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the day of payment, named in the bond, had not yet arrived, but by its terms it became due on the nonpayment of a coupon for interest; it being said by the court, that "the coupons cannot be considered as interest, for the purpose of maturing the debt, and as separate distinct obligations for the purpose of giving this court jurisdiction." Interest, which has accrued upon bonds and coupons after their maturity, cannot be considered. Where the relief sought did not include interest as such, together with a principal to which it was incidental; but a calculation of interest was used as an instrumentality in determining the amount of damages caused by a breach of warranty, or by fraudulent misrepresentations as to the value of stock and for the conversion of a written obligation; and where interest was claimed as damages, although not provided for in the contract; it was held: that such interest was a part of the jurisdictional amount. Where the bill claimed payment of a sum as the amount of a debt for an advance by a building and loan association; it was held, that the court could not arbitrarily assume that this was usurious interest cloaked with such name.10 In a suit to foreclose a mortgage, insurance premiums paid by the mortgagee, when claimed in the bill, are considered to be a part of the jurisdictional amount.11

§ 20. Consideration of costs in estimating the value of the matter in dispute. Notarial fees for the presentment and protest of a note in suit, although paid before the action was brought, were considered to be costs, not damages, and excluded

U. S. 269, 16 Sup. Ct. 967, 41 L. ed. 155.

4 Home and Foreign Inv. & Agency Co. v. Ray, 69 Fed. 657.

5 Greene County V. Kortrecht, C. C. A., 81 Fed. 241.

6 Brown v. Webster, 156 U. S. 328, 39 L. ed. 440. See Central Commercial Co. v. Jones-Dusenbury Co., C. C. A., 251 Fed. 13.

7 Chesbrough v. Woodworth, C. C. A., 251 Fed. 881.

8 Intermela v. Perkins, C. C. A., 205 Fed. 603.

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Spradlin, C. C. A., 170 Fed. 322; Central Commercial Co. v. JonesDusenbury Co., C. C. A., 237 Fed. 13. Contra, Voorhees v. Aetna Life Ins. Co., 250 Fed. 484; A. H. Marshall Co., Inc. v. Buick Motor Co., 251 Fed. 685.

10 Bldg. & L. Ass'n v. Price, 169 U. S. 45, 42 L. ed. 655, 18 S. Ct. 251; Turner v. Southern H. Bldg. & L. Ass'n, C. C. A., 101 Fed. 308; Building & Loan Ass'n of Dakota v. Cunningham (Texas), 47 S. W.

714.

11 Coolidge v. Ray, 75 Fed. 39.

from the computation of the jurisdictional amount. It has been held that where a statute authorizes the inclusion of an attorney's fee in the judgment, the same is part of the costs and is not included in the jurisdictional amount; 2 but the case is otherwise where the fee is awarded by stipulation and not by statute. Where a suit was brought to enjoin a public officer from issuing certain certificates without the payment of costs. and penalties which had accrued before the purchase, such costs were included in computing the jurisdictional amount.*

§ 21. Consideration of counterclaims in estimating the value of the matter in dispute. Whether the amount of a counterclaim, pleaded by the defendant, should be added to that of the plaintiff's claim, to determine the jurisdictional amount, has been the subject of conflicting adjudications. It has been held that the question is so doubtful that a motion to remand the cause in such a case should be granted.

§ 20. 1 Baker v. Howell, 44 Fed. 113. Contra, Dallyn v. Brady, 205 Fed. 430.

2 Peters v. Queen Ins. Co. of America, 182 Fed. 113.

3 Rogers v. Riley, 85 Fed. 471; Springstead v. Crawfordsville State Bank, 231 U. S. 541; LeRoy v. Hartwick, 229 Fed. 857. See Lee Line Steamers v. Robinson, C. C. A., 232 Fed. 417, 418.

4 Glen Ins. Co. v. Romero, County Treasurer, C. C. A., 254 Fed. 233.

§ 21. 1 Held, that it should be: in Stinson v. Dousman, 20 How. (U. S.) 461, 464, 467, 15 L. ed. 966, 968, 969 (appellate jurisdiction in equity); Lovell v. Cragin, 136 U. S. 130, 34 L. ed. 372 (appellate jurisdiction in equity); Kirby v. Am. Soda Fountain Co., 194 U. S. 141, 48 L. ed. 911, 24 Sup. Ct. 619 (jurisdiction of Circuit Court where cross-bill was filed); Clarkson V. Manson, 4 Fed. 257 (18 Blatchf. 443); Carson & R. L. Co. v. Holtzclaw, 39 Fed. 578; Wolcott v. Watson, 46 Fed. 529; Wolcott V.

