ing of the governor, the judges of the Supreme Court and the chancellor, or any two of them. The Council of Revision thus possessed a qualified veto or negative on legislation --qualified and limited for the reason that, by a two-third vote in both houses, any objection which the council reported might be ignored. During its existence the council objected to one hundred and sixty-nine legislative bills, fifty-one of which, nevertheless, became laws. The report of their opinions is valuable as an exposition and construction of the Constitution. (Street's "Council of Revision.")

The new Legislature, as thus established, contained within itself the power of enacting laws- but not all laws. Their law-making power was restricted by the very statute which conferred such power. Both houses of the Legislature were constituted the sole judges of their respective memberships - -agrant which bore the mark of a historic struggle. But, in other respects, their procedure was not left optional; the whole body of the legislative customs and usages, which are sometimes termed the parliamentary common law, were made obligatory on them. This was a minor limitation. The major was, that the character of their legislation should conform to the canons of the jurisprudence of the common law. The framers of the new government unquestionably intended that such of the provisions of the common law of England and of the statute law of England, Great Britain and the former province, as were not repugnant to the Constitution itself, should remain the basis of the future laws of the State, for the Legislature was invested with a power to make alterations only concerning the same. Subject to such alterations and provisions as the Legislature should make concerning it, the ancient law, as it stood at the date of the battle of Concord and Lexington, was continued or established as the future law of the State. This provision of the first Constitution was adopted substantially in the existing Constitution.

What legislative alterations in the fundamental juridical law were contemplated by the framers of the government remains, therefore, a question of moment and we may digress to consider it. The legislative power of altering the fundamental law may be construed in two ways, quite opposed and divergent. One construction permits the total abrogation of the ancient law and the substitution of another juridical system of laws. The other construction preserves the rationale of the ancient law and confines the power of the Legislature to that of altering, in the sense opposed to annihilating, the ancient law. For the first sixty years of the State government the latter construction prevailed, not only in the courts but in the Legislature. Clearly, it is the latter construction only which is consistent with the bill of rights sections of the Constitution; for these sections, without the essentials of the jurisprudence of the common law, would be very ineffectual guarantees of personal liberty and security. When an entire revolution in the present organic juridical law of the State is proposed, there will inevitably be two schools of lawyers, who, in their consideration of the power of the Legislature to alter such fundamental law, will be as opposed as the Sabinians and the Proculians ever were, or could have been. Whence this proposal to change the existing laws may come, or how it may come, is at present but partially indicated. There are already rumors of a contemplated National Code of laws which shall tend to unify the laws of the several States, and which may subvert the particular jurisprudence of this State. Such a Code, as it tends to the exaltation of the general government, will prove alluring to those with whom the magnificence and the power of the nation are paramount to all other considerations; therefore, while its achievement is, in all probability, remote, it is possibly not so remote as we conceive. It is, how

