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dispute is any more than the plaintiff claims by his proofs, simply because he alleged a breach of the conditions of the bond in damages to the extent of $6,000, and because, in form, he would take a judg ment for that sum, but could issue execution only for $1,590.

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If this contention could be supported, it would completely nullify the provisions of section 5 of the act of congress of March 3, 1875 (18 Stat. pt. 3, p. 472), which provides "that if, in any suit commenced in a circuit court it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought that such suit does not really and substantially involve a dispute or controversy, properly within the jurisdiction of said circuit court the said circuit court shall proceed no further therein, but shall dismiss the suit and shall make such order as to costs as shall be just." Whatever the rule may have been previous to the enactment of the jurisdiction law of 1875, it would seem pretty clear, under this provision, that the parties cannot, by making the proper allegations in the pleadings, give this court jurisdiction, if it shall appear by the plaintiff's own showing that the amount really and substantially in dispute does not exceed the sum of $2,000, exclusive of the interest and costs, according to the provision of the jurisdiction act of August 13, 1888 (25 Stat. p. 434).

The provision of the law first above cited was new in the jurisdiction, act of 1875, and it is difficult to see why it does not cover the case at bar. If the court could take jurisdiction of this case, it could take jurisdiction of any case on a penal bond for more than $2,000, provided the claim for damages in the declaration exceeded that sum, though the amount actually and equitably due on the bond might be but $50. It was the purpose of the above provision to meet just such cases, and to prevent the court from taking jurisdiction on account of merely colorable allegations to give jurisdiction unwarranted by the facts. Of course, if there appears to be an actual controversy involving more than $2,000, though the recovery may be reduced, by payments or otherwise, below that sum, the court would retain jurisdiction. But if there is no such controversy in the case the plaintiff cannot, by alleging damages in a sum greater than he knows, or has any reason to believe, he can recover, give the court jurisdiction. A suit is brought upon a promissory note for $5,000. The plaintiff sets out the note properly, and alleges that no part of it has been paid, and claims judgment for $5,000. The defendant sets up payment of the note. On the pleadings the sum in dispute is $5,000, and the court assumes jurisdiction. On the trial the plaintiff introduces in evidence the note, on which there are, in his own hand, and under his own signature, indorsements of payments which reduce the amount due to $1,500; and he claims judgment for that sum. Should not the court dismiss for want of jurisdiction? I think so. But, in substance, that case is like the one at bar, and cannot be distinguished on principle. But if the plaintiff introduces his note without any indorsement of payment, and the defendant introduces evidence of payment which is controverted by the plaintiff's testimony in rebuttal, showing a real controversy,

and the jury find payments which reduce the plaintiff's recovery to a sum less than $2,000, the court would still retain jurisdiction, for, though the recovery is less than $2,000, the sum in controversy is

more.

It is evident that the plaintiff in the case at bar knew when he brought his suit that he was entitled to recover but $1,590. That sum is all he claimed on the trial, and all his own evidence had any tendency to show he was entitled to recover. It would seem quite anomalous to hold, as matter of law, that the sum really in dispute is more than the plaintiff claimed on the trial, or attempted to prove. It has been repeatedly held by the United States supreme court that, for purposes of jurisdiction in action upon penal bonds, the true criterion of jurisdiction, so far as the amount in controversy is concerned, is not the penalty named in the bond, but the sum actually and justly due by reason of the breach of the condition. There would be little sense in any other rule. While, in form, the plaintiff takes a verdict and judgment for the amount of penalty, his actual recovery is confined to the sum equitably due on account of the breach. This was ruled first in U. S. v. McDowell, 4 Cranch, 316. In that case the penalty of the bond was $20,000. The amount due by reason of the breach was $328. This was held to be the sum in dispute, and as it was less than $2,000 the supreme court dismissed the case for want of jurisdiction. The same rule is affirmed in U. S. v. Hill, 123 U. S. 681, 8 Sup. Ct. 308. Here the penalty of the bond was also $20,000, but the sum equitably due by reason of the breach was but $517.07, which was held to be the amount in dispute, rather than the penal sum named in the bond, and the case was dismissed.

