But the poinhl involved have been fully discussed and settled by the United States supreme court in the cases of Barney v. Latham, 103 U. S. 205, and Blake v. McKim, ld. 336 j and hence these comments might have been spared, as they seek only to enforce the reasons and the rules therein expressed. The motion to remand is sustained.
GILMAN and others.
March 25, 1882.)
(Oircuit Oourt, D. Maine.
2 OF ACT OF MARCH 3, 1875, CONSTRUED. The first clause of this section, providing for the removal of causes into the circuit court, requires all the plaintiffs or all the defendants to have the right to remove the cause, but by the second clause anyone, either plaintiff or defendant interested, may petition if the controversy can be fully determined 1I8 to him. The first clause refers to an ordinary action at common law, where there is only one party on each side, and the second refers to suits Where there may be distinct controversies between different sets of plaintiffs and defendants.
SAME-MATTER IN DISPUTE.
The matter in dispute must at the time of filing the petition exceM $500, and if, by amendment in the state court, the amount has been reduced to less than that sum, the cause canoot be removed.
FRACTIONS OF A. DAy-MAXIM.
The ancient maxim that the law knows no fractions of a day is now known chiefly by its exceptions. When private rights depend upon it,courts will inquire into the hour at which an act was done, or a decree entered, or an attachment laid, or any title accrued.
LOWELL, C. J. The plaintiff, an attorney at law and citizen of Massachusetts, brought an action in the superior court for the county of Kennebec, Maine, against Anna K. Gilman, a citizen of New York, and Charles B. Gilman, a citizen of Maine, both of whom were served with process. The writ laid the damages at $1,000, npon an account annexed, for services amounting to $598.23. The action was entered at the December term, 1'880, when the defendant, Charles B. Gilman, demanded a jury trial, and Anna K. Gilman, on the thirteenth day of the term, filed a petition to remove the cause to this court, but filed no bOnd. On the twentieth day thEi plaintiff filed a motion to reduce the ad damnum of his writ to $500, which was granted at 3 o'clock in the afternoon, and at 4 o'clock of th&
MAINE V. GILMAN.
same· afternoon the defendant, Anna, filed her bond for removal, which was approved. The plaintiff moves to remand the' cause to the state court. The second section of the statute of 1875 contains two clauses, by the first of which, if there shall be a controversy between citizens of different states, either party may remove the cause; and by the second, if there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove the cause. It is not easy to give a reason for the inconsistency between two clauses of the same sentence or paragraph; but it exists! because in the first clause "either party" undoubtedly means all the plaintiffs or all the defend· ants; and in the second the language is clear that. anyone plaintiff or defendant interested in the particular controversy ma.y petition. The courts reconcile this conflict as well as they may by holding that the first clause refers to an ordinary action at common law, like the one at bar, where there is but one party on each side, no matter of how many persons that party may consist, and that in such actions the plaintiffs or defendants must act as a unit; and the second, to suits in equity where there may be distinct controversies between dif· ferent sets of plaintiffs or defendants. If this is the true meaning of the statute, this petition was insufficient, because it is made by only one defendant. See the Removal Cases, 100 U. S. 4.57; .Ruckman v. Palisade Land Co. 1 FED. REP. 367; Burke v. Flood, Id. 541; Smith v. McKay, 4 FED. REP. 353; Bybee v. Hawkett, 5 FED. REP. 1. The second reason given by the plaintiff for remanding the cause seems to be equally sound. The matter in dispute did not, at the time the petition was perfected by filing the bond, exceed $500. In the mode of pleading adopted in Maine the ad damnum binds the plaintiff as a maximum, and a judgment for more is erroneous, or, at least, if not·technically erroneous would be irregular and improper. Grosvenor v. Danfurth, 16 Mass. 74; Smith v. Keen, 26 Me. 411; Morse v. Sleeper, 58 Me. 329. It has been ably argued that the superior court had no power to permit such an amendment; or, if at all, not ex parte. I assume that it was ex parte, as counsel represent it, though the record does not disclose the fact. It is a common practice to permit a charge in the ad damnum by increase and by diminution. If the latter, there hardly seems any necessity for notice to the other party. At all events, it is within the discretion of the court to order notice or not in Buch 8
