might well have been decided that the jurisdiction of the Federal Court is not affected by the want of jurisdiction in the State court. The Federal Court has as full power as the State court had before removal.5 § 71. A suit arising under the patent-right, or copyright laws of the United States, or a suit for damages under the interstate commerce act, is not removable from a State court if begun therein.-Suits arising under the patent-right or copyright laws of the United States are not within the jurisdiction of State courts. The Circuit Courts of the United States have jurisdiction thereof;2 and such jurisdiction is exclusive. where it is held that a defence may | moval, when the same Circuit Court be available in a Federal Court would have had jurisdiction if the which could not be entertained by suit had been commenced in the the State court. State court in which the defendant In a case already cited it is well asserted that the suit should have said: been begun. "Wherever there is a total absence of jurisdiction over the subject-matter in the State court, so that it had no power to entertain the suit in which the controversy was sought to be litigated in its then existing or any other form, there can be no jurisdiction in the Federal Court to entertain it on removal, although in some other form it would have plenary jurisdiction over the case made between the parties." Fidelity Trust Co. v. Gill Car Co., 25 Fed. 737. See, also, post § 71. 4 It is held in one case that although the State court was without jurisdiction to grant an injunction, the Federal Court would have such jurisdiction after removal. Hower v. Weiss Malting & E. Co., 14 U. S. App. 210, 5 C. C. A. 129, 55 Fed. 356. So it is held that a plea in abatement, that a suit was begun in the wrong State court, was waived by the defendant by effecting a re Kelly v. Virginia Protection Ins. Co., 14 Fed. Cas. 274, 3 Hughes 449, 6 Reporter 738. 5 Fleitas v. Meraux, 47 La. Ann. 232, 16 So. 848. $71. 1 Parsons v. Barnard, 7 Johns. 144; Dudley v. Mayhew, 3 N. Y. 9; Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119, 15 Am. R. 470; DeWitt v. Elmira Nobles Manuf'g Co., 66 N. Y. 459, 23 Am. R. 73; Continental Store Service Co. v. Clark, 100 N. Y. 365, 3 N. E. 335; Hat Sweat Manuf'g Co. v. Reinoehl, 102 N. Y. 167, 6 N. E. 264. It is probable that this principle was not correctly applied in the two cases last cited. McCarty & Hall Trading Co. v. Glaenzer, 30 Fed. 387, 24 Blatchf. 269. 2 Rev. St. U. S., § 629, cl. 9;-even if a contract is incidentally involved As these suits are not within the concurrent original jurisdiction of State courts and of the United States Circuit Courts, and the jurisdiction of the United States Courts is not derived from section one of the present judiciary act, they are not removable under section two of such act.6 White v. Rankin, 144 U. S. 628, | the Federal Courts have concur12 Sup. Ct. 768, 36 L. 569; rent jurisdiction with State courts. Littlefield v. Perry, 21 Wall. 205, They do not apply to cases arising 22 L. 577; under the patent and copyright Atherton Mach. Co. v. Atwood-laws, as to which exclusive jurisMorrison Co.,-C. C. A-, 102 Fed. 949, reversing s. c., 99 Fed. 113; Dunham v. Bent, 72 Fed. 60; Young Reversible Lock-Nut Co. v. Young Lock-Nut Co., 72 Fed. 62; Everett v. Haulenbeek, 68 Fed. 911; Walter A. Wood Harvester Co. v. Minneapolis-Esterly Harvester Co., 61 Fed. 256; Rapp v. Kelling, 41 Fed. 792; Puetz v. Bransford, 32 Fed. 318. Rev. St. U. S., § 711, cl. 5: "The jurisdiction vested in the Courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: diction is vested in the Courts of Westinghouse Air-Brake Co. v. Great Northern R. Co., 59 U. S. App. 592, 31 C. C. A. 525, 88 Fed. 258; s. c., 84 Fed. 9; Spears v. Flynn, 102 Fed. 6; 609; Noonan v. Chester Park Athletic Club, 75 Fed. 334; Consolidated Fastener Co. v. Columbian Fastener Co., 73 Fed. 828; National Button Works v. Wade, 72 Fed. 298; Everett v. Haulenbeek, 68 Fed. "Fifth. Of all cases arising un-911; der the patent-right or copyright laws of the United States." 