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This makes it unnecessary to consider the questions presented in the argument as to the competency of the proof offered.

Decree affirmed.

GAINES V. FUENTES ET AL.

1. In cases where the judicial power of the United States can be applied only

because they involve controversies between citizens of different States, it rests with Congress to determine at what time and upon what conditions the power may be invoked, — whether originally in the Federal court, or after suit brought in the State court; and, in the latter case, at what stage of the proceedings, – whether before issue or trial by removal to a Federal

court, or after judgment upon appeal or writ of error. 2. As the Constitution imposes no limitation upon the class of cases involving

controversies between citizens of different States, to which the judicial power of the United States may be extended, Congress may provide for bringing, at the option of either of the parties, all such controversies within

the jurisdiction of the Federal judiciary. 3. The act of Congress of March 2, 1867 (14 Stat. 558), in authorizing and re

quiring the removal to the Circuit Court of the United States of a suit pending or afterwards brought in any State court involving a controversy between a citizen of the State where the suit is brought and a citizen of another State, thereby invests the Circuit Court with jurisdiction to pass upon and determine the controversy when the removal is made, though

that court could not have taken original cognizance of the case. 4. A suit to annul a will as a muniment of title, and to restrain the enforcement

of a decree admitting it to probate, is, in essential particulars, a suit in equity; and if by the law obtaining in a State, customary or statutory, such a suit can be maintained in one of its courts, whatever designation that court may bear, it may be maintained by original process in the Circuit Court of the United States, if the parties are citizens of different States.

ERROR to the Supreme Court of the State of Louisiana.

This is an action in form to annul an alleged will of Daniel Clark, the father of the plaintiff in error, dated on the 13th of July, 1813, and to recall the decree of the court by which it was probated. It was brought in the Second District Court for the Parish of Orleans, which, under the laws of Louisiana, is invested with jurisdiction over the estates of deceased persons, and of appointments necessary in the course of their administration.

The petition sets forth, that on the 18th of January, 1855, the plaintiff in error applied to that court for the probate of the alleged will; and that, by decree of the Supreme Court of

the State, the alleged will was recognized as the last will and testament of the said Daniel Clark, and was ordered to be recorded and executed as such; that this decree of probate was obtained ex parte, and by its terms authorized any person at any time, who might desire to do so, to contest the will and its probate in a direct action, or as a means of defence by way of answer or exception, whenever the will should be set up as a muniment of title; that the plaintiff in error subsequently commenced several suits against the petitioners in the Circuit Court of the United States to recover sundry tracts of land and properties of great value, situated in the parish of Orleans and elsewhere, in which they are interested, setting up the alleged will as probated as a muniment of title, and claiming under the same as instituted heir of the testator; and that the petitioners are unable to contest the validity of the alleged will so long as the decree of probate remains unrecalled. The petitioners then proceed to set forth the grounds upon which they ask for a revocation of the will and the recalling of the decree of probate; these being substantially the falsity and insufficiency of the testimony upon which the will was admitted to probate, and the status of the plaintiff in error, incapacitating her to inherit or take by last will from the decedent.

A citation having been issued upon the petition, and served upon the plaintiff in error, she applied in proper form, with a tender of the necessary bond, for removal of the cause to the Circuit Court of the United States for the District of Louisiana, under the twelfth section of the Judiciary Act of 1789, on the ground that she was a citizen of New York, and the petitioners were citizens of Louisiana. The court denied the application, for the alleged reason, that, as she had made herself a party to the proceedings in the court relative to the settlement of Clark's succession by appearing for the probate of the will, she could not now avoid the jurisdiction when the attempt was made to set aside and annul the order of probate which she had obtained. The court, however, went on to say, in its opinion, that the Federal court could not take jurisdiction of a controversy having for its object the annulment of a decree probating a will.

The plaintiff in error then applied for a removal of the action

under the act of March 2, 1867, on the ground, that, from prejudice and local influence, she would not be able to obtain justice in the State court, accompanying the application with the affidavit and bond required by the statute. This application was also denied, the court resting its decision on the alleged ground that the Federal tribunal could not take jurisdiction of the subject matter of the controversy.

Other parties having intervened, the applications were renewed, and again denied. An answer was then filed by the plaintiff in error, denying generally the allegations of the petition except as to the probate of the will, and interposing a plea of prescription. Subsequently a further plea was filed, to the effect that the several matters alleged as to the status of the plaintiff in error had been the subject of judicial inquiry in the Federal courts, and been there adjudged in her favor. Upon the hearing a decree was entered, annulling the will, and revoking its probate. The Supreme Court of the State having affirmed this decree, this writ of error was sued out.

