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.the state lthink that:theaflidavit of prejudice or 10. cal influence J:nay be filelUhthat court, and then a certifi.edcop1 fi.ledin this. " '' "'

VINAL t1. CONTINENTAL CONSl'.

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IMP. Co.:

(Oircuit

No D. New Y01'k. March 19.

RBlIOVAL"Oll' CA.USES-SEPARABLE CONTROVERSy-ACT OF

MARcn8, 1887. A bill of complaint. tlledina state court of New York by a citizen of Massachusetts, against a corpbration of Vonnecticut and ,a corporation of New York, averred a cause of action, and prayedfor damages and ,an accounting 8S against the Connecticut corporation alone. for failure' t6' perform a contract. , Held. that the Copnecticut corporation was entitled to a removal under the 8ct of congress of March 8, 1887; the plaintiff and the removing de· fendant havin$ a separable controversy; they being citizens of different states, and the removlDg defendant not having been sued in his own state.

On Motion to Remand. Matthew IIale, ,for the Illotion. Thoma8 H. 'Hubbard, contra.
WALL,ACE,J. This suit was brought in the state court by a citizen of Massachusetts against a corporation of Oonnectic.ut aod a corporation ofthis sta.te. ' It was removed ,upon the petition of the defendant, the corporation, and, the plaintiff has moved to remand. the presents a controversy to which upon p, very preposterous theory of legal right the corporation of this state is a necessary party as well as the removing <lefendant, it also presents a separable controversy the plaintiff and the removing defendant, because the bill ofcomplaint avers a of action, and prays for damages and an accounting as against t4litd,efendant alone, .for failure to perform a contract. In this respect it is lilFe the case of,Boyd v. Gill, 21 Blatchf. 543, 19 ,Fed. to,the 1tct of 3, 1887, inasmuch as the pllliJ;l¥fl' and thereJilloying defendant have a sepa,rable controversy, are ot different states, and. the removing defendant was not sued in his ()wn. stll.te,the case lis ;removable under the act of March 3, 1887. Under the second section Qi:that act any suit of a civil nature is removable by the defendant ofWhich the circuit courts. are given jurisdiction by the first section, and by the firfit section the circuit courts are given jurisdiction of controvm:sies between .citizens of different states in which the Platter in is of requisite SUlD or value. The act is a slovenly pieceofp,atch-workputupon thef!,ctofMarch 3,1875; but, reading the alld amendatql,'yacts side by side to discover what has been inserted iJ:], andwhat left out of the original act, the meaningofthe changes and thei;reffect seem tolerably plain. The. first section ·of the amenda. tory; act, like the first secti()n of the' original act, relates exclusively to original, jurisdictiopof the circuit court; and the second section of the; act,like second, section of the original act, relates ex-

VINAL tJ.·OONTINEl.'TAL CONST. " IMP. CO.

