Gambar halaman

ing of the governor, the judges of the Supreme Court ever, most probable that tho proposal to revolutionize and the chancellor, or any two of them. The Council the inherited jurisprudence of this State may come of Revision thus possessed a qualified veto or negative from within the State itself; that it will be gradual, or on legislation -- qualified and limited for the reason almost imperceptible; but however the proposal may that, by a two-third vote in both houses, any objection come or whence it may come, if due regard is had to which the council reported might be ignored. During the genius and the historical forces which have deits existence the council objected to one hundred and veloped the jurisprudence of the common law, the sixty-nine legislative bills, fifty-one of which, never- essentials of this system will be retained. Neither is theless, became laws. The report of their opinions is such a retentiou inconsistent with the repeal of archaic valuable as an exposition and construction of the Con- niceties; nor, with alterations, in the true sense of the stitution. (Street's “ Council of Revision.")

term, tending to adapt the present jurisprudence to The new Legislature, as thus established, contained the ever increasing complications of modern society. within itself the power of enacting laws – but not all The ultimate codification of the entire body of the laws. Their law-making power was restricted by the law of this State is not inconsistent with the retention very statute which conferred such power. Both and preservation of those leading principles of law and houses of the Legislature were constituted the sole liberty which underlie tbe Anglo-American type of judges of their respective memberships — a grant which government and civilization. The danger to be apprebore the mark of a historic struggle. But, in other hended from certain forms of codification is, that atrespects, their procedure was not left optional; the tracted by the skillful statutory arrangement and whole body of the legislative customs and usages, disposition of the Roman law, we may be thereby which are soinetimes termed the parliameiitary com- induced either to discard some essential principle of mon law, were made obligatory on them. This was il inestimable value to the jurisprudence already in minor limitation. The major was, that the character force for over two centuries of our history, or else to of their legislation should conforn to the canons of incorporate some principle subversive of the existing the jurisprudence of the common law. The framers type of law and liberty. Without adverting to the of the new government unquestionably intended that respective merits or demerits of the two great systems such of the provisions of the common law of England of jurisprudence termed the Roman or Civil law and and of the statute law of England, Great Britain and the Anglican or Common law, it is but proper to the former province, as were not repugnant to the Con- remark that in their developments there seem to have stitution itself, should remain the basis of the future been certain opposed forces leading to widely divergent laws of the State, for the Legislature was invested results. The tendency of the common or Anglican with a power to make alterations only concerning the law has been toward an alliance with progressive freesame. Subject to such alterations and provisions as dom, self-government, open and popular judicatories, the Legislature should make concerning it, the ancient and democratical institutions; the tendency of the law, as it stood at the date of the battle of Concord Roman law, to an association with centralized adminisand Lexington, was continued or established as the trations, despotic governments, secret and inquisitorial future law of the State. This provision of the first judicatories, and imperial institutions.* The common Constitution was adopted substantially in the existing law is crude in its arrangement and derelopment; but Constitution.

from the complicated nature of its procedure and adWhat legislative alterations in the fundamental ministration it is difficult to corrupt or pervert; on juridical law were contemplated by the framers of the other hand, the Roman law is subtle and philothe government remains, therefore, a question of sophic in its disposition; but from its inevitable and moment and we may digress to consider it. The legis- absolute dependence on the State and the Legislature, lative power of altering the fundamental law may be it is of uncertain value to institutional liberty. A construed in two ways, qnite opposed and divergent. codification which bas indistinct reference to the One construction permits the total abrogiltion of the spirits of the differences indicated is an alteration in ancient law and the su'ystitution of another juridical the ancient law, the dangers of which we have digressed system of laws. The other construction preserves the to consider; for, until it is determined how far the rationale of the ancient law and coulines the power of particular canons and even the terminology of the the Legislature to that of altering, in the sense opposed common law affect the citizen in his relations to the to annihilating, the ancient law. For the first sixty family institution and to the State, it is too soon to years of the State government the latter construction undertake to alter such canons and terminology on the prevailed, not only in the courts but in the Legislature. plea that they are barbarous, or cumbersome and unClearly, it is the latter construction only which is con- philosophic. While these considerations are, perhaps, sistent with the bill of rights sections of the Constitu- foreign to our theme, they aro yet illustrative of the tion; for these sectious, without the essentials of the changes which, under some circumstances, may yet jurisprudence of the common law, would be very ensue in the jurisprudence which was established by ineffectual guarantees of personal liberty and security. the framers of the Constitution as the future law of When an entire revolution in the present organic this State. juridical law of the State is proposed, there will inevit- The government established by the Constitution of ably be two schools of lawyers, who, in their considera- 1777 – whether it be termed an aristocratical or an tion of the power of the Legislature to alter such oligarchical republic, or a democratical republic is of fundamental law, will be as opposed as the Sabinians and the Proculians ever were, or could have been.