ever, most probable that the proposal to revolutionize the inherited jurisprudence of this State may come from within the State itself; that it will be gradual, or almost imperceptible; but however the proposal may come or whence it may come, if due regard is had to the genius and the historical forces which have developed the jurisprudence of the common law, the essentials of this system will be retained. Neither is such a retention inconsistent with the repeal of archaic niceties; nor, with alterations, in the true sense of the term, tending to adapt the present jurisprudence to the ever increasing complications of modern society. The ultimate codification of the entire body of the law of this State is not inconsistent with the retention and preservation of those leading principles of law and liberty which underlie the Anglo-American type of government and civilization. The danger to be apprehended from certain forms of codification is, that attracted by the skillful statutory arrangement and disposition of the Roman law, we may be thereby induced either to discard some essential principle of inestimable value to the jurisprudence already in force for over two centuries of our history, or else to incorporate some principle subversive of the existing type of law and liberty. Without adverting to the respective merits or demerits of the two great systems of jurisprudence termed the Roman or Civil law and the Anglican or Common law, it is but proper to remark that in their developments there seem to have been certain opposed forces leading to widely divergent results. The tendency of the common or Anglican law has been toward an alliance with progressive freedom, self-government, open and popular judicatories, and democratical institutions; the tendency of the Roman law, to an association with centralized administrations, despotic governments, secret and inquisitorial judicatories, and imperial institutions.* The common law is crude in its arrangement and development; but from the complicated nature of its procedure and administration it is difficult to corrupt or pervert; on the other hand, the Roman law is subtle and philosophic in its disposition; but from its inevitable aud absolute dependence on the State and the Legislature, it is of uncertain value to institutional liberty. A codification which has indistinct reference to the spirits of the differences indicated is an alteration in the ancient law, the dangers of which we have digressed to consider; for, until it is determined how far the particular canons and even the terminology of the common law affect the citizen in his relations to the family institution and to the State, it is too soon to undertake to alter such canons and terminology on the plea that they are barbarous, or cumbersome and unphilosophic. While these considerations are, perhaps, foreign to our theme, they aro yet illustrative of the changes which, under some circumstances, may yet ensue in the jurisprudence which was established by the framers of the Constitution as the future law of this State.

The government established by the Constitution of 1777 whether it be termed an aristocratical or an oligarchical republic, or a democratical republic is of

*By this observation it is not intended to ignore the historical fact that Anglican jurisprudence owes much to Roman law. But what it thus owes it owes mainly to the private law not to the public law of the Romans, and the question naturally suggests itself "how far are the public and the private law of the Romans interdependent?" The remark in the text is unquestionably predicated on an assumption based on effects only. Yet modern discovery seems to be demonstrating that many of the best features of the jurisprudence of the common law are due to Germanic rather than to Roman institutions. It is however too soon to decide this moot point. Until it is decided it must be apparent that the considerations stated in the text should be regarded even in the work of codi fication.

no consequence- unquestionably bore a close resemblance to the government which preceded it. It was a modification of the provincial government and but little more; Turgot, John Adams, Jefferson, Wilson, Story, Everett and Lieber have substantially stated such to be the fact. The bicameral Legislature, the power of the legislative houses to be the sole judges of their own memberships, the method of choosing the presiding officer of the more popular branch, the parliamentary common law, the veto on legislation, the bill of rights, the judicature, the jurisprudence and the franchises, were all provincial institutions continued after the Revolution by virtue of the Constitution and because they were associated with all that was wisest and best in the previous history of New York. The Revolution was not a war against these things; it was a war for these things- the common porperty of the Anglican race.

The sections of the Constitution relating to the qualification of electors, voting by ballot instead of by the former viva voce method, naturalization, religious liberty, militia service, and the purchase of lands from the Indians are discussed by Mr. Stevens in his historical essay on the Constitution (3 Am. Mag. Hist. p. 1), and it is unnecessary to consider them in connection with the subject of this paper.

The supreme executive power and authority were vested in a governor to be chosen from and by the freeholders of the State. The manner in which the chief executive was chosen was entirely novel, but his powers corresponded to those enjoyed by his predecessor, the governor of the province. He was commander of the military forces and the chief magistrate of the State; he possessed the authority to convene and prorogue the Assembly on extraordinary occasions. The Constitution contemplated also a message from the executive, addressed to the Legislature, according to the former practice in the province. To aid the chief executive the office of lieutenant-governor was continued, with a modification which made him exofficio president of the upper legislativo house. The powers of the executive were, in comparison with the powers subsequently delegated by the Federal Constitution to the chief executive of the nation, carefully prescribed and limited, with a view to the prevention of the arbitrary conduct manifested by the governors of the province. The council of revision shared with the executive the responsibilities of the veto, and the council of appointment was invested with the power of appointing all officers whose selection was not otherwise determined by the Constitution. The pardoning power of the executive was also restricted.

