such purchase money from the date of the purchase to the date of eviction. Such interest is merely an element of damage by the eviction and is not separately considered as interest. The principal sum is the damage sustained by the eviction, not the purchase price of the land. The method by which such damage is calculated, that it is reached by adding interest on the purchase price to the purchase price itself, is not controlling. In a suit to enforce a building and loan association mortgage where the amount contracted to be paid exceeds $2,000, and "no such legal inference arises from the facts stated in the bill," the inference will not be indulged, upon a demurrer to the bill of complaint for

This construction of the act was adopted by Judge Simonton in an earlier case.

Moore v. Edgefield, 32 Fed. 498. • Brown v. Webster, 156 U. S. 328, 15 Sup. Ct. 377, 39 L. 440.

In that case the contention of the plaintiff in error (defendant below) was that

damage which the party was entitled to recover. Whether, therefore, the Court below considered the interest as an instrument or means for ascertaining the amount of the principal demand, is wholly immaterial, provided the principal demand as made and ascertained was within the jurisdiction of the Court. Indeed, the confusion of thought which the assertion of want of jurisdiction involves is a failure to distinguish between a principal and an accessory demand. The sum of the principal demand determines

"as the measure of the damage was price and interest, the price being below $2,000, the jurisdictional amount could not be arrived at by adding the interest to the price." But the Court, per Justice White, the question of jurisdiction; the said:

"This contention overlooks the elementary distinction between interest as such and the use of an interest calculation as an instrumentality in arriving at the amount of damages to be awarded on the principal demand. As we have said, the recovery sought was not the price and interest thereon, but the sum of the damage resulting from eviction. All such damage was, therefore, the principal demand in controversy, although interest and price and other things may have constituted some of the elements entering into the legal unit, the

accessory or the interest demand cannot be computed for jurisdictional purposes. Here the entire damage claimed was the principal demand without reference to the constituent elements entering therein. This demand was predicated on a distinct cause of action

eviction from the property bought. Thus considered, the attack on the jurisdiction is manifestly unsound, since its premise is that a sum, which was an essential ingredient in the one principal claim, should be segregated therefrom, and be considered as a mere accessory thereto."

want of jurisdiction, "that the whole scheme is a mere cover to conceal a usurious exaction of interest for the loan of a sum of money not exceeding in any event $2,000."7

There would seem to be little room for controversy as to what are costs.8 But the Courts have been called upon to decide some questions relative thereto. Protest fees of a notary public upon a note are "costs" and are excluded in determining the amount in controversy, in a suit upon the note. An attorney's fee for plaintiff's attorney is a part of the matter in dispute, and not of the costs, in a suit upon a note or mortgage providing for the payment of such fee by the defendant.10

§ 98. The sum or value which plaintiff seeks to recover is the sum or value in dispute to determine jurisdiction upon removal, and a counter-claim by defendant cannot

7 Building & Loan Ass'n v. Price, 169 U. S. 45, 18 Sup. Ct. 251, 42 L. 655.

Compare

Turner v. Southern H. B. & L. Ass'n, 41 C. C. A. 379, 101 Fed. 308;

gation to pay the association a reasonable attorney's fee, is not, we think, in any sense, costs, as mentioned in the act of 1887-88, but is a liability which should be included in estimating the amount in con

Building & Loan Ass'n v. Price, 18 Tex. Civ. App. 370, 46 S. W. 92. Other building and loan associa-troversy. It is true that in this tion cases in which the sum in dis- provision of the contract the atpute for jurisdictional purpose is torney's fee is considered as an considered are expense of collection of the mortgage debt, and it might be argued therefrom that it is not an existing liability as of the date of the bringing of the suit, since it was to be an expense of collection; but, con8 Day v. Woodworth, 13 How. struing the entire contract, it is 363, 372, 14 L. 181, 185; quite clear that the liability for Abbott's Law Dictionary, title the attorney's fee exists at the "Costs"; time of the institution of either a

Building & L. Ass'n v. Cunningham, 92 Tex. 155, 47 S. W. 714.