* By this observation it is not intended to ignore the his

torical fact that Anglican jurisprudence owes much to Whence this proposal to change the existing laws may

Roman law. But what it thus owes it owes mainly to the come, or how it may come, is at present but partially

private law not to tho public law of the Romans, and the indicated. There are already rumors of a contem- question naturally suggests itself "how far are the pubplated National Code of laws which shall tend to lic and the private law of the Romans interdependent?" unify the laws of the several States, and which may The remark in the text is unquestionably predicated on subvert the particular jurisprudence of this State. an assumption based on effects only. Yet modern disSuch a Code, as it tends to the exaltation of the gen

covery seems to be demonstrating that many of the best eral government, will prove alluring to those with

features of the jurisprudence of the common law are due

to Germanic rather than to Roman institutions. It is whom the magnificence and the power of the nation

however too soon to decide this moot point. Until it is are paramount to all other considerations; therefore,

decided it must be apparent that the considerations stated while its achievement is, in all probability, remote, it in the text should be regarded even in the work of codiis possibly not so remote as we conceive. It is, how- fication,

no consequence- unquestionably bore a close resem- the provincial practice; for they were ordinarily memblance to the government which preceded it. It was a bers of the council, and sat as part of the magna curia modification of the provincial government and but or judicial branch of the Legislature, but they could little more; Turgot, John Adams, Jefferson, Wilson, not vote on appeals from their own judgment, yet Story, Everett and Lieber have substantially stated might deliver arguments in support of the same-ansuch to be the fact. The bicameral Legislature, the other peculiar feature perpetuated in the court of power of the legislative houses to be the sole judges errors of the State ($ 33, Const. 1777; Forsey v. Cunof their own memberships, the method of choosing ningham, N. Y. Hist. Soc. Col.) From the earliest the presiding officer of the more popular branch, the times in the province of New York magistrates were parliamentary common law, the veto on legislation, debarred from deciding appeals taken from their own the bill of rights, the judicature, the jurisprudence judgments (“Duke's Lawes, A. D. 1661.) and the franchises, were all provincial iustitutions The continuance of the Supreme Court of Judicacontinued after the Revolution by virtue of the Con- ture of the province and tho old Court of Chancery stitution and because they were associated with all was evidently contemplated by the framers of the that was wisest and best in the previous history of State government. The Constitution provided for New York. The Revolution was not a war against the tenure of the judges of such courts and eis nonthese things; it was a war for these things - the com- inibus made them members of the future council of mon porperty of the Anglican race.

revision and of the court of errors; yet in no more The sections of the Constitution relating to the direct way were these fundamental courts of the comqualification of electors, voting by ballot instead of by mon law perpetuated. It is a noteworthy fact, that the former viva voce method, naturalization, religious both these high courts of justice, thus impliedly transliberty, militia service, and the purchase of lands from ferred to the new order of things, had been either the Indians are discussed by Mr. Stevens in his his- erected or continued by virtue of ordinances promultorical essay on the Constitution (3 Am. Mag. Hist. gated by the royal governors of the province without, p. 1), and it is unnecessary to consider them in con- and, indeed, contrary to, the assent of the Legislature. nection with the subject of this paper.

