citizen of the state against a citizen of another state to remove the suit by petition made at the time of entering his. appearance. Under this act it was invariably held that a cause could not be removed unless all the material plaintiffs were citizens of the state in which the suit was brought, and all the material defendants citizens of some other state or states, and unless the application was made by all of the defendants. No removal could be had if any one of the material parties defendant was a citizen of the same state with any one of the material plaintiffs, nor if the requisite citizenship of all the opposing litigants did not exist, nor unless all of the material defendants concurred in the application, though at different times. Ward v. Arredondo, I Paine, 410. The act of July 27th, 1866, undertook to allow one defendant, in certain cases, to remove the suit where there could be "a final determination of the controversy, so far as concerns him, without the presence of the other defendants as parties in the cause," leaving the suit in the state courts as to the other defendants. In Gardner v. Brown, 21 Wall. 36, the application for removal was under this statute. The bill was filed by a creditor, whose debt was secured by a trust. assignment of realty, against the grantor and trustee to enforce the execution of the trust. The creditor and the trustee were citizens of the state in which the suit was brought, while the grantor, the debtor, was a citizen of a different state. It was held that the latter could not remove the cause to the federal court. A similar decision, under the twelfth section of the judiciary act, had been made by the Supreme Court of Tennessee in Dunn v. Waggoner, 3 Yer. 59, the opinion having been delivered by Catron, C. J., afterwards an eminent associate justice of the Supreme Court of the United States. The act of Congress of the 2d of March, 1867, gave a defendant, against whom a suit was brought in a state court by a citizen of the state, and who was a citizen of another state, the right of removal upon affidavit that, from prejudice or local influence, he believed he would not be able to obtain justice in the state court. It was thought by even such distinguished judges as Mr. Justice Miller and Judge Dillon.

that one defendant of several might, under this act, remove a suit as to all of the defendants, although some of them were citizens of the same state with the plaintiffs. Johnson v. Monell, Woolw. 390; Sands v. Smith, I Dill. 290. But the Supreme Court of the United States decided otherwise where the suit was ex contractu in the case of the Sewing Machine Companies, 18 Wall. 553, and where the action was in tort in Vannevar v. Bryant, 21 Wall. 41. And in Knapp v. Railroad Company, 20 Wall. 124, Mr. Justice Davis says of the act, that "it does not change the settled rule that determines who are to be regarded as the plaintiff and defendant."

There is nothing in the act of 1875, unless we resort to a very "liberal construction" indeed, which expressly changes, or even discloses an intention of changing, the preëxisting law in this regard, but rather the contrary. Its close adherence to the letter of the earlier enactments would indicate a clear intent to adhere to the settled construction and usage, while the use of the words "a controversy which is wholly between citizens of different states, and which can be fully determined as between them," seems designed to remove all doubt as to the legislative will. The first section of the act of 1875 enlarges the original jurisdiction of the Circuit Courts of the United States, using for this purpose, upon the matter now under consideration, the very words of the constitution, but containing nothing implying an intention to require a departure from the uniform construction put upon similar language in the previous decisions. The second section, touching the removal of causes, enacts: "That any suit of a civil nature, at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, * in which there shall be a coneither

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troversy between citizens of different states, party may remove said suit into the Circuit Court of the United States for the proper district. And when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either

one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district."