Bouvier's Law Dictionary, title legal or equitable proceeding, and "Costs"; the fee, when ascertained, is to be

Am. & Eng. Enc. Law (1 Ed.), included in the judgment for the

"This, being a contractual obli- 288, 13 S. E. 591.

be added thereto to make the jurisdictional sum.-The better reason supports the statement that the sum or value put in issue by the plaintiff's complaint determines the question of jurisdiction upon removal, and that a counter-claim by the defendant cannot be added to make the jurisdictional amount. We have already seen1 that to be removable, a suit must be one of which a Circuit Court of the United States could take original jurisdiction under § 1 of the present judiciary act. It is clear that the sum or value put in issue by plaintiff's complaint is, under that section, the jurisdictional criterion in a suit begun in a United States Circuit Court. The same jurisdictional test must be applied when the suit is brought in a State court. The weight of authority supports the theory of the law that a counter-claim cannot be considered in determining the amount in dispute.3. But there are decisions to the contrary.

$ 98.

1 Ante § 7, 63.

2 Ante § 6.

The most careful discussion of the subject to be found in the reports is in

sought to be recovered by plaintiff, to make the matter in dispute exceed the jurisdictional limit in

Lee v. Continental Ins. Co., 74 Fed. 424;

Carson & Rand Lumber Co. v.

La Montagne v. Harvey Lumber Holtzclaw, 39 Fed. 578;

Co., 44 Fed. 645.

Other cases are

Bennett v. Devine, 45 Fed. 705;

Falls Wire Mfg. Co. v. Broderick,

6 Fed. 654, 2 McCr. 489.

Clarkson v. Manson, 4 Fed. 257, 18 Blatchf. 443.

The question was somewhat discussed in

New York I. & P. Co. v. Milburn

Though not directly in point, the Gin & M. Co., 35 Fed. 225, decision in

and the conclusion was reached that

West v. Aurora, 6 Wall. 139, 18 the general question need not be deL. 819, cided; for the State court could not, has some relevancy to this question. under the law of its creation, acThe decision in

Wolcott v. Sprague, 55 Fed. 545, is not in conflict with these cases; for in that case the plaintiff's bill asked a cancellation of the $4,000 mortgage which defendant sought by cross-bill to enforce.

A counter-claim asserted by the defendant against the plaintiff, and filed in the State court before the removal, was added to the amount

quire jurisdiction of a sum large enough, in that action, to warrant a removal, and the attempt to give the United States Circuit Court jurisdiction by filing a counterclaim in a State court which had no jurisdiction of it, and then removing it to the United States Circuit Court, was ineffective.

Ante § 70, note 1.

The cases which hold that a

§ 99. Where a suit involves a pecuniary right, and the sum or value thereof does not appear from the record of the State court at the time a removal is sought, the petition for removal should allege such sum or value.— We have already noted that a petition for removal cannot make a case involve a pecuniary sum or value, when it manifestly appears from the cause of action asserted in the State court that the suit involves no pecuniary right. We have noted, too, that if the right asserted is a pecuniary one, and the amount which plaintiff seeks to recover, as shown by the record of the State court, is $2,000 or a less sum, the defendant cannot procure a removal by alleging in his petition for removal that the sum or value in dispute exceeds such sum.2 Where the plaintiff's pleadings on file in the State court when a removal is applied for disclose that the sum or value in dispute exceeds $2,000, a failure of the petition for removal to allege such sum or value will not defeat a removal. The burden is on a party seeking a removal to show

counter-claim may be considered | purpose of a removal, an unexin computing the sum in dispute ecuted intention of the defendant to determine appellate jurisdiction to file such a pleading will not are not in point here. warrant a removal.

Bradstreet Co. v. Higgins, 112 U. S. 227, 5 Sup. Ct. 117, 28 L. 715; Ryan v. Bindley, 1 Wall. 66, 17 L. 559.