These ordinances had originally provoked hostility, for The supreme executive power and authority were the Legislature maintained that the governor had no vested in a governor to be chosen from and by the power to act, in this regard, without their concurrence. freeholders of the State. The manner in which the It is highly probable the framers of the Constitution had chief executive was chosen was entirely novel, but his abandoned the old objections to the ordinances foundpowers corresponded to those enjoyed by his prede- ing these courts, which always bore a political rather cessor, the governor of the province. He was com- than a legal complexion. Or, it is possible, that with the mander of the military forces and the chief magistrate reverence formally felt for the common law, the theory of the State; he possessed the authority to convene and -that the jurisdiction of the fundamental courts was prorogue the Assembly on extraordinary occasions. derived from the common law - obtained and they The Constitution contemplated also a message from were considered as falling within such parts of the the executive, addressed to the Legislature, according common and statute law of England as were adopted to the former practice in the province. To aid the by the 35th section of the Constitution. However the chief executive the office of lieutenant-governor was fact may have been, these courts of general jurisdiccontinued, with a modification which made him ex- tion, in law or equity, continued substantially on their officio president of the upper legislatiro house. The old foundations until the Constitution of 1846. powers of the executive were, in comparison with the The original Constitution enlarged that "resolve" of powers subsequently delegated by the Federal Consti- the convention of the representatives of the State which tution to the chief executive of the nation, carefully first provided that legal process and proceedings in the prescribed and limited, with a view to the prevention courts of the Revolutionary era should be in the name of the arbitrary conduct manifested by the governors of the State, by ordaiping that they should thenceforth of the province. The council of revision shared with run in the name of the People of the State. the executive the responsibilities of the veto, and the It is unnecessary to refer to the “ Bill of Rights" council of appointment was invested with the power sections of the Constitution; they were not original or of appointing all officers whose selectiou was not peculiar, and their particular provisions were in the otherwise determined by the Coustitution. The par- main adopted as a whole by the 35th section which doning power of the executive was also restricted. made the common law the future law of the State,

The judicature, which rapidly became a co-ordinate Their specific enactment was, therefore, unnecessary. branch of the new government, received, it is thought The historical facts narrated, together with the designedly, very little attention at thu hauds of the legitimate inferences drawn therefrom, tend to verify framers of the Constitution. One new tribunal of the observation, that revolutions work gradual, rather justice only was created, the court for the trial of im- than abrupt and radical, chauges in the ancient laws of peachments and the correction of errors. It consisted a State. of the president of the Senate, the senators, the chancellor and the judges of the Supreme Court, or a JURISDICTION OF FEDERAL COURTS OVER quorum of them. When this court sat as a court of

SUITS BY STATES. impeachments, the chancellor and Supreme Court justices, if impeached, were disqualified from sitting in

SUPREME COURT OF THE UNITED STATES, NOV. 8, 1880. judgment on themselves — a provision evidently supererogatory. The power of impeaching all officers of State was, in analogy to the practice in England, vested


Plaintiff in Error, v. STATE OF MISSISSIPPI. in the lower house of the Legislaturo.

The conception of vesting the supreme appellate Upon the authority of Cohen: v. Virginia, 6 Wheat. 375; jurisdictiou in the upper legislativo house was derived Osborne v. Bank of United States, 9 id. 816; Mayor v. by the framers of the State government from the

Cooper, 6 Wall. 250; Gold-Washing and Water Co. v. Keyes, familiar practice in vogue in the provincial era, when

96 U. S. 201, and Davis v. Tennessee, 100 id. 264, held to be appeals lay to the provincial council. This council had

settled law:

That while the 11th amendment of the National Constitupossessed judicial as well as legislative and councilling

tion excludes the judicial power of the United States powers; it was magna curia of the province. So, in

from suits, in law or equity, commenced or prosecuted all probability, the designation of the judges and chan- against one of the United States by citizens of another cellors as members of the court of errors arose from State, such power is extended by the Constitution to


suits commenced or prosecuted by a State against an move it into the Circuit Court of the United States for individual, in which the latter demands nothing from the proper district. The only inquiry, therefore, upou the former, but only seeks the protection of the Con

this branch of the case is, whether the present suit, stitution and laws of the United States against the

looking to its nature and object as disclosed by the claim or demand of the State ; that a case in law or

record, is, in the sense of the Constitution, or within equity consists of the right of one party, as well as of the other, and may, properly, be said to arise under the

the meaning of the act of 1875, one “ arising under the Constitution or a law of the United States, whenever its

