The matter in dispute in a suit brought in a State court against the receiver of a National bank must exceed $2,000 to make it removable from such State court to a United States Court. It was held by Judge Baker in a very able opinion, and by Judge Thompson, and Judge Taft, that a receiver appointed by a United States Court has no right to remove to a United States Circuit Court a suit brought against him in a State court unless the amount involved is over $2,000; but the contrary was held by Judge Hanford, and the ruling has been followed by Judge Philips, and Judge Marshall.10 A consideration of the purpose Congress had in view in permitting a receiver appointed by a United States Circuit Court to be sued in a State court without leave of the United States Court appointing him will demonstrate that Judges Baker, Thompson, and Taft are right and Judges Hanford, Philips, and Marshall wrong.11

7 Hallam v. Tillinghast, 75 Fed. | statute, a receiver appointed by a 849; United States Circuit Court could Follett v. Tillinghast, 82 Fed. not lawfully be sued without leave of such Court.

241.

8 Ray v. Peirce, 81 Fed. 881; Pitkin v. Cowen, 91 Fed. 599 (both disapproving Carpenter v. Northern Pac. R. Co., 75 Fed. 850);

Barton v. Barbour, 104 U. S. 126,

26 L. 672;

Ray v. Peirce, 81 Fed. 881.
Such leave was almost univer-

followed in Gilmore v. Herrick, 93 sally denied, the action of Judge Fed. 525. Caldwell being a conspicuous exception.

Such a suit is not removable as one arising under a law of the United States in any event.

Post § 110.

It is suggested in Ray v. Peirce, supra, that a United States Circuit Court might possibly order the removal of a suit from a State court upon a proper showing under the last clause of § 3 of the present judiciary act, ante § 17.

9 Carpenter v. Northern Pac. R. Co., 75 Fed. 850.

19 Sullivan v. Barnard, 81 Fed. 886;

Dow v. Memphis & L. R. R. Co., 20 Fed. 260.

The purpose of the section permitting a receiver to be sued without leave of the Court appointing him was to correct abuses that had grown up under the former practice.

Central Trust Co. v. St. Louis, A. & T. R. Co., 40 Fed. 426.

It is well said by Judge Baker in Ray v. Peirce, supra, p. 882-3:

"To compel the claimant to prosecute a suit against the receiver

Shinney v. North American Sav- of a railroad for a small demand in ings, L. & B. Co., 97 Fed. 9. the Court of his appointment, gen

"Prior to the enactment of this erally remote from the claimant's

That there can be no removal of a suit from a State court to a United States Circuit Court on the ground of a diverse citizenship under the second clause of the second section of

residence, involved such incon- | the intention of Congress to permit venience and expense as to amount not only the bringing of suits in many cases to a practical denial | against a receiver but the prosecuof justice. Even an application to the Court who appointed the receiver for leave to sue in another court nearer the residence of the claimant and his witnesses was found to be inconvenient and expensive, and frequently such applications were met with denial. With the multitude of railroad receiverships, the evil became so intolerable that legislation was found necessary to secure relief."

It is the policy of the act to afford relief to persons injured through the wrongs of receivers appointed by Federal Courts, by permitting suits in the courts of the State, and without requiring the parties injured to suffer the hardship of appealing in small cases to the Court appointing the receiver or any other Federal Court. The mere right to sue in a State court is no relief at all, if the action, however small the amount involved, may be removed at will by the receiver to the Court which appointed him. No man can afford to sue a receiver for killing a pig or a calf, if there is a right to remove the suit to the United States Court, instead of disposing of it before a justice of the peace, as would otherwise be done.

To say that immediately upon the filing of a suit against a receiver for $2,000 or less as authorized by this statute, the receiver may remove it to the Federal Court, is not only to abridge and evade the act, but to nullify it. That it was

tion of such suits to final judgment
in the court where brought, at least
if the amount sued for is not in
excess of $2,000, is implied in the
act as clearly as the right to have
process, which Judge Caldwell says
in a case cited, supra, is as much a
part of the act because implied, as
though it had been expressed.