The judicature, which rapidly became a co-ordinate branch of the new government, received, it is thought designedly, very little attention at the hands of the framers of the Constitution. One new tribunal of justice only was created, the court for the trial of impeachments and the correction of errors. It consisted of the president of the Senate, the senators, the chancellor and the judges of the Supreme Court, or a quorum of them. When this court sat as a court of impeachments, the chancellor and Supreme Court justices, if impeached, were disqualified from sitting in judgment on themselves- -a provision evidently supererogatory. The power of impeaching all officers of State was, in analogy to the practice in England, vested in the lower house of the Legislaturo.

The conception of vesting the supreme appellate jurisdiction in the upper legislativo house was derived by the framers of the State government from the familiar practice in vogue in the provincial era, when appeals lay to the provincial council. This council had possessed judicial as well as legislative and councilling powers; it was magna curia of the province. So, in all probability, the designation of the judges and chancellors as members of the court of errors arose from

the provincial practice; for they were ordinarily members of the council, and sat as part of the magna curia or judicial branch of the Legislature, but they could not vote on appeals from their own judgment, yet might deliver arguments in support of the same-another peculiar feature perpetuated in the court of errors of the State (§ 33, Const. 1777; Forsey v. Cunningham, N. Y. Hist. Soc. Col.) From the earliest times in the province of New York magistrates were debarred from deciding appeals taken from their own judgments ("Duke's Lawes, A. D. 1664.)

The continuance of the Supreme Court of Judicature of the province and the old Court of Chancery was evidently contemplated by the framers of the State government. The Constitution provided for the tenure of the judges of such courts aud eis nominibus made them members of the future council of revision and of the court of errors; yet in no more direct way were these fundamental courts of the common law perpetuated. It is a noteworthy fact, that both these high courts of justice, thus impliedly transferred to the new order of things, had been either erected or continued by virtue of ordinances promulgated by the royal governors of the province without, and, indeed, contrary to, the assent of the Legislature. These ordinances had originally provoked hostility, for the Legislature maintained that the governor had no power to act, in this regard, without their concurrence. It is highly probable the framers of the Constitution had abandoned the old objections to the ordinances founding these courts, which always bore a political rather than a legal complexion. Or, it is possible, that with the reverence formally felt for the common law, the theory —that the jurisdiction of the fundamental courts was derived from the common law - obtained and they were considered as falling within such parts of the common and statute law of England as were adopted by the 35th section of the Constitution. However the fact may have been, these courts of general jurisdiction, in law or equity, continued substantially on their old foundations until the Constitution of 1846.

The original Constitution enlarged that "resolve" of the convention of the representatives of the State which first provided that legal process and proceedings in the courts of the Revolutionary era should be in the name of the State, by ordaining that they should thenceforth run in the name of the People of the State.

It is unnecessary to refer to the "Bill of Rights" sections of the Constitution; they were not original or peculiar, and their particular provisions were in the main adopted as a whole by the 35th section which made the common law the future law of the State, Their specific enactment was, therefore, unnecessary.

The historical facts narrated, together with the legitimate inferences drawn therefrom, tend to verify the observation, that revolutions work gradual, rather than abrupt and radical, changes in the ancient laws of a State.

JURISDICTION OF FEDERAL COURTS OVER SUITS BY STATES.

SUPREME COURT OF THE UNITED STATES, NOV. 8, 1880.

NEW ORLEANS, MOBILE AND TEXAS RAILROAD Co., Plaintiff in Error, v. STATE OF MISSISSIPPI.

Upon the authority of Cohens v. Virginia, 6 Wheat. 375; Osborne v. Bank of United States, 9 id. 816; Mayor v. Cooper, 6 Wall. 250; Gold-Washing and Water Co. v. Keyes, 96 U. S. 201, and Davis v. Tennessee, 100 id. 264, held to be settled law:

That while the 11th amendment of the National Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to

suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the State; that a case in law or equity consists of the right of one party, as well as of the other, and may, properly, be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either; that 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; that except in the cases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct; and, lastly, that it is not sufficient to exclude the judicial power of the United States from a particular case; that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. These propositions, now too firmly established to admit of, or to require, further discussion, embrace the present case, and show that the inferior State court erred, as well in not accepting the petition and bond for the removal of the suit to the Circuit Court of the United States, as in thereafter proceeding to hear the cause. It was entirely without jurisdiction to proceed after the presentation of the petition and bond for removal. error to the Supreme Court of the State of Mississippi. The opinion states the case.