The case of Lozano v. Wehmer (decided in the eastern district of this state) 22 Fed. 755, holds the same rule, though not a case upon a penal bond. But I do not think that a material difference. The same rule that governs in other actions on a money demand governs in this. That rule, as laid down in the numerous cases decided by the supreme court, is this: That the question of jurisdiction is governed by the value of the actual matter in dispute, as shown by the whole record, and not by the damages claimed, or the prayer for judgment, alone. Lee v. Watson, 1 Wall. 337; Schacker v. Insurance Co., 93 U. S. 241; Gray v. Blanchard, 97 U. S. 564; Tinstman v. Bank, 100 U. S. 6; Banking Ass'n v. Insurance Ass'n, 102 U. S. 121; Hilton v. Dickinson, 108 U. S. 174, 2 Sup. Ct. 424; The Jessie Williamson, Jr., 108 U. S. 305, 2 Sup. Ct. 669; Jenness v. Bank, 110 U. S. 52, 3 Sup. Ct. 425; Webster v. Insurance Co., 110 U. S. 386, 4 Sup. Ct. 79; Bradstreet Co. v. Higgins, 112 U. S. 227, 5 Sup. Ct. 117; Bowman v. Railway Co., 115 U. S. 611, 6 Sup. Ct. 192. In Hilton v. Dickinson the court says:

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"It is undoubtedly true that, until it is in some way shown by the record that the sum demanded is not the matter in dispute, that sum will govern, in all questions of jurisdiction; but it is equally true that, when it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevail."

That, I think, is the rule in this court. There is no reason for a different rule in this court from that prevailing in the supreme court.

Much reliance has been placed by plaintiff's counsel upon the case of Postmaster General v. Cross, reported in 4 Wash. C. C. 326, Fed. Cas. No. 11,306, as an authority to show that the penalty of the bond is the amount in dispute, rather than the sum justly due. But that case, as I understand it, is not an authority for the plaintiff. It is in strict accord with the cases above referred to, decided in the United States supreme court. It was a case originating in the district court, and taken to the circuit court by writ of error. The sum in dispute, to give the circuit court jurisdiction, was $50. The action was by the postmaster general against a deputy postmaster and his surety on his official bond, in the penal sum of $1,000. There was a plea of non est factum and payment. There was no allegation in the declaration of any breach or damage for a less sum than the penalty of the bond. The district attorney for the government produced the account, as settled by the postmaster general, by which it appeared that the sum claimed as being really due by the principal in the bond was upwards of $400. There was, however, no verdict or finding fixing the sum actually due the government. There was, in place of that, a special verdict finding the bond to be the deed of the defendant, and a number of other facts tending to tax the plaintiff with neglect in not bringing suit on the bond while the principal was able to pay, and omission to give the sureties notice of the default of the principal. Defendants' counsel moved to dismiss the writ for want of jurisdiction, but the court held that, the declaration containing no breach showing that a smaller sum than the penalty of the bond named was claimed, and no verdict of the jury or finding as to the amount, the penalty of the bond must be taken as the amount in dispute. But the court say, if there had been a verdict for a less sum than $50, that would have been the matter in dispute, and the court could not have entertained the writ; and this is in strict accord with the other cases above cited. The circuit court did not undertake to overrule or qualify the case of U. S. v. McDowell, above cited, but refers to it approvingly. The case was reversed because there were no breaches assigned in the declaration or replication, and for other

reasons.

The case must be dismissed for want of jurisdiction in this court, the sum in dispute being less than $2,000.

BERTHA ZINC & MINERAL CO. v. CARICO et al.

(Circuit Court, W. D. Virginia. August 3, 1893.)

REMOVAL OF CAUSES-WHO MAY REMOVE.