Where the suit was one

Sprague, 55 Fed. 545; Lee v. Continental Ins. Co., 74 Fed. 424; Price & Hart v. T. J. Ellis & Co., 129 Fed. 482; American Sheet & Tin Plate Co. v. Winzeler, 227 Fed. 321; Central Commercial Co. v. JonesDusenbury Co., 251 Fed. 13; Clarkson v. Manson (N. Y.), 60 How. Pr. 45; reversing 59 How. Pr. 480. See Champion v. Grand Rapids, etc., Ry. Co., 145 Mich. 676, 108 N. W. 1078. Contra, Falls W. Mfg. Co. v. Broderick, 6 Fed. 654; La Montague v. T. W. Harvey Lumber Co., 44 Fed. 645; Bennett v. Devine, 45 Fed. 705; Industrial & Mining Guaranty Co. v. Electrical Supply Co., 58 Fed. 732, 7 C. C. A. 471, 16 U. S. App. 196 (cross-bill); MeKown v. Kansas & T. Coal Co., 105 Fed. 657. Cf. West v. Aurora City, 6 Wall. 139, 18 L. ed. 819; MeGinity v. White, 3 Dillon, 350; s. c., Fed. Cas. No. 8,802; Sturgeon River Boom Co. v. W. H. Sawyer Lumber Co., 89 Fed. 113.

2 Crane Co. v. Guanica Centrale (S. D. N. Y.) 132 Fed. 713.

appealed from a justice to the State Circuit Court, and defendant filed there a plea of set-off, claiming $3,000 against plaintiff, but under the statute of Tennessee he could recover no more than $500 in such court; it was held, that the latter sum was the matter in dispute, and the Federal court could have no jurisdiction by removal under the act of 1875.3 Where the counterclaim belongs to a class which by the State practice is barred unless pleaded in the suit; it must be added to the sum demanded by the plaintiff when determining the jurisdictional amount.4 It has been said that a defendant who pleads a counter-claim in a court of the United States is estopped from denying jurisdiction because of the insufficiency of the amount in dispute.5 An adjudication sustaining a set-off, counterclaim, or partial defense, so as to reduce the recovery below the jurisdictional amount, something still being allowed the plaintiff, is no reason for a dismissal or remand; provided that it does not appear that the original claim was exaggerated in bad faith. The filing of a crossbill, by one defendant against another, does not deprive him of the right of removal. It has been held: that the pleading in a State court, by the original defendant, of a counterclaim, or demand in reconvention, which exceeds the jurisdictional amount, does not put the original plaintiff in the position of a defendant so that he can remove the case.8

§ 22. Effect of admissions by the defendant upon the value of the matter in dispute. An admission or disclaimer, in the defendant's answer, which makes the subsequent matter in dis

3 New York I. & P. Co. v. Milburn Gin & Machine Co., 35 Fed. 225. Cf. Bennett v. Forrest, 69 Fed. 421.

4 Lee v. Continental I. & S. Co., 74 Fed. 424.

50. J. Lewis Mercantile Co. v. Klepner, C. C. A., 176 Fed. 343.

6 Lozano V. Wehmer, 22 Fed. 755; Peeler v. Lathrop, 48 Fed. 780, 1 C. C. A. 93, 2 U. S. App. 40; Wheeler Bliss Mfg. Co. v. Pickham, 69 Fed. 419; Stillwell-Bierce & Smith-Vaile Co. v. Williamston Oil & Fertilizer Co., 80 Fed. 68; Wash

ington County v. Williams, 111 Fed. 801, 49 C. C. A. 621.

7 Jackson & S. Co. v. Pearson, 60 Fed. 113, 123. Contra Bennett v. Devine, 45 Fed. 705 (counterclaim).

8 Waco Hardware Co. v. Michigan Stove Co., C. C. A., 91 Fed. 289; McKown v. Kansas & T. Coal Co., 105 Fed. 657; Smithers V. Smith (Texas), 80 S. W. 646; re hearing granted 81 S. W. 283. Contra, Price & Hart v. T. J. Ellis & Co., 129 Fed. 482.

pute less than the jurisdictional amount, will not divest the Federal court of jurisdiction of a suit begun there by the plaintiff; but where the plaintiff sued to recover the possession of a large tract of land, and the defendant, in a plea of abatement, denied that he was in possession of more than a small part of the same, and alleged that the value thereof was less than the jurisdictional amount; the court intimated without deciding that the jurisdiction might be thereby defeated.2 Whether such an admission or disclaimer will defeat the right of removal has not yet been authoritatively decided. Where the defendant, before. a removal was attempted, admitted the plaintiff's claim, but disputed the validity of an attachment in the case, and made no formal claim for damages; it was held, that sufficient did not appear to show that the matter in dispute exceeded the jurisdictional amount, although the property attached was more than such sum.4

§ 23. Effect of a defense apparent in the plaintiff's pleading upon the value of the matter in dispute. The fact that the plaintiff's pleading shows a sufficient defense to part of his claim to reduce it below the jurisdictional amount, does not divest the court of jurisdiction; 1 unless it is apparent that such part of the

§ 22. 1 Re Metropolitan Railway Receivership, 208 U. S. 90, 52 L. ed. 403, in which the author was counsel; Fuller v. Metropolitan Life Ins. Co., 37 Fed. 163; StillwellBierce & Smith-Vaile Co. v. Williamston Oil & Fertilizer Co., 80 Fed. 68.