IN

HARLAN, J. The plaintiff in error, defendant below, filed a petition in the State court of original jurisdiction for the removal of this suit into the Circuit Court of the United States for the Southern District of Mississippi. The petition was accompanied by a bond, with good and sufficient surety, conditioned as required by the statute. The application for removal was denied, and the court, against the protest of the company, proceeded with the trial of the suit. A demurrer to the answer was sustained and judgment was entered in behalf of the State. Upon writ of error, sued out by the company, the Supreme Court of Mississippi gave its sanction to the action of the inferior court upon the petition for removal, and affirmed, in all respects, its judgment upon the merits.

The first assigument of error relates to the action of the State court in proceeding with the trial after the filing of the petition and bond for removal of the suit. If the suit was one which the company was entitled, under the statute, to have removed into the Circuit Court of the United States, then all that occurred in the State court, after the filing of the petition and bond, was in the face of the act of Congress. Gordon v. Longest, 16 Pet. 104; Kanouse v. Martin, 15 How. 208; Dunn v. Ins. Co., 19 Wall. 223-4. Its duty, by the express command of the statute, was, the suit being removable, to accept the petition and bond and proceed no further.

Among the cases to which the National Constitution extends the judicial power of the United States are those arising under the Constitution or laws of the Union. The first section of the act of March 3d, 1875, determining the jurisdiction of Circuit Courts of the United States, and regulating the removal of causes from State courts, invests such Circuit Courts with original jurisdiction, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500 and "arising under the Constitution or laws of the United States." Under the second section of that act either party to a suit of the character just described may re

move it into the Circuit Court of the United States for the proper district. The only inquiry, therefore, upon this branch of the case is, whether the present suit, looking to its nature and object as disclosed by the record, is, in the sense of the Constitution, or within the meaning of the act of 1875, one "arising under the Constitution or laws of the United States."

The action was commenced by a petition filed, in behalf of the State, against the New Orleans, Mobile and Chattanooga Railroad Company (now known as the New Orleans, Mobile and Texas Railroad Company), a corporation created, in the year 1866, under the laws of Alabama, and, by an act of the Legislature of Mississippi, passed February 7, 1867, recognized and approved as a body politic and corporate in that State, with authority to exercise therein the rights, powers, privileges, and franchises granted to it by the State of Alabama.

The object of the action was to obtain a peremptory writ of mandamus, requiring the company to remove a stationary bridge, which it had erected across Pearl river, on the line between Louisiana and Mississippi, and construct and maintain, in the central portion of the channel of that river where the railroad crosses, a draw-bridge which, when open, will give a clear space for the passage of vessels of not less than sixty feet in width, and provide, after its construction, for the opening of the draw-bridge, without unnecessary delay, for any and all vessels seeking to pass through it. The claim of the State is:

1. That the construction and maintenance of a stationary bridge across Pearl river is in violation of the company's charter, an obstruction to the navigation of the river, and a public nuisance, resulting in great and irreparable damage to the people of Mississippi.

