We understand that in this case all the parties interested on one side of the controversy, and all being citizens of other states than Texas, have applied for the removal as against the parties on the other side, who are all citizens of Texas. If this is so, then this case was properly removed under the first clause of section 2 of the act of 1875. If all the parties on one side have not applied for the removal, then the case was properly removed under the second clause of the second section of said act. And we take this occasion to remark that, in our opinion, the proceedings disclosed by the record in this case eminently justify the wisdom of the removal acts of the United States. The intervenors are conceded to be large lienholders against the defendant company j they reside in distant states. Without notice to them, on comparatively small liens, the property on which their liens rest is seized by the consent of the defendants and put in the hands of a. receiver to be, managed indefinitely. They have no remedy to assert in any other court than the one having custody of the their property. That court, in defiance of specific statutory rights, refuses to hear their claim] or adjust their rights. They may have had a. remedy hy appeal to the supreme court of the state, but it was wise policy, under the constitution and laws of the United States, to give them a choice of tribunals. "rnthe national courts they may hope to escape the local influence which sometimes disturbs the even flow of justice." See Davis v. Gray, 16 Wall. 203. The motion to remand in this case is denied.
,Circuit Court, N. D. Texa8. January, 1883.\
REMOVAL OF CAUSES
AmsING UNDER LAWS OF THE UNITED STATES. Cases arising under the laws of the United States are such as grow out of the legislation of congress, whether they constitute the right or privilege or claim or protection or defense of the party, in whole or in part, by whom they are asserted. A part of the plaintiff's case IS to make the United States marshal liallie for the acts of his deputy. If the marshal is liable, such liability ul.lder the laws of the United States, and must be tested by such laws.
UNITED STATES MARSHAL.
*Reported br Joseph P. Hornor, Esq.· of the New Orleans bar.
PROCESS FROM UNITED STATES COURTS.
A part of the defense of the marshal is In justifying under proC81l8 frmn the United States circuit court. The validity. force, and effect of such JUust be settled by the laws of the United States in reference thereto. Houser v. Clayton, 8 Woods 273. followed.
On Motion to Remand to State Court. The suit is one brought by the plaintiff, in the district court of Fannin county, against the defendant, as marshal of the northern district of Texas, for trespass in seizing (under certain writs of attachment issued from the United States circuit court of said dis... trict against one A. P. Ryan) a lot of goods belonging to plaintiff. The petition sets forth the alleged wrongful acts of the marshal in detail, specifically alleging that the actual wrongs were committed by one Clark, who was, and was acting as, a deputy of said Norton, marshal. The answer of the defendant alleges justification nndertha said writ of attachment, and that the property seized actually be. longed to and was the property of Ryan, the defendant in attachment. The petition for removal recites that the defendant, in doing the acts complained of, was acting as marshal of the northern district of Texas, under certain writs of attachment issued out of the United States circuit court for said district. W. B: Wright, for plaintiff. Crawford ct Smith, for defendant. PARDEE, J. The question presented by the motion to remand is whether the case arises under the laws of the United States. If it does so arise, then the cause was properly removed to this court. "Cases arising under the laws of the United States are such as grow out of the legislation of congress, whether they constitute the right or- privilege or claim or protection or defense of the party in whole or in part by whom they are asserted." A part of the plaintiff's in this action is to make Norton, marshal, liable for the acts of hill deputy, Clark. If Norton is liable, such liability arises under the laws of the United States and must be tested by such laws. In part, the defense of Norton, marshal, for the alleged trespass, is in justification under process from the United States circuit court. The validity, force, and effect of such process must be settled by the laws of the United States in reference thereto. So that it appears that the case for each party to this action is one that, under the rule aforesaid, arises under the laws of the United States. It is not disputed by counsel, and seems to be settled by the supreme court of the United States, that cases of trespass against
United States marshals in the state courts, where the marshals claim to have been acting under process from the federal courts, and the decision of the state cour.ts are against the validity of the process, may be carried by .writ of error to the supreme court, and then be reviewed under section 701), Rev. St. See Buck v. Colbath, 3 Wall. 334. In the case. of Houser v. Clayton, 3 Woods, 273, in a similar caSG to this now under consideration, Justice BRADLEY said:
" The defendants justify the alleged trespass under the authority of a court of the United States, and under the laws thereof. This presents a case arising under the laws of the United States, and is within the terms and meaning of second section of the act, of congress approved March 3,1875, entitled 'An act to determine the jurisdiction of circuit courts of the United States, etc.' 18 St. 470. Such a defense set up in a state court and overruled there would clearly entitle the defendant to carry the case by writ of error to the supreme t'ourt of the United States, both under the twenty-fifth section of the old juditial act, and, under the, act of 1867, passed in lieu thereof. But the onl;l· ground on which it could then be made reviewable by that court, is that it is a case arising under the constitution or laws of the United States; and if it is such a case, then it is removable to the circuit court of the United States under the second section of the act of supra."