Sturgeon River Boom Co. v. Sawyer Lumber Co., 89 Fed. 113. $99.

1 Ante § 80, note 3, quoting Caswell v. Caswell, 120 Ill. 377, 11 N. E. 342.

Appellate jurisdiction is determined by the sum or value in dispute at the end of a suit; the original jurisdiction of a United States Circuit Court, and hence jurisdiction by removal, by the sum or value in dispute at the beginning of the suit (and which continues to be in dispute when a removal is sought), by the matter put in issue by the bill, complaint, or petition, or, in some jurisdic-held to be immaterial. tions, by the damages stated in the original writ.

2 Ante § 80, note 3, citing Middledleton v. Middleton, 87 Iowa 292, 54 N. W. 143.

3 Reed v. Hardeman County, 77 Tex. 165, 13 S. W. 1024.

Conceding that a set-off or counter-claim when filed in the State court may be considered in determining the sum in dispute for the

In that case the complaint showed the value to exceed $2,000, but the petition for removal alleged the value to exceed $500; and this was

Compare post § 159.

4 Keith v. Levi, 2 Fed. 743, 1 McCr. 348.

The allegation of value should be positive, certain and specific. It has been held insufficient to al

that the sum in dispute is sufficient to give jurisdiction upon removal. Where the right in dispute is a pecuniary one, and the sum or value thereof does not otherwise appear, the petition for removal should disclose the sum or value.5 It was formerly the rule in such cases, that the State court might determine the sum or value in dispute upon evidence submitted to it. The rule now is that the sum or value stated in the petition for removal is taken as true, and that all questions of fact must be determined in the United States Circuit Court. Where the suit is for the recovery of money, but it is uncertain from the record of the State court whether the plaintiff seeks to recover more or less than the jurisdictional sum, a positive averment of the petition for removal that the matter in dispute in the suit exceeds the jurisdictional sum will control. It should ordinarily be alleged in the petition

lege that the matter in controversy | by this Court, when its jurisdiction is "of the sum and value of over is invoked merely because of the $2,000, as petitioner is informed and diversity of citizenship of the parverily believes." ties. There is nothing in the pleadNew York & T. Land Co. v. Mar-ings by direct averment as to the tin (Tex. Civ. App.), 25 S. W. 475, amount or value of the matter in citing Wolff v. Archibald, 14 Fed. dispute, and no facts from which 369, 4 McCr. 481. it can be ascertained that the sum

5 Postal Tel. Cable Co. v. South- or value is less than the required ern Ry. Co., 88 Fed. 803; amount. The petition for removal Weber v. Travelers' Ins. Co., 45 alleges that the matter in dispute Fed. 657; exceeds, exclusive of interest and Langdon v. Hillside Coal & Iron costs, the sum or value of $2,000; Co., 41 Fed. 609; and this is not controverted either Banigan v. Worcester, 30 Fed. by a special plea by the complain392; ant or by affidavit, and it stands unchallenged in any way. motion is denied."

Southern Pac. R. Co. v. Harrison, 73 Tex. 103, 11 S. W. 168.

In Langdon v. Hillside Coal & Iron Co., supra, Judge Wallace said:

The

6 Ladd v. Tudor, 14 Fed. Cas. 923, 3 Woodb. & M. 325;

Southern Pac. R. Co. v. Harrison, 73 Tex. 103, 11 S. W. 168. 7 Post § 177.

8 Roberts v. Nelson, 20 Fed. Cas. 900, 8 Blatchf. 74, 10 Am. Law Reg. (N. S.) 115, 40 How. Prac. 387. Compare

"The motion to remand this suit to the State court from which it was removed upon the petition of the defendant, has no merit whatever. It proceeds upon the ground that the matter in dispute does not exceed the sum or value of $2,000, and consequently is not cognizable | 57 Fed. 913.

Yarde v. Baltimore & O. R. Co.,