He refers to Lewi, v. Smythe, 2 Wood, 117. This authority is not quite up to the text, but Judge Wood, in his opinion, uses this very suggestive language:
"By the word' trial,' as used in this statute, (1875,) I do not understand the argument, investigation, or decision of a question of law merely, unless it is decisive of the trial, and the decision results in a final judgment or decree. The decision of a court, on a demurrer, for instance, or on exceptions to the sufficiency of a plea, which is followed by amendment or new pleadings, and which does not cure the case, is not the trial meant by the statute."
If, however, the decision of the question of law does, as in this case, end the case in a final judgment, would it not, in the opinion of the lflarned judge, have been a trial within the meaning of the act of 18751 We conclude that the removal in this case was not before the mat 'rial, and the case should, be remanded. '
BROOKS tI. BAIJ,EY.
(Oirr.1Jlt Oourt, D. Ver1nMt.
October Term, 1881.)
CIRCUIT CoURT JURISDICTION-CITIZENSHIP.
In 8 suit which has been brO,ught in 8 circuit court of the Uniterl <:ltates, immaterial, so far as the jurisdiction of the court il'l concerned, of w' H lone of the states the plainti1f is a citizen, provided parties ai'll citizena lit dilIerent states.
In Equity. Eleazer R. Hard, for plaintiJI. George Wilkins and Henry Boilard, for. defendnnt. WHEELER, D. J. This is a bill in equity in which the orator sets himself up as of Boston, in the state of Massachusetts, and a citizen of that state, and the defendant as of Stowe, in the state of Vermont, and a citizen of that'state. The defendant has pleaded that at the time of the bringing of the bill he was, and now is, a citizen of the state of New Hampshire, and that neither he nor the orator then was or now is a citizen of the state of Vermont; and this plea has been argued. By the provisions of the constitution the judicial power of the United States was made to extend to controversies between citi. zens of different states. Article 3, § 2. By the judiciary act of 1789, congress conferred llpon the circuit courts jurisdiction of all suits of a civil nature, at common law or in equity, of the required amonnt, ootween a citizen of the state where the suit is brought and a citizen of another state. Chapter 20, § 11; 1 St. at Large, 78.
BROOKS V. BAILEY.
At the same time, it was provided that no civil suit should be brought therein against an inhabitant of the United States by original process in any other district than that whereof he should be an inhabitant, or wherein he should be found, at the time of serving the writ. Id. Thes,e provisions continued iulorye until the act of March 3, 1875. Rev. St. § 629; Id. § 739. . The former was the law which conferred jurisdiction in this 'class of cases; the latter was a .limitation upon the place where suits might be brought for the ease of defendants. Both were op"rative in determining where the place might be. McMicken v. Webb, 11 Pet. 25. The act of March 3" t875, extapded the jurisdiction to all suits of a civil nature, at common law or in equity, of the required amount, in which there should be a con- / trQversy between citizens of different states, without limiting it to of either party in the state wlJ.er.e the depend at all .be brought; but retQ,ined the limitation upon the bringiQg.of .suits in other distri!}ts than that whereof the defendant should I>:e..aQ.inhabitant or in which he should be found. It has been argued that because this liIl\itJl,tiop. is in substantially the same language in the act of 1875 that it was in the act of 1789, it must receive substantially same oonl;ltruction that it. had always borne.. This would be correct.if it were to .be applied to the same jurisdiction otherwise conferred; but it is not. This provision in the act of 1789; was only to be applied in determining in which distriot of the two states, between whose citizens jurisdiction of suits was given,' the suit,must be brought. In th.e act of 1875 it is to be applied in deterIDining in which,qistrict of all the states, between the citizens of any two of which juris:diction of suits is given, the suit must be Under the latter act this court, in common with other circuit courts, has jurisdiction of all suits, of the required amount, between citizens of different states among all the states, while under the former it had jurisdiction only of suits between citizens of this state and those of some other of all the states. The suit could be brought only in the under either. 'l;.'hat district where the,gefendant resided or this defendant was found in this district when the process was served is not denied, and therefore the right to bring the suit in this district " is not denied. <Plea. overruled. Defendant to
(Diatrict Oourt, No D. Ohio, E. D. November 26,1881.)
BANKRUPTcy-DrscHARGE-ApPLICATION TO ANNUL-AMENDMENT.
An application for leave to contest the validity of a discharge in bankruptcy cannot be after the expiration of two years from the date of the discharge, by adding another of the acts mentioned in section 5110 of the Htwised Statutes to those already specified in the application.
J. E. Ingersoll, for Henry Nottingham. W. F. Oarr, for bankrupt. WELKER, D. J. On the eighteenth day of December, 1878, the peti, tioner was granted a final discharge in bankruptcy in this court. On the thirteenth day of December, 1880, Henry Nottingham, a creditor of said petitioner, and having a provable debt, and one that had been regularly proven, filed an application -in writing, desiring to contest the validity of the discharge on the ground that it was fraudulently obtained, and asking this court to annul the same. The application specified several of the acts mentioned in section 5110 as grounds for refusal of discharge, and which he intended to prove against him, setting forth the grounds of each particularly and specifically. The bankrupt denied each of the grounds. Before the final hearing of the application to set aside the discharge, on the third day of August, 1881, more than two years after the discharge was thus granted, Nottingham makes an application to amend his original application for annulling the discharge, by adding thereto another of the grounds for refusing a discharge contained in section 5110, to-wit, the eighth: That he had procured the assent of certain of his creditors, and influenced their action in consenting to his discharge by a pei.mniary consideration, and specifically setting out the particulars thereof. The application for leave to amend is objected to by the bankrupt, and the question is made, shall the amendment be allowed? Section 5120 provides:
"Any creditor of a bankrupt, whose debt was proved or provable against the estate in bankruptcy, who desires to contest the validity of the discharge on the ground that it was fraudulently obtained, may, at any time within two years after the date thereof, apply to the court which granted it to anllul the 'lame. The application shall be in writing, and shall specify which in particular of the several acts mentioned in section 5110, it is intended to prove against the bankrupt, and set forth the ground of avoidance; and no evidence shall be admitted as to any other of such acts. but the application shall be subject to amendment, at the discretion of the court."