229

elusively to the jurisdiction which may be resorted to by removal. It would seem to be the reasonable meaning of the second section in the amendatory act, like the second section of the original act, to perJ;Ilit a defendant to litigate inithecitcuit court by a removal, any suit which he could litigate there if it was originally commenced in a circuit court. Thefii'st section of the original act is a comprehensive grant of original jurisdiction to the circuit courts, and defines (1) the nature and scope of the jurisdiction over the subject-matter of suits; (2) the limitations of the jurisdiction over the person of defendant; and (3) the rule of decision . by which to ascertain when an assignee occupies a different position, as respects diversity of citizenship, from his assignor. . The second section of that act authorizes a removal by either party of any suit brought in a state court which could have been tried in a circuit court if it had been brought there originally because of the subject-matter involved. The first section of the amendatory act changes the first section of the original act, so that (1) the sum or value of the matter in dispute requisite to jurisdiction of the subject-matter must now be $2,000, exclusive of interest, instead of $500, not exclusive of interest, and does not otherwise change it.in respect of jurisdiction of subject-matter; (2) restricts the jurisdiction over the person of defendants, so that a defendant can no longer be served. with original process wherever he may be found, and must be served in the district of which he is an inhabitant, unless the suit is one where the jurisdiction of the subject-matter is founded only upon diversity of citizenship, in which Glase he maybe served either in his own l district or in tbedistrict of the plaintiff, if he can be' found there, and does not otherwise change it in respect to the jurisdiction of the person of defendants; and (3) changes the rule of decision for ascertaining,when an assignee occupies a different position, as respects diversity of citizenship, from his assignor. The second section of tlie amendatory act restrict8 the right of remQval so as to confine its exercise to a defendant of the state in which he is sued in a state court, . who is, and makes no other change in the second section of the originala<lt. Ambiguity has been introduced into the second section of the amendatory act.by the right of removal to suits "of which circuit are given jurisdiction by the preceding section." It has been thought by some. that this phrase restricts the right of removal to suits in which the particular circuit court to which a defendant seeks to resort has not only jurisdiction of the subject-matter but also jurisdiction over the person of the defendant. This is not a necessary, and does not seem to be a sensible, construction of the section. That phrase was apparently used to diflpense with a recapitulation of the several conditions which determine the jurisdiction of the subject-matter in the first section. The word "jurisdiction" refers to jurisdiction over the subject-matter, to the general jurisdiction of circuit courts, and means a jurisdiction which would enable any circuit court to entertain and determine the controversy if the parties were before it. It will serve no useful purpo8e to state at length the reasons which have led to this conclusion, the recent reports abound in, qpinions in exposition of the act.

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DEFENDANT.

P,4.RTIEB-REMqVA,LB;Y N"oN-REBIPmNT

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:Onder act defining the jurisdiction bf fe!leral courts. whil;'h ptovidestnat where,juri$dic,tion is founded on the f'actthat the action suit shall be brought only in the disis bE'tweell.. citizens of tric,t· where either 'the plaintiff or defendant resides. an action bY a citizen of Michigan, brought 'inthestate,'c,Oillt of plaintiff's, dist.rict against a. nonresident may be to the federal court by the defendant.

. Motion to Remand to StltteCourt. ' , :, McA,lvoy, & Grant, (Edgar Terhwne, of counsel,) for plaintiff. Ramsdell eft Benedict, for defendant.
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This cQsebeingbrought on lor trial, a question arises upon the jurisdiction of the court,-the defendant being a citizen of t!-n9ther state. The facts appearing upon the record are that the suit was originally brought in the circuit court of the state for the county of Manistee, by the plaintiff, who is a citizen of Michigan, against the ·defendant, who is a citizen of Illinois;· and that the defendant, upon a petition showing this diversity of citizenship,and the additional requisite condi,tions; together with the gi....i ng of the proper bond, procured the removal of the cause into this court. The petition was filed, and the removal had, since, the ynactment of the law of March 3, 1887, defining the jurisdiction of this court in original and removed causes. The sltme question was in the. case of Manley v. Obney, 32 Fed. Rep. 708, the facts being the same; but as the·case was remanded upon another ground, it was not ne,cessary to pass on this point. As is known to the profession, the decisions upon it are not hamlOnious. Upon a careful study, after the law of 1887 was passed, entered upon with a purpose of ascertaining what. upon comparison and reconcilement of its various provisions, the law had effected relative to the jurisdiction of the circuit courts,' my impression orit was that where jurisqiction was vested in the court upon the ground of the different citizl;lllship of the plaintiff and defendant, suit might be broughtin the district of either of the parties. The construction givento,the act by the cirouit court in the Ninth circuit was, however, tothecontrary. Cownty u.f Yuba v. Mining Co. ,32 Fed. Rep. 183. :It waS there held that the act only authorized cognizance of the case when it was brQught in the district, where the defend.ant resided; and,. as the law only permitfl removal when the case is one in which thesuit might have been brought originally in the federal court, it would follo'v that, :when the defendantin the state court was a non-resident, the case could not be removed. ,Thatcase::was decided by a ver'lable court, and the decision being concurred in by a justice of the supreme court and the circuit And district judges,is entitled'to the highest respect. The construction there given to the act was a. very rigid one, and, it is obvious,

SEVERE:NS, ,J.