2. That Pearl river, by the common law and the law of nations, is a navigable river, in which the tide ebbs and flows above said bridge, is navigable for steamboats for more than two hundred miles, and has been so navigated from time immemorial; that the river is the boundary between Mississippi and Louisiana, neither of those States having power to authorize any obstruction to its free navigation; that by an act of Congress entitled "An act to enable the people of the western part of Mississippi Territory to form a Constitution and State government, and for the admission of said State into the Union on an equal footing with the original States," passed March 1, 1817, it was, among other things, provided that the Mississippi river and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways and forever free, as well to the inhabitants of said State as to other citizens of the United States; " that those provisions constituted a condition on which the State of Mississippi was admitted into the Union, and an engagement on the part of the United States that all the navigable rivers and waters emptying into the Gulf of Mexico should forever be free to all the inhabitants of the State of Mississippi; that Pearl river does lead and empty into the Gulf of Mexico; that the bridge is such an obstruction to the navigation of Pearl river as to cause permanent injury, as well to the State of Mississippi and its inhabitants, as to the commerce of the United States and of the world, and consequently was in violation of the law.

The company resists the application for a mandamus upon several grounds.

It affirms that the bridge in question had been constructed and is maintained in accordance with its charter and conformably to the power and authority conferred by the States of Alabama, Mississippi and Louisiana.

It further avers, in its answer, that the railroad is a great public highway through those States, connecting them with other portions of the United States; that Congress, in view of the magnitude and cost of the

work, and to expedite its construction, by an act entitled "An act to establish and declare the railroad and bridges of the New Orleans, Mobile and Chattanooga railroad, as hereafter constructed, a post-road, and for other purposes," approved March 1868, authorized

and empowered that corporation to construct, build, and maintain bridges over and across the navigable waters of the United States on the route of said railroad, between New Orleans and Mobile, for the use of the company and the passage of its engines, cars, trains of cars, mails, passengers and merchandise, and that the railroad and its bridges, when complete and in use, were to be held and deemed lawful structures and a post-road; that the act of Congress required drawbridges on the Pascagoula, the Bay of Beloxi, the Bay of St. Louis, and the Great Rigolet, but none on Pearl river, power being reserved by Congress to amend or alter the act so as to prevent or remove material obstructions; that the company is authorized to maintain the bridge in question under that act of Congress; that the same is a lawful structure and a post-road, which no court can, consistently with the act of Congress, overturn or abate as illegal or as a nuisance.

On the day succeeding that on which its answer was filed, the company presented the petition for removal, to which reference has already been made, accompanied by a bond in proper form. That petition sets out the nature and object of the action, and claims that the right to erect and to maintain the present bridge for the conveyance of the cars, trains, passengers, mails, and merchandise, vested in the company, contract with the State of Mississippi, in the enactment aforesaid; that the State of Mississippi has no power to repudiate that contract or to impair its obligations; that it is a vested right resting on a contract and supported and sustained by the Constitution of the United States, and that this cause is one arising under the Constitution of the United States."

It then proceeds:

66 on a

"And your petitioner further represents that the bridge aforesaid, and its maintenance over the said river in the manner in which it exists, is authorized by the act of Congress approved March 2, 1868, which authorized and empowered the said company to construct, build and maintain bridges over and across the navigable waters of the United States on the route of the said railroad between Mobile and New Orleans, and that when constructed they should be recognized as lawful structures and a post-road, and were declared to be such; and the Congress reserved the power to alter the same when they become an obstruction to the navigable waters.

"Your petitioner says that the railroad and bridges are and have been for three or more years a post-road, over which the mails of the United States have been carried and are now being carried, and as the bridge referred to is a lawful structure under the laws of the United States, this suit impugns the rights, privileges, and franchises granted by the act of Congress aforesaid of the 2d March, 1868."

