All the evils (and they are very serious) which congress intended to prevent by the inhibition of suits by assignees in the cases specified, are made not only possible, but easy, under the removal act, if it is to receive the literal construction contended for by plaintiff's counsel. It is impossible to imagine a case in which suit in this court, by an assignee, is prohibited by the first section of the act of March 3, 1875, and in which the same suit may not be indirectly brought here under the second section of the same act, if the two sections are not construed together, or if it be held that a non-resident assignee may, in all cases of suits founded on contract, remove the cause on the ground of his citizenship. By this construction of the act of 1875 we would point out the mode whereby one citizen of Nebraska, holding a claim against another citizen of that state for more than $500, may assign his claim to a citizen of a neighboring state, who can bring his suit thereon into this court provided only he comes through a state court. When we consider that the federal courts are few in number and widely separated from each other; that many citizens reside at places far distant from them; that their dockets are overcrowded with cases, and that litigation in them is tedious and sometimes ruinously expensive, we perceive at once the wisdom of those provisions of the statute which have stood from 1789 until the present, which were intended to confine our jurisdiction, in cases where it depends upon the citizenship of the parties, to bona fide controversies between citizens of different states. And in order to secure this end it is necessary to prohibit the assignment of causes of action to non-residents, for the purpose of bringing suit either directly or indirectly in the federal courts. I am, therefore, of the opinion that the first and second sections of the act of March 3, 1875, should be construed together as in pari materia, and, being so construed, the right of removal should not be allowed in a case where the plaintiff is an assignee, unless his assignor might have sued in this court.

It is insisted, in the second place, that the case involves a question arising under the laws of the United States. It is

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so stated in the petition for removal, but we are not bound by that statement. We are at liberty to look into the record and determine from that what the controversy is, and whether it involves a federal question. The plaintiff here sues to recover taxes erroneously levied and collected by the authorities of Douglas county. The statute of the state gives the right of action. No question under any act of congress can arise. The fact that there is a decree of this court establishing the invalidity of the taxes in question does not change the character of the suit. That decree is simply an item of evidence in the case, and its conclusiveness, its construction, or its effect does not require the construction of any law of the United States. We do not decide upon the question whether this case was "brought" in the district court of Douglas county within the meaning of the first section of the act of 1875. It was instituted as a claim against the county, presented to and prosecuted to a decision before the board of county commissioners of that county, from whose decision rejecting the claim an appeal was prosecuted to the district court. These facts present a question of some doubt as to whether the suit was "brought"-that is, instituted, commenced-in the district court; and if it was not, it was not removable. But the conclusions reached upon the other points in the case render a decision of this question unnecessary.

The motion to remand is sustained.

KREAGER V. JUDD and others.*

(Circuit Court, 8. D. Ohio, E. D. December 13, 1880.)

1. COSTS-WHEN RECOVERABLE-CAUSE REMOVED FROM STATE TO CIRCUIT COURT-SECTION 968, U. S. REV. ST.-In an action at law originally brought in a state court, and removed to the circuit court by the defendant, the amount ultimately recovered by the plaintiff was, exclusive of costs, less than $500, ($312.46.) Such a recovery would have entitled him to costs in the state court. Held, that the case is not within section 968, U. S. Rev. St., and that the plaintiff is entitled to costs; although, if the action had been commenced originally in the circuit court, no costs could have been recovered. Field v. Schell, 4 Blatchf. 435.

Ellis v. Jarvis, 3 Mason, 457.

2. SAME EFFECT OF COUNTER CLAIM.-As to the effect upon the question of costs of the reduction of the recovery to below $500, by the allowance of a counter claim in an action originally brought in the circuit court, quære.

Motion to apportion costs.

A. W. Train and F. Southward, for plaintiff.

Bargar & Vorheis, for defendant.

SWING, D. J. In this case a verdict was rendered by the jury for the plaintiff for $312.46. Counsel for the defendant now file a motion asking that each party be required to pay his own costs. Section 968 of the Revised Statutes provides:

“When, in a circuit court, a plaintiff in an action at law originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of $500, exclusive of costs, in a case which cannot be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value; * he shall not be allowed, but, at the discretion of the court, may be adjudged to pay, costs." If this case had been originally brought in this court, there would be no doubt that the plaintiff would not be entitled to costs in the case. But the suit was not originally brought in this court; it was brought in the state court, and removed.

*Reported by Messrs. Florien Giauque and J. C. Harper, of the Cincinnati bar.

from the state court to this court. If the case had continued in the state court, the plaintiff's recovery would have carried costs, for under the statute of Ohio a plaintiff recovering in an action of this character would recover costs. The case was removed to this court, and it is very clear that the statute which I have read does not apply to this case, for it expressly provides, "in an action at law originally brought in this court;" and this action was not originally brought in this court.

This question is not, however, a new one. It has been before the courts before, and such has been the determination of the courts whenever they have had the question before them. Field v. Schell, 4 Blatchf. 435; Ellis v. Jarvis, 3 Mason, 457.

This case having been removed from the state court into this court by the defendant, and recovery had against him in this court for an amount which would have carried costs below, he would be adjudged to pay the costs in this court.

There is another consideration in this case: that is, there was a counter claim in it; and had the case been originally brought in this court, and it had appeared by the verdict of the jury that the plaintiff, upon his claim, would have been entitled to the recovery of more than $500, and also that by the verdict it was shown that the jury had found in favor of the defendant upon his counter claim, and that amount, being less than the plaintiff's claim, and deducted from the plaintiff's claim, reduced it to less than $500, the question might still remain whether the plaintiff would not be entitled to costs. But that is not necessary to be decided in this

case.

The judgment will therefore be entered upon the verdict, with costs.

UNITED STATES v. HAAS and another.

(District Court, S. D. New York. November, 1880.)

1. ARREST-MARSHAL'S FEES.

Where an execution ca. 8a. was served by the marshal in the county of New York, and the defendants held under arrest for some time, and the action was subsequently settled by a compromise, the defendants paying the plaintiff a smaller sum than that specified in the execution:

Held, that the marshal is entitled to poundage on the whole amount for which the execution issued.

That the new provisions contained in the New York code of civil procedure relating to sheriff's fees do not affect this question.

That the rate of poundage should be that allowed the sheriffs in the different counties throughout the state under 2 (N. Y.) Rev. St. 645, § 33, and not the special rates allowed the sheriff in the county of New York.

S. L. Woodford, U. S. Dist. Att'y, and C. P. L. Butler, Asst. Dist. Att'y. for the United States.

H. W. Bookstaver, for the Marshal.

CHOATE, D. J. In this case, after return of an execution against the property of the defendants unsatisfied, an execution against their persons was issued and served by the' marshal, who held them under arrest for some time, when they gave bonds for the limits. The amount of the execution was $48,605.47. Subsequently a compromise of $15,000 was accepted by the secretary of the treasury, and the plaintiff's costs are payable out of this sum. The marshal's costs for serving the execution have been taxed at $875.30, being fee for serving, 69 cents; poundage, 3 per cent. on $250, and 2 per cent. on $48,355.47. The plaintiff has appealed from the clerk's taxation.

The question to be determined is whether the marshal is entitled to poundage on the sum collected or realized by the compromise, or on the whole amount for which the execution issued. By Rev. St. U. S. § 829, the marshal is entitled to the same fees and poundage for serving an execution as are or shall be allowed to sheriffs of the state for similar services. The question then is, what poundage is the sheriff entitled to?