the presence of the other defendants as parties in the cause." The express provision is that the suit as between the plaintiff (a citizen of the state,) and the other defendant (also a citizen of the same state with the plaintiff,) shall proceed in the State court notwithstanding such removal to the Federal court. As between the plaintiff and the non-resident defendant (citizen of another state,) the cause proceeds in the Federal court. It must be admitted that this is a singular result. The plaintiff's single action is thus split into two-one of which remains in the State court to be adjudged by it; the other goes to the Federal court to be adjudged by it. This act, it will be perceived, has no reference to cases in which all of the defendants are citizens of another state, (that being then provided for by section 12 of the Judiciary Act,) nor any reference to the cases in which the plaintiffs are citizens of any other state than that in which the suit is brought. Its obvious purpose was to give a right of removal, in the cases and on the terms prescribed, to the non-resident citizen who was joined as a defendant with a resident citizen, when sued by a resident plaintiff.18 It may be inferred that Congress doubted the power under the constitution (art. 3, sec. 2,) to authorize the removal of the whole case, since part of the case provided for would be between citizens of the same state. We say this may be inferred since otherwise we can scarcely conceive why it is that Congress would divide one case into two, and embarrass the parties with the inconvenience and additional expense resulting therefrom. Speaking of this act Mr. Justice Clifford observes: "Considering the stringent conditions which are embodied therein, it is doubtful whether it will prove to be one of much practical value." The necessity for this act grew out of the narrow construction early placed on the Judiciary Act, the embarrassments arising from which had been so long felt, and have finally led to the act of March 3, 1875. The experience of the past should induce great caution in the courts

18 Bixby v. Couse, 8 Blatchf. 73; Allen v. Ryerson, 2 Dillon, 501; Field v. Lownsdale, 1 Deady, 288.

19 Case of Sewing Machine Companies, 18 Wall. 583.

in applying to that act the rigid principles of the early adjudications on the subject of Federal jurisdiction.20

*

*

"SEC. 7. Act of March 2, 1867.-" Prejudice or Local Influence." We now come to the act of March 2, 1867.21 It professes to be an amendment to the act of July 27, 1866, last noticed, and it extends the right, in the cases provided for, as well to plaintiffs as to defendants, but confines it to such as are non-residents of the state in which the suit is brought, and makes the ground of removal, not alone the citizenship of the parties, but prejudice or local influence. The act provides, "That where a suit is now pending or may hereafter be brought in any State court in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, such citizen of another state, whether he be plaintiff or defendant, if he will make and file in such State court an affidavit that he has reason to believe and does believe that from prejudice or local influence he will not be able to obtain justice in such State court," may have the cause removed to the circuit court of the United States. It will be seen that, as to the plaintiff, this follows the language of section II of the Judiciary Act, and not of section 12 of that act; the plaintiff may or may not be a resident of the state where the suit is brought; and the right of removal is given to the non-resident party, be he the plaintiff or defendant. Speaking of this act, Mr. Justice Miller in Johnson v. Monell, says: "The only conditions necessary to the exercise of the right of removal under it, are,

22

I. That the controversy shall be between a citizen of the state in which the suit is brought and a citizen of another

state.

2. That the matter in dispute shall exceed the sum of five hundred dollars, exclusive of costs.

3. That the party citizen of such other state shall file the: required affidavit, stating, etc., the local prejudice.

4. Giving the requisite surety for appearing in the Federal court." * * 66 Congress," says this able judge, "intended to give the right in every case where the four requisites we have mentioned exist." In the case just cited, the plaintiff was a citizen of Iowa, one defendant was a citizen of Nebraska, and the other of New York, but the last was not served with process and did not appear, and it was held that the plaintiff was entitled, under the act of March 2, 1867, to have the case transferred from the State court to the United States court, after a verdict of the jury in the State court in his favor had been set aside by the court. This act, let it be noted, only applies where one of the parties is a citizen of the state in which the suit is brought, and the adverse party is a citizen of another state-in this respect conforming to the previous legislation on the subject.23 This act undoubtedly grew out of the condition of affairs in the Southern states after the War of the Rebellion, and was intended to afford to plaintiffs who had resorted to the State court the