The act of March 2, 1867 (14 Stat. 558), is as follows:

“That where a suit is now pending, or may hereafter be brought, in any State court in which there is controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds the sum of $500 exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, if he will make and file in such State court an affidavit stating that he has reason to and does believe that from prejudice or local influence he will not be able to obtain justice in such State court, may, at any time before final hearing or trial of the suit, file a petition in such State court for the removal of the suit into the next Circuit Court of the United States to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of all process, pleadings, depositions, testimony, and other proceedings in said suit, and doing such other appropriate acts as, by the act to which this act is amendatory, are required to be done upon the removal of a suit into the United States Court: and it shall be thereupon the duty of the State court to accept the surety, and proceed no further in the suit; and, the said copies being entered as aforesaid in such court of the United States, the suit shall there proceed in the same manner as if it had been brought there by

original process; and all the provisions of the act to which this act is amendatory, respecting any bail, attachment, injunction, or other restraining process, and respecting any bond of indemnity or other obligation given upon the issuing or granting of any attachment, injunction, or other restraining process, shall apply with like force and effect in all respects to similar matters, process, or things in the suits for the removal of which this act provides.”

Mr. Jeremiah S. Black and Mr. George W. Paschal for the plaintiff in error.

Two objections are made to the right of the plaintiff in error to remove this suit from the Second District Court of the Parish of Orleans to the Circuit Court of the United States. (1.) That said District Court has exclusive original jurisdiction of the subject-matter in controversy. (2.) That the Circuit Court of the United States has no original jurisdiction of a suit of this description; and it could, therefore, not be removed thereto.

The first objection is grounded upon a mistaken assumption. It is settled by repeated adjudications in Louisiana that such a suit might be brought in her courts of ordinary jurisdiction. Reals v. McKnight, 5 Mart. n. 8. 9; Cull v. Phillips, 6 id. 304; Palmer v. Palmer, 1 L. R. 100; Casanova v. Acosta, id. 183; Sharp v. Knox, 2 id. 23, 25, 26; Kemp v. Kemp, 11 id. 22; O'Donogan v. Knox, id. 384; Trahen's Heirs v. Arden': Heirs, id. 393; Clark v. Christine, 12 id. 396. But, were it otherwise, State legislation could not limit the jurisdiction and remedies conferred upon the Federal tribunals by the constitution and statutes of the United States. Cowles v. Mercer County, 7 Wall. 118; Payne v. Hook, id. 425; Railway Company v. Whitton, 13 id. 270.

The answer to the second objection is as obvious as it is conclusive. This proceeding, by whatever name known in Louisiana, is, in its prominent characteristics, a suit in equity; and the relief thereby sought falls within a recognized head of equity jurisdiction. It might, therefore, have been brought in the Circuit Court; but, however this may be, the right to remove it there does not depend upon the question, whether its subject-matter is within the original jurisdiction of that court. No such condition or qualification is imposed by the act of 1872. Any suit

in a State court, in which there is a controversy between a citizen of the State where it is brought and a citizen of another State, if the matter in dispute exceeds the sum of $500, may be removed whenever the prescribed requirements as to the affidavit, petition, and bond, are fulfilled. This suit, therefore, was rightfully subject to removal under existing laws.

Mr. Thomas J. Durant and Mr. James McConnell, contra.

The second section of the third article of the United States Constitution declares that “the judicial power shall extend to .. controversies between ... citizens of different States."

The word “controversies" is here evidently used in the sense of “suits;" but does this mean all controversies?

If not, what are the exceptions ?

To give jurisdiction, the Constitution and the acts of Congress which apportion the judicial power to the several courts of the United States must concur.

The eleventh section of the Judiciary Act of 28th September, 1789 (1 Stat. 78), says,

" That the circuit courts 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, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of a State where the suit is brought and a citizen of another State.”

No suit can be removed to the national courts which might not by the Constitution of the United States have been originally commenced in one of these courts. Conkling's Treatise, 177; Smith v. Rines, 2 Sumn. C. C. 345; Beardsley v. Torrey, 4 Wash. C. C. 288. Congress never intended to authorize the defendant to remove any suit or proceeding before a State court, unless the Circuit Court of the United States had jurisdiction of the subject matter of such suit, and had the power to do substantial justice between the parties. Rogers v. Rogers, 1 Paige, 183.

In order, therefore, that a suit may be transferred from a State to a National court, it must be of a civil nature, either at common law or in equity, between a citizen of the State where

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