Looking at the general scope of this section, without critically scrutinizing its words, it would not seem to be intended to effect a radical change in the existing construction of statutes in pari materia. The privilege of removal is conceded to both plaintiff and defendant, and the enactment is more nearly in the words of the constitution. The first paragraph, if we lay no stress upon the use of the words "suit" and "controversy," is, in substance, the twelfth section of the judiciary act of 1789, only extending the privilege of removal to both the plaintiff and defendant instead of the defendant alone. In that view, the uniform construction of the original section would apply, namely, that the removal cannot be had unless all the material plaintiffs and all the material defendants are citizens of different states, nor unless all the material parties on one side concur in applying for the removal. The meaning given to similar language by uniform judicial construction must prevail in the absence of anything to show a clear intent to work a change. The second clause contemplates only the removal of a suit or controversy which is "wholly between citizens of different states and which can be fully determined between them." If the intention was to remove the entire suit as to all parties, without regard to citizenship, merely because there was in it a controversy between citizens of different states, at the instance of one of those parties, then the words “which can be fully determined as between them" were worse than useless. These words fairly imply that the suit or controversy may be removed as to them, whenever the controversy could be fully determined between them, but not otherwise.. This is precisely the provision of the act of 1866 which was construed in Gardner v. Brown, 21 Wall. 36, and the decision was that the suit could not be removed if any one of the material parties on the same side as the applicant did not have the requisite citizenship. The act of 1866, it is true, went on to expressly provide that the removal in the contingency

contemplated should not prejudice the right to continue the litigation in the state court between the other parties. But it is obvious such a provision was supererogatory; for, if the right to remove was confined to the matter of controversy, which could be wholly determined between the parties to the removal, the jurisdiction of the state court would necessarily remain undisturbed in all other respects. That jurisdiction can only be affected by extending the judicial power of the general government, within the provision of the constitution, over the subject-matter and the parties.

The argument has been made by some of the learned circuit and district judges that the act of 1875 provides that when in any suit there is a controversy between citizens of different states, either party may remove the suit, and that this language authorizes, upon the application of one of several plaintiffs or defendants, the removal of the whole suit as to all parties, without regard to citizenship. This construction ignores the words, "which can be fully determined between them," already commented on. The right of removal is made to depend entirely upon the very fact that the controversy may be fully determined between these citizens of different states; and why it should be so if the entire suit is to be removed, it is difficult to understand. Besides, the act of 1867 used identically the same language, that where a suit is pending in which there is a controversy between, etc., the party may apply to remove the suit. was the use of this very language which led to the decision of Judge Dillon in Sands v. Smith, 1 Dill. 290. And precisely the same argument was made before the Supreme Court of the United States in the case of the Sewing Machine Companies. Mr. Justice Clifford, in delivering the opinion of the court in that case, says of this argument: "It is difficult to see in what particular the jurisdiction of the state court is lessened by the last act (the act of 1867), or in what respect the difference in phraseology supports the theory of the defendants, as 'a suit by a plaintiff against a defendant' must mean substantially the same thing, in the practical sense, as 'a suit in which there is a controversy

between the parties,' as each provision includes the word 'suit,' which applies to any proceedings in a court of justice in which the plaintiff pursues his remedy to recover a right or claim." The learned justice emphatically condemns the suggestion that one party, who may bring himself within the letter of the act of Congress, can carry with him, against their will, all other parties. "Nor does it (the act of 1867)," he says, "give any sanction whatever to the proposition that the resident defendant shall be compelled or permitted, under any circumstances, to go elsewhere to answer the suit." To the same effect is the language of Mr. Justice Davis in Knapp v. Railroad Company, 20 Wall. 117.

The argument relied on, pushed to its logical results, would enable a single non-resident party, either plaintiff or defendant, to remove from the state court into the federal court the administration of estates, the settlement of trust assignments, creditors' bills, or any kind of case, however numerous the resident parties, and carry with him in invitum all the other parties. When it is considered how little the machinery of the judicial system of the United States is adapted for such an increase of its business, and how ruinously it would affect a large class of litigants to be compelled to attend these courts from remote distances, it is not to be supposed that Congress would so extend the judicial power of its courts, even if it had the constitutional authority, without the clearest and most unequivocal declaration of intention to that effect. The acts under consideration contain no such declaration, nor fairly imply any such intent. The only suit or controversy which can be removed is one "which is wholly between citizens of different states, and one which can be fully determined as between them." And this positive provision repeals any provisions of previous statutes in conflict therewith, if such there be.

The language of the constitution of the United States is that the judicial powers shall extend to "controversies between citizens of different states." To come within this language the opposing litigants must be citizens of different states. The object of the provision was to secure an impar