From this analysis of the pleadings, and of the petition for removal, it will be observed that the contention of the State rests, in part, upon the ground that the construction and maintenance of the bridge in question is in violation of the condition on which Mississippi was admitted into the Union, and inconsistent with the engagement, on the part of the United States, as expressed in the act of March 1, 1817. On the other hand, the railroad company, in support of its right to construct and maintain the present bridge across Pearl river, invokes the protection of the act of Congress passed March 2, 1868. While the case raises questions which may involve the construction of State enactments, and also, perhaps, general principles of law, not necessarily connected with any Federal question, the suit otherwise presents a real and substantial dispute

or controversy which depends altogether upon the construction and effect of an act of Congress. If it be insisted that the claim of the State, as set out in its petition, might possibly be determined by reference alone to State enactments, and without any construction of the act of 1817, the provisions of which are invoked by the State in support of its application for mandamus, the important, and so far as the defense is concerned, the fundamental, question would still remain, as to the construction of the act of Congress of March 2, 1868. That act, the company contends, protects the present stationary bridge against all interference whatever, upon the part either of the State or of the courts. In other words, should the court be of opinion that the law is for the State, if the rights of parties were tested simply by the statutes of Alabama and Mississippi, it could not evade, but must meet and determine the question distinctly raised by the answer, as to the operation and effect of the act of Congress of 1868.

Is it not then plainly a case which, in the sense of the Constitution and of the statute of 1875, arises under the laws of the United States?

If regard be had to the former adjudications of this court, this question must be answered in the affirmative.

It is settled law, as established by well-considered decisions of this court, pronounced upon full argument and after mature deliberation, notably in Cohens v. Virginia, 6 Wheat. 375; Osborne v. Bank of United States, 9 id. 816; Mayor v. Cooper, 6 Wall. 250; GoldWashing and Water Co. v. Keyes, 96 U. S. 201; and Davis v. Tennessee, 100 id. 264, that while the 11th amendment of the National Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the State; that a case in law or equity consists of the right of one party, as well as of the other, and may properly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either; that 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, that except in the cases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct; and lastly, that it is not sufficient to exclude the judicial power of the United States from a particular case, that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.

These propositions, now too firmly established to admit of or to requiro further discussion, embrace the present case, and show that whether we look to the Federal question raised by the State in its original petition, or to the Federal question raised by the company in its answer, the inferior State court erred, as well in not accepting the petition and bond for the removal of the suit to the Circuit Court of the United States, as in thereafter proceeding to hear the cause. It was entirely without jurisdiction to proceed after

the presentation of the petition and bond for removal. In view of our decisions in Ins. Co. v. Dunn, 19 Wall. 214, in Removal cases, 100 U. S. 475, and in other cases, it is scarcely necessary to say that the railroad company did not lose its right to raise this question of jurisdiction by contesting the case upon the merits in the State courts, after its application for the removal of the suit had been disregarded. It remained in the State court under protest as to the right of that court to proceed further in the suit, and there is nothing in the record to show that it waived its right to have the case removed to the Federal court, and consented to proceed in the State court, as if there had been no petition and bond for the removal.

The judgment of the Supreme Court of Mississippi is therefore reversed and the cause remanded for such orders as may be consistent with this opinion, and with directions that the court of original jurisdiction be required to set aside all judgments and orders made in this suit after the presentation of the petition and bond for its removal into the Circuit Court of the United States, and proceed no further in the suit.

Mr. Justice Field did not hear the argument of this case, and therefore did not participate in its decision. Mr. Justice Miller dissented.

REMOVAL OF CAUSE-COUNTER-CLAIM ESTABLISHING AMOUNT IN DISPUTE.

UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK, NOVEMBER 15, 1880.

CLARKSON v. MANSON.

Plaintiff brought action in the Marine Court of New York to recover a balance of $195, for articles sold. Defendant, in his answer, alleged fraud and misrepresentation in the sale injuring him to the extent of $750, which he set up as a counter-claim. The New York statute in such a case, if the demands of both parties are established, allows defendant judgment for the excess of the counterclaim over plaintiff's demand. The parties were residents of different States. Held, that the amount in dispute exceeded $500, so as to authorize a removal of the cause to the United States court, under the act of March 3, 1875.

