect seems to us to have been to allow the defendant the same time to elect whether he will remove the case into the federal court, as he has to prepare for a trial at law, or hearing upon the merits in equity in the state court; *** but not to allow him, after the experiment of entering upon one such trial or hearing in the court in which the suit is commenced, to transfer the case to another jurisdiction."

The learned chief justice "cannot believe that Congress, by transposing" the words, "intended that a right of removal depending upon a mere affidavit of the party to a condition of things which litigants are too often prone to suspect, and conferred by this statute upon a plaintiff who has voluntarily resorted to the state court, as well as a defendant who has been compelled to appear therein to protect his rights, should be exercised after once submitting the case to be decided in the state court upon its merits, and at a later stage than any other suit is authorized to be removed from the state to the federal courts, except by writ of error after judgment."

Judge REDFIELD, in a note appended to this case, as reported in the Law Register, commends the opinion not only for the " inge

nious and happy argument" presented therein, but for its "fairness and dignity," calculated, as the conclusion of the court is, " to maintain proper respect for the spirit of the national legislation in general, especially towards the state courts."

In holding that the ruling of the judge at nisi prius, rescinding the order for a removal of this cause before the intervention of a terin of the federal court at which it would have been entered, was right in point of law and sound discretion, we do no more than declare, without arrogance or assumption, that, except by writ of error from the Supreme Court of the United States, whose judgment is conclusive upon all the judicial tribunals of the land, the jurisdiction of our own state courts is not to be reduced to "very inferior and insignificant proportions."

If the views which I have expressed are sustained by my brethren, the defendant's exceptions must be overruled.

CUSHING, C. J., and SMITH, J., concurred.

Supreme Court of Ohio.

JONES, STRANATHAN & CO. v. WILLIAM GREAVES.

On the trial of a civil action, wherein the claim or defence is based on an alleged fraud, the issue may be determined in accordance with the preponderance or weight of evidence, whether the facts constituting the alleged fraud do, or do not, amount to an indictable offence.

MOTION for leave to file a petition in error to the District Court of Muskingum county.

The original action was brought by William Greaves against Jones, Stranathan & Co., to recover a balance alleged to be due to the plaintiff for labor and materials in tin-roofing a storehouse of defendants under a special contract. The contract, as the plaintiff claimed, designated the material to be used as "the best quality of roofing-tin;" but the defendants claimed that the contract required "ix charcoal tin" to be used. The latter is the better quality of tin, and worth four dollars per box more than the former. The contract was entered into in this way: The defendants proposed for bids in writing, specifying the quality of the material to be furnished for the roof by the bidder; the plaintiff's bid was $1100, which bid the defendants accepted and promised to pay. Afterward, the plaintiff purchased tin of the quality

known as "the best quality of roofing-tin ;" whereupon the defendants objected to the use of this quality of tin, unless the plaintiff would agree to abate from the contract price four dollars per box of tin. The plaintiff agreed to the reduction and used the material so purchased in making the roof. Afterward the plaintiff refused to accept in payment less than the original contract. price, on the ground that his agreement to abate the four dollars per box was obtained by the fraudulent acts and representations. of the defendants. The fraud practised by the defendants, as claimed by the plaintiff, was thus: That after the making of the original contract, the defendants fraudulently altered the written proposal for bids, by inserting therein the words "ix charcoal tin," and afterwards induced the plaintiff to believe that the specification of materials, at the time plaintiff's bid was made, required the furnishing of the better and higher-priced quality of tin.

This question of fraud was put in issue by the pleadings, and testimony was offered, on the trial, tending to prove the issue on both sides.

The Court of Common Pleas was requested by the defendants to charge the jury that before they could find the defendants guilty of the fraud alleged, they must be satisfied from the evidence, beyond a reasonable doubt, that the fraud had been committed. This request the court refused to give, but did charge that a preponderance of evidence would be sufficient to prove the same. Exceptions were taken. Verdict and judgment were rendered for the plaintiff. On error, the District Court affirmed the judgment below; and the only matters assigned for error here relate to the refusal of the Common Pleas to charge as requested and to the charge as given.

Evans & Beard, for the motion.

M. M. Granger (with whom was D. B. Gary), contrà.

The opinion of the court was delivered by

MCILVAINE, C. J.-There is no doctrine of the law settled more firmly than the rule which authorizes issues of fact in civil cases to be determined in accordance with the preponderance or weight of the evidence. The reason of the rule no doubt is, that as between man and man, where a loss must fall upon one or the other, it is right that the law should cast it upon him who is shown to have

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