Central Trust Co. v. St. Louis,
A. & T. R. Co., 40 Fed. 426.
Judge Baker says in Ray v. Peirce,
supra, p. 883:

"The right to sue in the State court without procuring the leave of this Court includes the right to prosecute such suit to final judgment when the amount involved is $2,000 or less."

Judge Baker further says in that case, page 884:

"If, in suits involving $2,000 or less, brought in a State court, the receiver may at once remove them into a Court of the United States, then the right to sue secured to the claimant by the statute is rendered practically valueless. Such a construction would defeat the true meaning and intent of the statute. The statute abrogates the old rule on the subject of suing receivers. It is made lawful now to sue a receiver appointed by a Court of the United States without procuring the leave of that Court. The Court has no discretion to say when or where its receiver may be sued. The right to sne is given without condition or limitation, and, as was said by the Supreme Court, it

the present statute, 12 unless the matter in dispute exceeds $2,000, is too clear for dispute.12 The meaning of the third clause, as to a case involving a separable controversy, is not quite so clear; two constructions might be given to it.13 But the Supreme Court holds that it applies only to cases involving over $2,000.14 There was, for a time, a sharp conflict in the Circuit Court decisions as to whether the $2,000 clause of section one applies to suits removed under the fourth clause of section two, relating to prejudice and local influence.15 This conflict was silenced by a decision of the Supreme Court that the restriction of the right of removal to

'cannot be assumed to have been | adopting the line of argument prerendered practically valueless by sented in this volume. this further provision of the same section of the statute which granted it.'"

Then the Judge reviews the cases cited in

Gableman v. Peoria, D. & E. R. Co., 179 U. S. 335, 21 Sup. Ct. 171, 45 L.-.

See, further, as to suits against receivers appointed by

United

Carpenter v. Northern Pac. R. States Courts, post §§ 109, 110.

Co., 75 Fed. 850,

and demonstrates that they wholly fail to support the conclusion of the Court in the Carpenter case.

Since the foregoing was written, the Supreme Court has decided a case in which a receiver appointed by the Circuit Court for the Southern District of Illinois, when sued in a State court of Indiana, was held to have no right to remove the suit to the Circuit Court for the District of Indiana, as one arising under the Constitution or laws of the United States, although the sum sued for exceeded $2,000. The Supreme Court went beyond the case presented by the record and held, in effect, that the suit would not have been removable as ancillary to the suit pending in the Circuit Court for the District of Indiana, if the receiver sued had been appointed by that Court,

12 Ante § 7, clause 2.

12a Baltimore v. Postal Tel. Cable Co., 62 Fed. 500.

18 Ante § 7, clause 3.

14 Re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, 34 L. 738, quoted in note 16 to this section.

See further, as to removal of cases on account of separable controversies, post chapter IX. 15 Ante § 7, clause 4.

The leading case at Circuit holding that the right of removal given by clause four is independent of the restriction as to the amount in controversy is

Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 1 L. R. A. 65, decided by Judge (afterwards Justice) Jackson.

The leading case at Circuit holding the contrary doctrine is

Malone v. Richmond & D. R. Co., 35 Fed. 625, decided by Justice Harlan,

suits involving over $2,000, applies to all suits removed under clauses one, two, three, and four of section two.16

§ 82. May any suit be removed from a State court to a United States Circuit Court where the amount involved is not over $2,000?-Where the United States is plaintiff, a Circuit Court of the United States may take original jurisdiction of a suit, under the present statute, no matter how small the amount in controversy.

18 Re Pennsylvania Co., 137 U. S. Į 451, 11 Sup. Ct. 141, 34 L. 738, affirming, in effect, Roraback v. Pennsylvania Co., 42 Fed. 420, and approving Malone v. Richmond & D. R. Co., 35 Fed. 625.