Constitution or laws of the United States." correct decision depends on the construction of either; The action was commenced by a petition filed, in bethat cases arising under the laws of the United States half of the State, against the New Orleans, Mobilo aud are such as grow out of the legislation of Congress, Chattanooga Railroad Company (now known as the whether they constitute the right or privilege, or claim,

New Orleans, Mobile and Texas Railroad Company), a or protection, or defense of the party, in whole or in

corporation created, in the year 1866, under the laws of part, by whom they are asserted; that except in the

Alabama, and, by an act of the Legislature of Misscases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United

issippi, passed February 7, 1867, recoguized and apStates is to be exercised in its original or appellate form,

proved as a body politic and corporate in that State, or both, as the wisdom of Congress may direct; and, with authority to exercise therein the rights, powers, lastly, that it is not sufficient to exclude the judicial privileges, and franchises granted to it by the State of power of the United States from a particular case; that Alabama. it involves questions which do not at all depend on the

The object of the action was to obtain a peremptory Constitution or laws of the United States ; but when a

writ of mandamus, requiring the company to remove question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the

a stationary bridge, which it had erected across Pearl original cause, it is within the power of Congress to give

river, on the line between Louisiana and Mississippi, the Circuit Courts jurisdiction of that cause, although

and construct and maintain, in the central portion of other questions of fact or of law may be involved in it. the channel of that river where the railroad crosses, a These propositions, now too firmly established to admit of, draw-bridge which, when open, will give a clear space

or to require, further discussion, embrace the present for the passage of vessels of not less than sixty feet in case, and show that the inferior State court erred, as

width, and provide, after its construction, for the well in not accepting the petition and bond for the re

opening of the draw-bridge, without unnecessary moval of the suit to the Circuit Court of the United States, as in thereafter proceeding to hear the cause.

delay, for any and all vessels seeking to pass through it.

The claim of the State is : It was entirely without jurisdiction to proceed after the presentation of the petition and bond for removal.

1. That the construction and maintenance of a sta

tionary bridge across Pearl river is in violation of the error to the Supreme Court of the State of Mississippi. The opinion states the case.

company's charter, an obstructiou to the navigation of

the river, aud a public nuisance, resulting in great and HARLAN, J. The plaintiff in error, defendant below, irreparable damage to the people of Mississippi. filed a petition in the State court of original jurisdic- 2. That Pearl river, by the common law and the law tion for the removal of this suit into the Circuit Court of nations, is a navigable river, in which the tide ebbs of the United States for the Southern District of Miss- and flows above said bridge, is navigable for steamissippi. The petition was accompanied by a bond, boats for more than two hundred miles, and has been with good and sufficient surety, conditioned as re- so navigated from time immemorial; that the river is quired by the statute. The application for removal the boundary between Mississippi and Louisiana, was denied, and the court, against the protest of the neither of those States haviug power to authorize any company, proceeded with the trial of the suit. A obstruction to its free navigation; that by an act of demurrer to the auswer was sustained and judgment Congress entitled "An act to enable the people of the was entered in behalf of the State. Upon writ of western part of Mississippi Territory to form a Constierror, sued out by the company, the Supreme Court of tution and State government, and for tho admission of Mississippi gave its sanction to the action of the in- said State into the Union on an equal footing with the ferior court upon the petition for removal, and affirmed, original States," passed March 1, 1817, it was, among in all respects, its judgment upon the merits.

other things, provided “that the Mississippi river and The first assigument of error relates to the action of the navigable rivers and waters leading into the same, the State court in proceeding with the trial after the or into the Gulf of Mexico, shall be common highways filing of the petition and bond for removal of the suit. and forever free, as well to the inbabitants of said If the suit was one which the company was entitled, State as to other citizens of the United States;” that under the statute, to have removed into the Circuit those provisions constituted a coudition on which the Court of the United States, then all that occurred in State of Mississippi was adınitted into the Union, and the State court, after the filing of the petition and an engagement on the part of the United States that all bond, was in the face of the act of Congress. Gordon the navigable rivers and waters emptying into the v. Longest, 16 Pet. 104; Kanouse v. Martin, 15 How. Gulf of Mexico should forever be free to all the in208; Dunn v. Ins. Co., 19 Wall. 223-4. Its duty, by the habitants of the State of Mississippi; that Pearl river express command of the statute, was, the suit being does lead and empty into the Gulf of Mexico; that the removable, to accept the petition and bond and pro- bridge is such an obstruction to the navigation of ceed no further.