4 Ante § 6. 5 Ante § 7. • Ante §§ 63, 68, for decisions that the only suits removable are those of which original jurisdiction is given to United States Circuit Courts by section one of the present judiciary act. In Smith v. Sargent Manuf'g Co., 67 Fed. 801; Allen v. Blunt, 1 Fed. Cas. 444, 1 Blatchf. 480, 1 Fish. Pat. Rep. 303, 8 N. Y. Leg. Obs. 105. In Teas v. Albright, 13 Fed. 406, and in the same case on appeal, Albright v. Teas, 106 U. S. 613, 1 Sup. Ct. 550, 27 L. 295, it seems to be assumed that a suit Miller-Magee Co. v. Carpenter, arising under the patent laws would 34 Fed. 433, be removable from a State Court Judge (afterwards Justice) Jack to a United States Circuit Court, son said: "The acts of 1875 and 1887 both refer to that class of cases in which under section two of the act of 1875, ante § 7, note 7, as one arising under the laws of the United States. might well have been decided that the jurisdiction of the Federal Court is not affected by the want of jurisdiction in the State court. The Federal Court has as full power as the State court had before removal.5 § 71. A suit arising under the patent-right, or copyright laws of the United States, or a suit for damages under the interstate commerce act, is not removable from a State court if begun therein.-Suits arising under the patent-right or copyright laws of the United States are not within the jurisdiction of State courts.1 The Circuit Courts of the United States have jurisdiction thereof;2 and such jurisdiction is exclusive. where it is held that a defence may | moval, when the same Circuit Court be available in a Federal Court would have had jurisdiction if the which could not be entertained by suit had been commenced in the the State court. State court in which the defendant In a case already cited it is well asserted that the suit should have said: been begun. "Wherever there is a total absence of jurisdiction over the subject-matter in the State court, so that it had no power to entertain the suit in which the controversy was sought to be litigated in its then existing or any other form, there can be no jurisdiction in the Federal Court to entertain it on removal, although in some other form it would have plenary jurisdiction over the case made between the parties." Fidelity Trust Co. v. Gill Car Co., 25 Fed. 737. See, also, post § 71. 4 It is held in one case that although the State court was without jurisdiction to grant an injunction, the Federal Court would have such jurisdiction after removal. Hower v. Weiss Malting & E. Co., 14 U. S. App. 210, 5 C. C. A. 129, 55 Fed. 356. Kelly v. Virginia Protection Ins. Co., 14 Fed. Cas. 274, 3 Hughes 449, 6 Reporter 738. 5 Fleitas v. Meraux, 47 La. Ann. 232, 16 So. 848. $71. 1 Parsons v. Barnard, 7 Johns. 144; Dudley v. Mayhew, 3 N. Y. 9; Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119, 15 Am. R. 470; DeWitt v. Elmira Nobles Manuf'g Co., 66 N. Y. 459, 23 Am. R. 73; Continental Store Service Co. v. Clark, 100 N. Y. 365, 3 N. E. 335; Hat Sweat Manuf'g Co. v. Reinoehl, 102 N. Y. 167, 6 N. E. 264. It is probable that this principle was not correctly applied in the two cases last cited. McCarty & Hall Trading Co. v. Glaenzer, 30 Fed. 387, 24 Blatchf. 269. So it is held that a plea in abate- 2 Rev. St. U. S., § 629, cl. 9;-even ment, that a suit was begun in the if a contract is incidentally inwrong State court, was waived by volvedthe defendant by effecting a re As these suits are not within the concurrent original jurisdiction of State courts and of the United States Circuit Courts, and the jurisdiction of the United States Courts is not derived from section one of the present judiciary act, they are not removable under section two of such act.6 White v. Rankin, 144 U. S. 628, the Federal Courts have concur12 Sup. Ct. 768, 36 L. 569; rent jurisdiction with State courts. Littlefield v. Perry, 21 Wall. 205, They do not apply to cases arising 22 L. 577; under the patent and copyright Atherton Mach. Co. v. Atwood-laws, as to which exclusive jurisMorrison Co., C. C. A—, 102 Fed. 