MOT

OTION to remand case to Marine Court of the city of New York. The opinion states the facts. Ira D. Warren and John Bassett, Jr., for the motion. D. M. Porter and George H. Kracht opposed. BLATCHFORD, C. J. The plaintiffs brought this suit against the defendant in the Marine Court of the city of New York to recover the sum of $195 as a balance unpaid on a sale of the fixtures of a store and bakehouse. The answer put in, in the State court, sets up that the plaintiffs, with intent to defraud, falsely represented to the defendants that the bake-house was a profitable business place, and that one Ott, a former proprietor of it, had done a profitable business at it, and thus induced the defendant to hire the store; that the plaintiffs also represented that they owned the store and the bakery fixtures in it, and offered to sell them to him; that he, to secure for one day the right to purchase them, paid to plaintiffs $5, as a deposit, on the agreement that if he was not satisfied with the fixtures, the $5 should be forfeited; that the defendant, not being satisfied with the store and fixtures, immediately notified the plaintiffs thereof; that the place had never been a profitable business place for a bakery; that Ott closed it because he could not make it pay the expenses of keeping it; that the fixtures were mortgaged and were owned by Ott and not by the plaintiffs; that the plaintiffs knew this; that the defendant, relying on such representations and believing them to be true, rented the store and furnished it with new fixtures and made repairs in it, and fitted it up at great

expense, and hired help to conduct the business of the bakery; and that he has not realized any moneys from the business carried on at the place, and was unable to make the business pay expenses, but was obliged to close it, to his damage $750, which he sets up as a counter-claim against the plaintiffs. The answer denies all the allegations of the complaint not thus admitted or denied, and demands judgment against the plaintiffs, that the complaint be dismissed with costs, and that he have judgment against the plaintiffs for $750. This answer was put in September 13, 1880. A reply, sworn to September 15, 1880, was put in by the plaintiffs, replying "to the allegations of counter-claim contained in the answer," and denying each and every of said allegations.

On the 10th of September, 1880, the defendant presented to the State court a petition, signed and sworn to by him September 18, 1880, setting forth the pendency of the suit as an action commenced and pending by the plaintiffs against the defendant; that the plaintiffs are, and were at the time of the commencement of the action, citizens of New York, and the defendant a citizen of New Jersey; "that the matter in dispute in this action exceeds, exclusivo of costs, the sum or value of $500;" that "the defendant has appeared in this action, in this court, and answered the complaint;" that the action had not yet been tried; and that no term had passed since it was commenced at which it could be tried. The petition prays that "the said suit may be removed" to this court. The proper bond was given and approved by the State court, and on the 20th of September, 1880, that court made an order ex parte which recites the contents of the petition and tho tenor of the bond; and "on reading and filing a copy of the pleadings in said action," and the petition and the bond, orders that the petition and bond be accepted, and declares that said court will proceed no further in the suit, it being removed to this court. Afterward, and before the commencement of the next term of this court, and before a copy of the record in the State court was filed in this court, that court made an order vacating the said order of removal. The ground assigned for making this second order, in the decision made by Judge McAdam, the judge of the State court, was that the amount in dispute in the suit was only the amount stated in the complaint, and not the amount claimed in the counter-claim set up in the answer; and that as the matter in dispute did not exceed, exclusive of costs, the sum or value of $500, the case was not one for a removal under section 2 of the act of March 3, 1875 (18 U. S. Stats. at Large, 470). Notwithstanding this second order, the defendant, claiming that the suit was removed to this court, filed in this court, on the first day of this term, a certified copy from the State court of the proceedings therein to and including the order of removal, and entered an order ex parte, as an order of course not signed by a judge, reciting the filing of said copy record, and ordering that the cause proceed no further in the State court, and that it proceed in this court in the same manner as if it had been originally commenced therein, and that the appearance of the defendant be and was thereby entered.

The plaintiff now moves for an order vacating the order so entered in this court, and remanding this action to the State court and striking from the files of this court the record so filed here. It appears when the order of removal was made the pleadings in this case were none of them exhibited to the judge of the State court, although the order of removal recited that they were read. They were presented on the making of the second order.