The Supreme Court in Re Pennsylvania Co., supra, quotes the first four clauses of § 2, ante § 7 and construing them says:

"Here the first two clauses expressly require an amount exceeding two thousand dollars. The third clause, in referring to 'any suit mentioned in this section,' evidently means the two first clauses of the section, and, of course, is limited to cases in which the matter in dispute exceeds two thousand dollars. The fourth clause (the one in question) describes only a special case comprised in the preceding clauses. The initial words, And where,' are equivalent to the phrase, 'And when in any such case.' In effect, they are tantamount to the beginning words of the third clause, namely: 'And when in any suit mentioned in this section.'”

See further as to the removal of causes on account of prejudice or local influence, post chapter XIII. § 82.

1 United States v. Sayward, 160 U. S. 493, 16 Sup. Ct. 371, 40 L. 508 (overruling United States v. Huffmaster, 35 Fed. 83, 13 Sawy. 283);

So a United States Cir

United States v. Reid, 90 Fed.

522;

United States v. Belknap, 73 Fed. 19;

United States v. Winans, 73 Fed. 72;

United States v. Flourney LiveStock & Real-Estate Co., 71 Fed. 576;

United States v. Kentucky River Mills, 45 Fed. 273;

United States v. Shaw, 39 Fed. 433, 3 L. R. A. 232.

In the Sayward case, the Supreme Court re-arranges § 1 of the act of 1875 as amended by the act of 1887-8, thus:

"The Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity,—

"First, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and the suit is one arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority;

"Second, of any controversy in } which the United States are plaintiffs or petitioners;

"Third, of any controversy between citizens of different States in which the matter in dispute

cuit Court may take original jurisdiction of a suit between citizens of the same State claiming lands under grants of different States, without regard to the value of such lands." An ancillary suit may be begun in a United States Circuit Court though the amount involved is less than $2,000.3

The jurisdiction of a United States Circuit Court by removal from a State court is not quite so extensive as by original process. That is, there are some cases that may be commenced in a United States Circuit Court that could not be removed thereto from a State court. There is no separate clause in section two giving a right of removal on the ground that the suit has been brought by the United States. A construction may be given to clause two of this section which will authorize a removal of a suit of a civil nature at law or in equity brought by the United States in a State court for the recovery of any sum, large or small, if the defendant is a non-resident of the State in which the suit is brought.5 A

exceeds, exclusive of interest and
costs, the sum or value aforesaid;
"Fourth, of any controversy be-
tween citizens of the same State
claiming lands under grants of dif-.
ferent States;

"Fifth, of any controversy between citizens of a State and foreign states, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid."

The United States must be the real plaintiff to come within the statute. Where it is only a formal plaintiff for the benefit of relator, the rule stated in the text does not apply.

Post § 132;

The Supreme Court says in the Sayward case, supra:

66

Congress intended that a Circuit Court should take cognizance . . of a controversy between citizens of the same State claiming lands under grants of different States, without regard to the amount involved."

See, also, the quotation from the same case in note 1 to this section. 8 White v. Ewing, 159 U. S. 36, 15 Sup. Ct. 1018, 40 L. 67. 4 Ante § 7.

5" Suits of a civil nature, at law or in equity, in which the United States are plaintiffs, without reference to the amount involved, may be removed by the defendant, if

wherein suit is brought." Fales v.

United States v. Henderlong, 102 he is a non-resident of the State Fed. 2; United States v. Douglas, 113 Chicago, M. & St. P. Ry. Co., 32 N. C. 190, 18 S. E. 202. Fed. 673.

2 United States v. Sayward, 160 U. S. 493, 16 Sup. Ct. 371, 40 L. 508; United States v. Kentucky River Mills, 45 Fed. 273, 275.

In this case, Judge Shiras adopts, also, the theory that a suit may be removed on the ground of prejudice or local influence though it