A corporation, being sued for personal injuries, presented, after issue joined, a petition alleging that a certain other corporation was solely interested in the litigation, and asked that the latter might be made a defendant, exhibiting at the same time certain papers tending to show a transfer of defendant's assets to it. The petition was denied, whereupon the other corporation presented a petition and bond for removal, alleging that it was a defendant, that the controversy was wholly with it, and that it was a citizen of another state. Plaintiff objected to the filing of these papers, offering, however, to agree that the applicant might become a party to the

record if it would admit liability in case plaintiff showed a right to recover. This the applicant refused to do. The court then refused to allow the filing of the removal papers, and proceeded to trial. Held that, as the applicant never became a party to the record, it had no right of removal, and that an injunction obtained by it from the federal court restraining the prosecution of the case in the state court, on the ground that a removal had been effected by force of the statute (Act 1887-88, § 3), was improvidently awarded.

This was a suit by the Bertha Zinc & Mineral Company to enjoin Elbert Carico and others from prosecuting an action at law in the circuit court of Wythe county, Va.

This cause was submitted on the petition and motion of the complainant to enter an order perpetuating injunction orders awarded by Hon. Hugh L. Bond, on the 14th day of March, 1892, and on the 21st day of April, 1892, and, on the motion of certain of the defendants, to dissolve said injunctions. The cause shows the following state of facts: In the month of May, 1890, Elbert Carico, a citizen of Virginia, instituted in the circuit court of Wythe county, Va., an action at law against the Bertha Zinc Company, a corporation under the laws of Virginia, claiming damages for $20,000 for injuries done to the plaintiff in the month of November, 1889, while he was in the employment of the defendant, which was a mining corporation. At the September term, 1890, of the circuit court of Wythe, the defendant appeared, and demurred to the declaration, and, the demurrer being overruled, it pleaded not guilty, to which the plaintiff replied generally, and issue was joined on the plea, and the case continued. At the March term, 1891, the case was continued generally. At the September term, 1891, it was continued on the motion of the defendant. At the March term, 1892, the defendant, the Bertha Zinc Company, presented a petition to the court, alleging that it had no interest in the subject-matter of the suit, that there was no liability on it on account of the matter of complainant set up in the declaration, but that a third party, the Bertha Zine & Mineral Company, was solely interested in the defense in the action, and liable to pay any recovery that might be had by reason of the injury complained of, and asking that the said Bertha Zinc & Mineral Company be required, by notice to be served upon it, to appear and maintain the defense of the case. The defendant filed as exhibits with its petition-First, a copy of an agreement entered into the 1st day of February, 1887, between George W. Palmer, of Saltville, Va., party of the first part, who is stated to be the owner or in control of all of the capital stock of the Bertha Zinc Company, and John H. Inman and others, as trustees, parties of the second part, the purpose of this agreement being to form what it terms the "Mineral Trust;" second, a deed made the 20th day of February, 1892, between the Bertha Zinc Company, party of the first part, and the Bertha Zine & Mineral Company, a corporation existing under the laws of the state of New Jersey, party of the second part, conveying to the latter company several tracts of land, therein described, together with personal property, etc. The plaintiff objected to this petition being filed, and the court sustained the objection. Thereupon the defendant, the Bertha Zinc Company, asked leave to file the following petition: "In the Circuit Court of Wythe County, State of Virginia. "Elbert Carico, Plaintiff, vs. The Bertha Zinc and Mineral Co., Deft. "Petition for the Removal of this Cause to the Circuit Court of the United States for the West. District of Virginia.