33 In the leading case on this statute, entitled in the report the Sewing Machine Companies' Case, it was decided that an action ex contractu, by a plaintiff who was a citizen of the state in which the suit was brought, against two defendants, citizens of other states, and a third defendant, a citizen of the same state as the plaintiff, was not removable under the act of 1867, upon the petition of the two non-resident defendants, (18 Wall. 553); and the same principle was reasserted in a subsequent case, where the removal of the whole suit under the act of 1867 was sought, and not of the suit as to the non-resident defendants under the act of 1866 Vannevar v. Bryant, 21 Wall. 41; Case v. Douglas, 1 Dillon, 299; John son v. Monell (change of residence), I Woolw. 390. See infra, sec. 10. In the case of Burnham v. Chicago, Dubuque & Minnesota Railroad Co., et. al, the circuit court of the United States, for the district of Iowa May term, 1876, decided the following: A foreclosure suit by trustees in a railway mortgage, who are citizens of Massachusetts, was commenced in one of the State courts in Iowa, against the debtor company, (which is an Iowa corporation,) making an Illinois and an Indiana corporation, each of which claimed liens upon the property, also defendants to the bill; this suit, after all of the defendants had answered, was removed, in 1876, to the circuit court of the United States for the district of Iowa, upon the petition of the plaintiffs under the act of 1867. Rev. Stat., sec. 639, sub-division 3. The debtor corporation moved to remand the same to the State court, because all of the defendants were not citizen,

right to transfer their suits to the Federal courts.24 This is the first act that in any event extended the right to a plaintiff to leave the forum he had voluntarily chosen, and in this respect was an entire departure from all the previous legislation. It is not so difficult to justify the act in this respect, even if it was intended to be permanent, as it is to sustain the provision that this removal may be had, on filing the general affidavit of prejudice or local influence, the truth of which cannot be contested or enquired into, "at any time before trial or final hearing of the suit." This provision occasions delay, and is often resorted to for that purpose. But the act of 1867 has been expressly adjudged by the Supreme Court to be constitutional,25 and Congress has not, in our judgment, repealed or modified it. There is no express repeal, and it is not, according to the better view, repealed by implication by the act of March 3, 1875, next to be noticed.26

In passing for the present from this act, we direct attention to Mr. Justice Miller's vindication of it. He says: “I do not join in the condemnation of the act of 1867. It does not allow the removal solely on the ground of citizenship. It requires the requisite citizenship to exist, and in addition thereto requires the existence of prejudice or local influence to be shown by affidavit. In this respect the policy of that act is not unlike that which prevails in perhaps all the states in regard to the change of venue from one county, or one judicial district, to another. Johnson v. Monell, 1 Woolw. 390. The object in each case is to secure an impartial tribunal, and the Federal courts are not courts for non-residents more than for residents, and no injustice is done to the latter to be compelled there to litigate controversies which they may have with citizens of other states."27

of the state in which the suit was brought. Held, inasmuch as the case was one clearly within sec. 2, of the act of March 3, 1875, in respect of removals, and the controversy one in relation to the priority of liens between citizens of different states, that the circuit court had jurisdiction and that it should not be remanded.

24 Gaines v. Fuentes, U. S. Sup. Court, Oct. term, 1875, 3 Cent. L. J. 371. 25 Chicago & N. W. Railway Co. v. Whitton's Admr. 13 Wall. 270. 26 Infra, sec. 8.

27 Farmers' etc. Trust Co. v. Maquillan, 3 Dillon, 379, 381.

SEC. 8. Act of March 3, 1875.-We now reach the act of March 3, 1875 (19 Stats. at Large, 470), entitled "an act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes."

The first section of the act relates to the original jurisdiction of the circuit court, civil and criminal, greatly enlarging the jurisdiction in civil cases, and conferring a jurisdiction concurrent with the courts of the several states, using for this purpose the language of article of the constitution (art. 3, sec 2,) which defines and limits the judicial power of the general government. The civil jurisdiction, as there conferred, is given in certain specified cases by reason of the subject-matter, irrespective of the citizenship of the parties, and in other cases by reason of citizenship, irrespective of the subject-matter. What is material to the present purpose is to notice the clause giving jurisdiction on the ground of citizenship. It removes the limitation prescribed by the Judiciary Act and by the prior removal acts, requiring one of the parties to the suit, that is, either the plaintiffs or the defendants, to be citizens of the state, where the suit is brought. On the contrary, the act of March 3, 1875, confers jurisdiction of all suits of a civil nature, over $500, in which there shall be a controversy between citizens of different states, without requiring any of the parties to be citizens of the state in which the suit is brought. The second section of the act relates to removals, [note to sec. 2, ante,] and as to the suits which may be removed, it follows the language of the first section. So that it is true, in general, that any cause may, at the proper time and in the prescribed mode, be removed from the State court to the circuit court of the United States, which, by reason of either its subject-matter or the citizenship of the parties, might have been instituted originally in the Federal

court.

The act of 1875 on the one hand, adds to or enlarges the classes of cases that may be removed, and on the other hand restricts the time in which the removal must be applied for within narrower limits than the acts of 1866 and 1867. The