949, reversing s. c., 99 Fed. 113; Dunham v. Bent, 72 Fed. 60; Young Reversible Lock-Nut Co. v. Young Lock-Nut Co., 72 Fed. 62; Everett v. Haulenbeek, 68 Fed. 911; Walter A. Wood Harvester Co. v. Minneapolis-Esterly Harvester Co., 61 Fed. 256; Rapp v. Kelling, 41 Fed. 792; Puetz v. Bransford, 32 Fed. 318. Rev. St. U. S., § 711, cl. 5: "The jurisdiction vested in the Courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: diction is vested in the Courts of Westinghouse Air-Brake Co. v. Great Northern R. Co., 59 U. S. App. 592, 31 C. C. A. 525, 88 Fed. 258; s. c., 84 Fed. 9; Spears v. Flynn, 102 Fed. 6; Lederer v. Rankin, 90 Fed. 449; Earl v. Southern Pac. Co., 75 Fed. 609; Noonan v. Chester Park Athletic Club, 75 Fed. 334; Consolidated Fastener Co. v. Columbian Fastener Co., 73 Fed. 828; National Button Works v. Wade, 72 Fed. 298; Everett v. Haulenbeek, 68 Fed. Miller-Magee Co. v. Carpenter, arising under the patent laws would 34 Fed. 433, be removable from a State Court Judge (afterwards Justice) Jack-to a United States Circuit Court, son said: "The acts of 1875 and 1887 both refer to that class of cases in which under section two of the act of 1875, ante § 7, note 7, as one arising under the laws of the United States. The United States Circuit and District Courts have jurisdiction, exclusive of the State courts, of suits for damages aris It is very doubtful if this as-is no suggestion that plaintiff's sumption is correct. However complaint was based upon the patthat may be, the second section of ent statute. The State court in the act of 1875 as amended in 1887-8, which the suit was brought thereante § 7, expressly limits the right fore had jurisdiction of it. of removal, as the corresponding section of the act of 1875, before amendment, did not, to "any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the Circuit Courts of the United States are given original jurisdiction by the preceding section." Turning to the preceding section of the act of 1875 as amended by the act of 1887-8, ante § 6, we find that it deals wholly with suits of which "the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States," and has nothing whatever to do with those suits of which "The jurisdiction vested in the Courts of the United States shall be exclusive of the courts of the several States," Rev. St. U. S., § 711, as suits under the patent-right and copyright laws. United States v. Mooney, 116 U. S. 104, 6 Sup. Ct. 304, 29 L. 550, affirming s. c., 11 Fed. 476; Price v. Abbott, 17 Fed. 506; Hoyt v. Bates, 81 Fed. 641. There are cases asserting the removability of patent suits, as arising under the laws of the United States. Post § 71a, cases cited note 4. The suit was removed upon a petition of defendant stating a desire to make a defence based upon Rev. St. U. S., § 4898, relating to the recording of assignments of patents. It is well settled by subsequent decisions of the Supreme Court that the right of removal is given as to a "suit ... arising under the .. laws of the United States," that is, where the plaintiff's cause of action arises under such laws, and not to a suit not so arising, but in which the defendant wishes to avail himself of a defence arising under such laws. Post § 101. That case was, therefore, improperly removed. In the last case cited, the Court said: "The substantial controversy is as to the infringement of a patent, and therefore the jurisdiction thereof is vested in the Courts of the United States, to the exclusion of those of the several States. The motion to remand is denied." From the premise stated, that the suit was one arising under the patent-right laws and within the exclusive jurisdiction of the United States Courts, and one overlooked by the Court, that to be removable a suit must be one of which "the Circuit Courts of the United States American Solid Leather Button Co. v. Empire State Nail Co., 47 Fed. 741; Moyes v. Stirling Co., 71 Fed. shall have original cognizance, concurrent with the courts of the sevIn the first of these cases, there eral States," the conclusion should 433. |