"To the Honorable Samuel W. Williams, Judge of the Circuit Court of Wythe County, State of Virginia: Your petitioner respectfully shows that it is a defendant in the above-entitled suit, and that it is a nonresident of the state in which said suit was brought, to wit, the state of Virginia; and that the matter and amount in dispute in the said suit exceed, exclusive of interest and cost, the sum or value of two thousand dollars. That the said suit is of a civil nature, namely, an action of trespass on the case for an injury complained of, in which action the plaintiff claims damages to the amount of twenty thousand dollars. That the controversy is wholly between citizens of different

states, to wit, between your said petitioner, who avers that it was at the time of being made a party to this suit, and still is, a citizen of the state of New Jersey, and the said plaintiff, who, as your petitioner avows, was then, and still is, a citizen of the state of Virginia. And your petitioner offers herewith a bond, with good and sufficient surety, for his entering in said circuit court of the United States, on the first day of its next session, a copy of the record of this suit, and for paying all costs that may be awarded by said circuit court, if said court shall hold that this suit was wrongfully or improperly removed thereto. And your petitioner prays this honorable court to proceed no further herein, except to make an order for the removal of this cause to said circuit court, and to accept said surety and bond, and to cause the record herein to be removed to the said circuit court of the United States in and for the western district of Virginia, and it will ever pray. "Bertha Zinc and Mineral Company, "By George M. Holstein, "Attorney in Fact."

The court entered the following order: "To the filing of which said petition of removal and bond by the Bertha Zinc and Mineral Company the plaintiff by his counsel objected, and the plaintiff by counsel thereupon announced that if the said Bertha Zinc and Mineral Company would admit on the record that in the event the plaintiff showed himself entitled to recover in this case, that in that event the said Bertha Zinc and Mineral Company would be liable therefor; then, in that event, the plaintiff would not object to the said Bertha Zinc and Mineral Company's entering itself a party defendant; and thereupon the said Bertha Zinc and Mineral Company by counsel declined to make any such admission; then, on objection by the plaintiff, the court refused to permit said petition of removal and bond to be filed; to which ruling of the court the defendant, the Bertha Zinc Company, excepts, and to save the benefit of said objection it tenders this, its bill of exception No. 2, which it prays may be signed, sealed, and made a part of the record, which is accordingly so done. Samuel W. Williams. [Seal.]" The court then impaneled a jury and proceeded with the trial of the case. Pending its trial, the Bertha Zine & Mineral Company, the complainant in this suit, applied to the circuit judge of this court for a writ of injunction to restrain the plaintiff, Carico, his agents and attorneys, from pressing, prosecuting, or proceeding in said action at law in the circuit court of Wythe. In its bill the complainant alleges: "That there has been removed, under and by virtue of the statutes of the United States providing for such removal, from the circuit court of Wythe county, Virginia, to this court, upon the petition of your orator, who is the real and substantial defendant, the Bertha Zine Company, of Virginia, being a nominal defendant therein." The circuit judge awarded the writ of injunction as prayed for, and on the 16th of March, 1892, during the progress of the trial in the circuit court of Wythe, the writ was served on the plaintiff, Carico, and his attorneys. The record shows the following: "And the said Bertha Zinc and Mineral Company asked leave to file an attested copy of said writ, witli the return thereon, to which motion to file the same plaintiff by his said attorney objected; and the court having asked the counsel whether this paper was filed for or by the Bertha Zinc Co., the defendant of record, or by and for the Bertha Zine and Mineral Co., to which counsel replied that they appeared on behalf of the Bertha Zine and Mineral Co., and not on behalf of the defendant, the Bertha Zinc Co., the court then sustained said objection, and refused to allow the said writ of injunction, with the return thereon, to be filed." The state court proceeded with the trial; a verdict was rendered for the plaintiff, judgment entered thereon. and execution issued. The complainant then filed in this cause a petition and supplemental bill, alleging that the sheriff of Wythe county was proceeding to levy said execution on the complainant's property, and praying for a writ of injunction as a supplement to the original writ of injunction, perpetually enjoining and restraining the said Elbert Carico and his said attorneys, and the said sheriff and his deputies, from all further proceedings under the judgment of the said circuit court of Wythe county in the name of Carico, as plaintiff, against the Bertha Zine Company, as defendant; that the levy and sale of complainant's property in execution of said judgment be likewise perpetual

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