2 Jones v. Rowley, 73 Fed. 286. 3 A decision of a State court seems to hold that it will defeat the right of removal. Thompson V. Kendrick's Lessee, 6 Tenn. (5 Hayw.) 113. But see supra, § 6. See Cooper v. Preston, 105 Fed. 403.

4 Keith v. Levi, 2 Fed. 743 (1 McCrary, 343).

$ 23. 1 Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 500, 13 Sup. Ct. Rep. 416, 37 L. ed. 255, following Gaines v. Fuentes, 92 U.

S. 10, 23 L. ed. 524; Upton v. MeLaughlin, 105 U. S. 640, 26 L. ed. 1197, and distinguishing Bowman v. Chicago & N. W. Ry. Co., 115 U. S. 611, 6 Sup. Ct. 192, 29 L. ed. 502; Johnston v. Straus, 26 Fed. 57; Hardin v. Cass County, 42 Fed. 652 (statute of limitations); Industrial & Min. G'y. Co. v. Electrical Supply Co., C. C. A., 58 Fed. 732; Bank of Arapahoe v. David Bradley & Co., C. C. A., 72 Fed. 867; Interstate Building & Loan Ass'n v. Edgefield Hotel Co., 109 Fed. 692; Waterfield v. Rice, 111 Fed. 625, 49 C. C. A. 504 (statute of limitations); Washington County v. Williams, C. C. A., 111 Fed. 801, 811; Board of Com'rs of Kearny County, Kan. v. Vandriss, C. C. A., 115 Fed. 866 (statute of limitations); Armstrong v. Walters,

claim was not made in good faith, but was manifestly fictitious; 2 or else that the court has no jurisdiction thereof.3

§ 24. Suits arising under the Constitution or laws of the United States. In general. A suit arises under the Constitution or law of the United States whenever its correct decision depends on the construction of either.1

219 Fed. 320; Mullin Lumber Co. v. Williamson & Brown Land & Lumber Co., C. C. A., 246 Fed. 232. 2 Edwards v. Bates County, 55 Fed. 436; reversed on another point, 163 U. S. 269, 273; Chicago Cheese Co. v. Fogg, 53 Fed. 72.

3 Coulter v. Fargo, 127 Fed. 912, 62 C. C. A. 144.

$ 24. 1 Cohens v. Virginia, 6 Wheat. 264, 379, 5 L. ed. 257, 285; Feibelman v. Packard, 109 U. S. 421, 27 L. ed. 984; Tennessee v. Davis, 100 U. S. 257, 264, 25 L. ed. 648, 650; Starin v. New York, 115 U. S. 248, 257, 29 L. ed. 388, 390; Southern Pac. R. Co. v. California, 118 U. S. 109, 112, 30 L. ed. 103, 104; Wiley v. Sinkler, 179 U. S. 58, 45 L. ed. 84; Swafford v. Templeton, 185 U. S. 487, 46 L. ed. 1005; New Orleans v. Seixas (Louisiana), 35 La. Ann. 36; McKee v. Brooks (Texas), 64 Tex. 255. Complainant brought suit in a State court to subject a judgment, obtained by the defendant against the United States in the Court of Claims, to the payment of a judgment he had against defendant, and for an injunction to restrain defendant from collecting, transferring, or otherwise disposing of said claim against the government, and for the appointment of a receiver to collect and hold the fund. The suit was removed to the United States court, and, upon motion to remand, held that it involved the construction of R. S. § 3477, which declares that all "transfers

*

*

and assignments made of any claim upon the United States * shall be absolutely null and void, unless they are freely made, and executed in the presence of at least two attesting witnesses,' &c., and the moWillard tion was therefore denied.

v. Mueller, 23 Fed. 209. A proceeding to exclude a bridge company from the use of a franchise to operate railroad tracks in a public street does not raise a Federal question, although such tracks lead to its bridge, built under Acts July 14, 1862, and Feb. 17, 1865, authorizing the construction of a railroad bridge over the Ohio river, and declaring that it shall be a lawful structure, and shall be recognized and known as a post route, "since those acts do not attempt to give the right to the use of the street as an approach. Kentucky v. Louisville Bridge Co., 42 Fed. 241. In an action against a railroad company to enforce a schedule of rates adopted by the railroad commission, the State court refused to remove the cause to the Federal court on the ground that under Act of Congress of July 25, 1866, its road in the State was made subject to national control only, and therefore was not subject to State legislation; the act referred to giv ing defendant's lessor aid in the construction of the road, which in all other matters was to be governed by the law of the State. State v. Southern Pac. Co., 23 Or. 424, 31 Pac. 960. No removable question

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