case. Hqll v. Williams, 10 Me. 278. It cannot injure the defendant to have the damages diminished, excepting that it would prevent his removing the cause to the circuit court. It may be taken for granted that this was the motive of the plaintiff in offering his amendment. But if it were so the motive is not illegal. The exense and delay attending a removal are thought by Judge Dillon to make the law harsh and undesirable in cases no larger than this. Dillon, Removal of Causes, § 52. In the much more objectionable case of a remittitur after verdict the court may sometimes allow it, with the admitted purpose of preventing an appeal. Thompson v. Butler, 95 U. S. 694. The amendment may be made in due season. The law supposes that the petition and bond will be filed together, and declares that it shall be "the duty of the state court to accept said petition and bond, and proceed no further in such suit." 18 St. 471. There is no objection to filing the petition' first, but it has no effect upon the jurisdiction of the state court until the bond is presented. It is insisted that the law knows no fractions of a day. But this ancient maxim is now chiefly known by its exceptions. When private rights depend upon it, the courts inquire into the hour at which an act was done, or a decree was entered, or an attachment was laid, or any title accrued. Nat. Bank v. Burkha,rdt, 100 U. S. 686; Wydown's Ga,se, 14 Ves. Jr. 80; Re Wynne, Chase, 227; Westbrook Go. v. Grant, 60 Me. 88; Re London et Devon B. Go. L. R.12 Eq.190; Re Pettit, L. R. 1 Ch. D. 478. The crown in England has a prerogative to be conclusively presumed the first to have acquired a right on a given day. Reg. v. Edwards, 9 Ex. 32. And there is some doubt whether the hour at which a statute became law can he proved, though I think it may. See Richardson's Gase, 2 Story, 571; Kennedy v. Palmer, 6 Gray, 316; Lapeyre v. U. S. 17 Wall. 191, and cases there cited. Case remanded.
STATE OF GEORGIA v. BOLTON. STATE GEORGIA BOLTON and another.-
(Circuit Court, N. D. Georgia. March, 1882.)
REMOVAJ,-CRIMINAI, PROSECUTION-HEV. ST. §
643. A criminal prosecution is commenced, within the meaning of section 643 of the Revised Statutes, as soon as a warrant has been issued, and is then removable into the United States circuit court.
The defendants were United States deputy marshals, and were arrested under warrants issued by the state authorities for the alleged killing of Jackson Hicks, in Gwinnett county, whom they were attempting to arrest for illicit distilling. Prior to their examination they petitioned this court for writs of certiorari and habeas corpus, cum causa, under section 643 of the Revised Statutes, to remove the proceedings into this court, and to take the persons of the defendants out of the custody of the state officials into that of the United States marshal, and the attorney general of the state of Georgia resisted the petition on the ground that it was premature, no indictment having been yet found against the prisoners. Clifford Anderson, Atty. Gen., for plaintiff. J. S. Bigby, U. S. Dist. Atty., for defendants. Before PARDEE, C. J., and BOARMAN, D. J., of the western district of Louisiana, sitting in the vacancy in the northern district of Georgia, under Rev. St. 591. PARDEE, C. J. After an examination of all the authorities cited and to be found, we are constrained to follow the decision of Judge Woods in the Red Oak Cases, reported in 3 :B'ED. REP. 117. State v. Port. The learned attorney geneJ:al, who has favored us with an argument, admits the constitutionality of section 643 of the United States Revised Statutes in question, but makes his whole contention upon the ground that the attempted removal is prematurebefore indictment hund. The decision of Judge Woods referred to is directly in point, for it was rendered in a case identical in all its features with the one at bar. Aside from the weight to be given to a decision rendered by a judge of such high standing, it is to be considered that Justice Woods is now the circuit justice of this court; and for us to dissent from his conclusions in such a matter would be to render the practice of the court in a very important class of cases unsettled and uncertain. But we take it that the decision in question is right, and supported by the law and reason of the case. Counsel
*Heported by Joseph P. Hornor, Esq., of the New Orleans bar.