Bright . Milwaukee, &c. R. R. Co.

exercise of the power conferred by the Code. After the court has determined that an allowance is proper, the allowance, as it seems to me, becomes just as much a part of the costs of the prevailing party as his statutory costs.

Now the general term have held that costs should be imposed upon the plaintiff as a condition for allowing him to discontinue, and they have permitted an application for an allowance. This appears to be an intimation that the justice at chambers has power to grant an allowance, if the facts in his opinion entitle the defendants to an allowance; and as before observed, if the court has jurisdiction to impose costs, I do not see how the conclusion can be resisted that it has power to grant an allowance. The general term therefore appear to have left me no discretion as to the question of power, and the case must be disposed of as to the allowance, the same as any other case would be, in which an allowance is asked for.

In Coffin v. Coke (4 Hun, 616), this court held that in difficult and "extraordinary cases, an allowance may be made, under section 309 of the Code, where the plaintiff discontinues the action before trial on payment of costs."

And in that case an allowance was granted. The only difference between that case and the present is,. that there the plaintiff offered to pay costs, while in this the court has directed them to be paid.

This brings me to the last question in this casewhich is, whether it is difficult and extraordinary. No one can, I think, read the printed volume which was handed up on the argument of the motion, without recognizing the fact that this is a difficult and most extraordinary case.

On an ex-parte application, a receiver was appointed of the defendants' railroad and property, described in the mortgages and trust-deeds, and of the

VOL. I.-2

Leutze v. Butterfield.

stock, goods and effects, bonds and accounts of the defendants, so far as the same refer to, or have any relations to the said road and property described in said mortgages or trust-deeds, &c., and the defendants were put under an injunction of a most severe and stringent character; and all this upon the security of an undertaking executed by the plaintiff alone, without surety, in the sum of two hundred and fifty dollars.

Under these circumstances, I entertain no doubt that the defendants are entitled to an allowance, and a thorough examination of the printed documents and affidavits submitted, leads me to the conclusion that the full amount of two thousand dollars should be granted.

Orders may be entered in accordance with these views, and the defendants are entitled in each case to the costs of the motion.

LEUTZE v. BUTTERFIELD.

New York Common Pleas, Special Term; March,

1876.

WHAT CAUSES MAY BE REMOVED TO UNITED STATES CIRCUIT COURT.

--an

Under the act of 1875,-allowing a removal of causes from the State courts to the United States circuit courts in certain cases,action in favor of an assignee (other than of negotiable paper), cannot be removed unless the United States court could have taken cognizance of the action, if no assignment had been made.

Trevor C. Leutze sued William Butterfield in this court, for goods sold and delivered by one Elmer

Leutze v. Butterfield.

Townsend, of Boston, the demand having been, after Townsend's death, assigned by his administrator, H. E. Townsend, to Leutze, the plaintiff. Defendant was served with summons and complaint, Feb. 17, 1876; and an attachment against his property, on the ground that he was a non-resident, was issued, and on Feb. 18, 1876, he appeared generally, by attorney, and on the 25th gave an undertaking to secure a discharge of the attachment. On March 8, 1876, before answer, he presented the bond and petition for a removal of the cause to the United States circuit court, under the act of 1875 (p. 22, below). The petition stated that the defendant was a citizen and resident of Massachusetts, and the plaintiff a citizen and resident of New York.

The plaintiff presented, in opposition to the motion, an affidavit alleging, among other things: "That this suit is brought to reduce to possession a chose in action. That the plaintiff is the owner thereof by assignment. That the assignor thereof is H. E. Townsend, who, at the time this suit was brought was, and now is a citizen of the same State as defendant."

Clarence A. Seward (John Henry Hull, attorney), for the motion.

Edward D. McCarthy, opposed.

VAN BRUNT, J.-(After referring to the above facts.) This motion must necessarily be governed by the act of Congress of March 3, 1875, which seems to have been intended to supersede all previous legislation upon the subject of the removal of causes from the State courts to the United States circuit court. Upon reading the first and second sections of that act, So far as applicable to cases similar to the one at bar, may appear that the provisions of section second are contrary to the restriction of the first section; but I

it

Leutze v. Butterfield.

think it is possible to harmonize them so as to give each its proper force and effect.

Section 1, after stating in what cases the circuit court of the United States shall have original cognizance, concurrent with the courts of the several States (among which it enumerates suits in which there shall be a controversy between citizens of different States), provides: "And no civil suits shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; .. nor shall any

circuit or district court have cognizance of any suit founded on contract, in favor of an assignee, unless a suit might have been prosecuted in such courts to recover thereon if no assignment had been made, except in cases of promissory notes, negotiable by the law merchant, and bills of exchange."

'no

If this section stood alone it might be difficult to see why Congress, in the act in question, in the latter clause of the paragraph quoted, has made use of language so different from that used in the first paragraph. When they desire to prevent suits being brought, except in certain districts, they simply said that " civil suits shall be brought," &c.; but when they desire to restrict the circuit court from entertaining jurisdiction of suits brought by an assignee, except in certain cases, they say "that no circuit or district court shall have cognizance of any suit founded on contract," &c.; not that no civil suit in favor of an assignee shall be brought before them by any original process, &c., unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made; but they say that circuit courts shall not have cognizance of such suits, unless, &c.

This language is much more comprehensive; and it is difficult to see how stronger language could have been used to show that Congress did not intend that

Leutze v. Butterfield.

circuit courts should entertain suits by an assignee, whether brought in these courts by original process or otherwise, unless the action might have been prosecuted in such courts if no assignment had been made. Section 2 then provides: "That any suit of a civil nature at law or in equity, now pending, or hereafter brought in any State Court. . . . in which there shall be a controversy between citizens of different States may be removed by either party into the Circuit Court of the United States for the proper district."

...

If the construction is placed upon section 2 that the removal of this cause requires, then, notwithstanding Congress in section 1 has said, not only that no suit, such as the one at bar, shall be commenced by original process in the circuit court, but that such court shall not have cognizance of a suit where the parties are situated as they are in this case, merely because the action was commenced in a State court, and is removed to the circuit court, pursuant to section 2, the positive prohibition of section 1 is overcome. Section 1, in the most positive language, prohibits the circuit courts from entertaining any such case; and the only construction that can harmonize the two sections seems to be that section 2 is meant to apply only to cases in which jurisdiction has been conferred upon circuit courts, although it does not expressly say so. If this is not the true construction, I am unable to see why, in speaking of suits like the one at bar, Congress should have made use of the word cognizance, and have used it only in that connection.

that it was intended to provide for the cases in which circuit courts should obtain jurisdiction otherwise than by original process, and to prevent the circuit courts entertaining, in any manner, suits brought by assignees, unless they could have acquired jurisdiction of such action if no assignment had been made. It is clear that if no assignment had been made the circuit courts