Pearl river as to cause permanent injury, as well to the Among the cases to which the National Constitution State of Mississippi and its inhabitants, as to the comextends the judicial power of the United States are merce of the United States and of the world, and conthose arising under the Constitution or laws of tho

sequently was in violation of the law. Union. The first section of the act of March 3d, 1875, The company resists the application for a mandamus determining the jurisdiction of Circuit Courts of the upon several grounds. United States, and regulating the removal of causes It affirms that the bridge in question had been confrom State courts, invests such Circuit Courts with structed and is maintained in accordance with its charoriginal jurisdiction, concurrent with the courts of the ter and conformably to the power aud authority conseveral States, of all suits of a civil nature, at com- ferred by the States of Alabama, Mississippi and mon law or in equity, where the matter in dispute ex- Louisiana. ceeds, exclusive of costs, the sum or value of $500 and It further avers, in its answer, that the railroad is a " arising under the Constitution or laws of the United great public highway through those States, connecting States." Under the second section of that act either them with other portions of the United States; that party to a suit of the character just described may re- Congress, in view of the magnitude and cost of the

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work, and to expedite its construction, by an act en- or controversy which depends altogether upon the contitled "An act to establish and declare the railroad and struction and effect of an act of Congress. If it be bridges of the New Orleans, Mobile and Chattanooga insisted that the clain of the State, as set out in its railroad, as bereafter constructed, a post-road, and for petition, might possibly be determined by reference other purposes," approved March 2, 1868, authorized alone to State enactments, and without any construcand empowered that corporation to construct, build, tion of the act of 1817, the provisions of which are aud maintain bridges over and across the vavigable invoked by the State in support of its application for waters of the United States on the route of said rail- mandamus, the important, and so far as the defense road, between New Orleans and Mobile, for the use of is concerned, the fundamental, question would still the company and the passage of its engines, cars, trains remain, as to the construction of the act of Congress of cars, mails, passengers and merchandise, and that of March 2, 1868. That act, the company contends, the railroad and its bridges, when complete and in use, protects the present stationary bridge against all interwere to be held and deemed lawful structures and a ference whatever, upon the part either of the State or post-road; that the act of Congress required draw. of the courts. In other words, should the court be of bridges on the Pascagoula, the Bay of Beloxi, the Bay opinion that the law is for the State, if the rights of of St. Louis, and the Great Rigolet, but none on Pearl parties were tested simply by the statutes of Alabama river, power being reserved by Congress to amend or and Mississippi, it could not evade, but must meet and alter the act so as to prevent or remove material ob- determine the question distinctly raised by the answer, structions; that the company is authorized to main- as to the operation and effect of the act of Congress of tain the bridge in question under that act of Congress; 1868. that the same is a lawful structure and a post-road, Is it not then plainly a case which, in the sense of which no court can, consistently with the act of Con- the Constitution and of the statute of 1875, arises under gress, overturn or abate as illegal or as a nuisance. the laws of the United States ?

Ou the day succeeding that on which its auswer was Il regard be had to the former adjudications of this filed, the company presented the petition for removal, court, this question must be answered in the affirmto which reference has already been made, accompa- ative. nied by a bond in proper form. That petition sets out It is settled law, as established by well-considered the nature and object of the action, and claims that decisions of this court, pronounced upon full arguthe right to erect and to maintaiu the present bridge ment and after mature deliberation, notably in Cohens for the conveyance of the cars, trains, passengers, v. Virginia, 6 Wheat. 375; Osborne v. Bank of United mails, and merchandise, vested in the company, on a States, 9 id. 816; Mayor v. Cooper, 6 Wall. 250; Goldcontract with the State of Mississippi, in the enact- Washing and Water Co. v. Keyes, 96 U. S. 201; and meut aforesaid ; that the State of Mississippi has no Davis v. Tennessee, 100 id. 264, that while the 11th power to repudiate that contract or to impair its obli- amendment of the National Constitution excludes the gations; that it is a vested right resting on a contract judicial power of the United States from suits, in law and supported and sustained by the Constitution of or equity, commenced or prosecuted against one of the the United States, and that this cause is one arising United States by citizens of another State, such power under the Constitution of the United States."