The first clause of the second section of the third article of the constitution of the United States defines and limits the judicial power of the United States. The provision therein that it "shall extend to all cases in law and equity arising under this constitution, the law of the United States, and treaties made," etc., is the authority from which must be derived the jurisdiction of the supreme court to review such cases by writs of error. It is clear that such cases do not arise under the constitution nor under treaties. If they do not arise under the laws of the United States, the supreme court could not review them. Therefore, upon principle and authority, we hold that this case under consideration is one arising under the laws of the United States, and therefore removed properly to this court. The earnest and ingenious argument by the learned counsel in favor of the motion to remand has induced us to fully examine the question involved, but we think that the motion might well have been refused on the sale authority of Houser v. Clayton, 8upra. The motion to remand is denied.
PACIFIC RY. IMP. CO. V. METCALF.
PACIFIO Ry, IMP. Co. v. METCALF and others.(Circuit Oourt, N. D. l'fXlJas.
December, 1882.) TEXA8-bUPP.
JURISDICTION OF THE CIRCUIT COURT IN NOR'l'IiERN DISTRICT OF REV. ST. 415, 490, 550 i ACT OF MARCH 3, 1875.
The jurisdiction of the circuit. court for the northern district of Texas, so far is affected by the citizenship or residence of parties litigant, is not reo stricted by any of the provisions of the act of congress creating the northern district of Texas, (Supp. Hev. St.A15,) nor by any of. those of the acts amendatory thereof, (Id. 490, 650,) but is regulated by the provisions of the juris" diction act of March 3, 1875, (18 St. 470.)
On Demurrer to the Jurisdiction. Mr. Herman, for plaintiff. Mr, Stranghan, for dp.fendants. PARDEE, J. This suit is brought in this courtaJthisplace by the plaintiff, an alleged citizen of the state of Connecticut, against the defendants, alleged citizens of Palo Pinto county, in this district. The defendants demur to the jurisdiction of -the court, on the ground that under the act of congress creating the nort.hern district of Texas, (Supp. Rev. St. 415,) and the acts amendatory thereof, (Id. 490, 550,) the defendants, as citizens of Palo Pinto county, can only be sued in the circuit court of the northern district of Texas, at Graham, in said district, and that this circuit court; sitting at Dallas, has no jurisdiction over defendants as such citizens of Palo Pinto county. An examination of the said statutes brings us to the conclusion that all of the provisions of the said act, restricting the return of process in civil cases to particular places in said district, apply only to the district court; except, perhaps, for the county of Jackson, in the eastern, and certain counties in the western district. In fact, the original a.ct does not refer to the circuit courts, as then none were established for the northern district. The first amendatory act goes no further, so far as the circuit court is concerned, than to attach the newly-created district to the fifth cirlluit, and provide for the times when and the places where the circuit court for the district shall be held. The second amendatory act provides only with regard to the trial of criminal offenses. The general statute establishing circuit courts provides: "Circuit courts are established as followtl: one for the three districts of Alabama, one for the eastern district of Arkansas, one for the southern dis"Feported by Joseph P. Hornor, Esq., of the New Orleans bar.