is extended by the Constitution to suits commenced It then proceeds:

or prosecuted by a State against an individual, in “And your petitioner further represents that the which the latter demands nothing from the former, bridge aforesaid, and its maintenance over the said but only seeks tho protection of the Constitution and river in the manner ju which it exists, is authorized laws of the United States against the claim or demand by the act of Congress approved March 2, 1868, which of the State; that a case in law or equity consists of the authorized and empowered the said company to con- right of one party, as well as of the other, and may struct, build and maintain bridges over and across the properly be said to arise under the Constitution or a parigable waters of the United States on the route of Jaw of the United States, whenever its correct decision the said railroad between Mobile and New Orleans, depends on the construction of either; that cases arisand that when constructed they should be recognized | ing under the laws of the United States are such as as lawful structures and a post-road, and were declared grow out of the legislation of Congress, whether they to be such; and the Congress reserved the power to constitute the right, or privilege, or claim, or protecalter the same when they become an obstruction to tho tion, or defense of the party, in whole or in part, by navigable waters.

whom they are asserted, that except in the cases of “Your petitioner says that the railroad and bridges which this court is given, by the Constitution, original are and have been for three or more years a post-road, jurisdiction, the judicial power of the United States over which the mails of the United States have been is to be exercised in its original or appellate form, or carried and are now being carried, and as the bridge both, as the wisdom of Congress may direct; and referred to is a lawful structure under the laws of the lastly, that it is not sufficient to exclude the judicial United States, this suit impugns the rights, privileges, power of the United States from a particular case, that and franchises granted by the act of Congress aforesaid it involves questions which do not at all depend on the of the 20 March, 1868.”

Constitution or laws of the United States; but when From this analysis of the pleadings, and of the petition a question to which the judicial power of the Union is for removal, it will be observed that the contention of extended by the Constitution forms an ingredient of the State rests, in part, upon the ground that the con- the original cause, it is within the power of Congress struction and maintenance of the bridge in question is to give the Circuit Courts jurisdiction of that cause, in violation of the condition on which Mississippi was although other questions of fact or of law may be inadmitted into the Union, and inconsistent with the volved in it. engagement, on the part of the United States, as ex- These propositions, now too firmly established to pressed in the act of March 1, 1817. On the other admit of or to requiro further discussion, embrace the hand, the railroad company, in support of its right to present case, and show that whether we look to the construct and maintain the present bridge across Pearl Federal question raised by the State in its original river, invokes the protection of the act of Congress petition, or to the Federal question raised by the compassed March 2, 1868. While the case raises questions pany in its answer, the inferior State court erred, as which may involve the construction of State enact- well in not accepting the petition and bond for the rements, and also, perhaps, general principles of law, not moval of the suit to the Circuit Court of the United necessarily connected with any Federal question, the States, as in thereafter proceeding to hear the cause. suit otherwise presents a real and substantial dispute It was entirely without jurisdiction to proceed after

the presentation of the petition and bond for removal.

In view of our decisions in In8. Co. v. Dunn, 19 Wall. 211, 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 causo remanded for such orders as may be consistent with this opinion, and with directions tbat 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 Uuited States, and proceed no further in the suit.

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





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 $ 730, 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 $300, so as to authorize a removal of the cause to the United States court, under the act of March 3, 1875. OTION to remaud case to Marine Court of the city

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 tho matter in dispute in this action exceeds, exclusive 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 tbe 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 110 further in the suit, it being removed to this court. Af. terward, 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 mado 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 $300, 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 sigued 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 commeuced 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 secoud order.

The second section of the act of 1875 provides that “any suit

where the matter in dispute exceeds, exclusive of costs, the sum or value of 8500, in which there shall be a controversy between citizens

Ira D. Warren and John Bassett, Jr., for the motion. D. M. Porter and George Il. 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 defeudant, 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



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