moved by the defendant, whether the suit is brought by, or against, the trustee.4

§ 39. Suits arising out of litigation in the Federal courts. It has been held: that the following cases, arising out of litigation in the Federal courts arise under the Constitution and laws of the United States, and may be removed when the matter in dispute exceeds the jurisdictional amount: a suit where the plaintiff's pleading shows that he contests the validity of a writ, order, judgment, or decree of a Federal court; a suit for malicious prosecution, or false imprisonment, upon a charge of a violation of a law of the United States; 2 and a suit where there is a dispute as to how far a State statute, concerning liens upon land, applies to a judgment of a court of the United States.3 It has been held: that the purchaser at a Federal foreclosure sale, which had assumed as part of the price all liabilities incurred by the receivers, was not entitled to remove a suit to enforce such liability. It has been said: that the construction of orders and decrees of a Federal court, according to their true meaning, does not involve a Federal question.5 It has been held: that the following cases do not arise under the laws of the United States: a suit upon a judgment recovered in a court of the United States; a suit in which either party claims title under a sale

6

3 Corbitt v. President, etc., of Farmers' Bank of Delaware, 113 Fed. 417.

4 Bush v. Elliott, 202 U. S. 477, 50 L. ed. 1114.

$ 39. 1 Connor V. Scott, Fed. Cas. No. 3,119, 4 Dillon, 242, to enforce a vendor's lien, where it appeared that the defendant claimed the land through the deed of an assignee in bankruptcy, the validity of which plaintiff disputed, First Nat. Bank v. Society for Savings, 80 Fed. 581, 25 C. C. A. 466, for an injunction against a tax levy ordered by the mandamus of a Federal court. South Dakota Cent. Ry. Co. v. Continental & Commercial Trust & Savings Bank, C. C. A., 255 Fed. 941. See

Houser v. Clayton, Fed. Cas. No. 6,739 (3 Woods, 273); Johnson v. New Orleans Nat. Banking Ass'n (Louisiana), 33 La. Ann. 479.

2 Ma-ka-ta-wah-qua-twa v. Rebok, 111 Fed. 12.

3 Cooke v. Avery, 147 U. S. 375, 37 L. ed. 209; Sowles v. Witters, 46 Fed. 497.

4 Reed v. Northern Pac. Ry Co., 86 Fed. 817. But see Wabash Railroad Co. v. Adelbert College, 208 U. S. 38, 53, 52 L. ed. 379, 385; and infra, § 51.

5 United States v. Douglas, 113 N. C. 190, 18 S. E. 202.

6 Provident Savings Society V. Ford, 114 U. S. 635, 29 L. ed. 261: Metcalf v. Watertown, 128 U. S. 586, 32 L. ed. 543,

made under the order, judgment, or decree of a Federal court, when the validity and construction of that order, judgment or decree is not in question; a bill by a discharged bankrupt, to enjoin a levy under a judgment previous to his discharge, upon land which the court has set apart to him as exempt under the State homestead laws; 8 an action by an attorney for damages caused by his disbarment by a State court, because of language spoken in a court of the United States. It has been further held that a case does not arise under the laws of the United States simply because a Federal court has decided in another suit the questions of law which were involved; 10 and that an issue, whether full force and effect had been given to the judg ment of a State court, does not involve the construction of the Constitution of the United States.11 It was held that a suit arises under the laws of the United States, when brought against a private person for wrongfully causing a marshal to levy a Federal execution upon the plaintiff's property, which the defendant claimed to belong to the judgment debtor.12 The District Courts of the United States have also ancillary jurisdiction over many cases connected with litigation previously brought there. This subject is considered later.13

§ 40. Controversies between citizens of different States. In general. A controversy between citizens of different States is one in which every party upon one side is a citizen of a different State from every party upon the other. The citizenship of formal parties, with no real interest in the controversy, does not affect the jurisdiction.2 In certain cases, the joinder of improper

7 Carson v. Dunham, 121 U. S. 421, 30 L. ed. 992; Gay v. Lyons, Fed. Cas. No. 5,281, 3 Woods, 56. 8 King v. Neill, 26 Fed. 721. 9 Green v. Rogers, 56 Fed. 220; Green v. Elbert, 63 Fed. 308.

10 Leather Manufacturers' Nat. Bank v. Cooper, 120 U. S. 778, 30 L. ed. 816; affirming order Cooper v. Leather Manufacturers' Nat. Bank, 29 Fed. 161; Berger v. Dougles County Com'rs, 5 Fed. 23, 2 McCrary, 483.

11 Merritt v. Am. Steel Barge Co., C. C. A., 75 Fed. 813.

12 Hurst v. Cobb, 61 Fed. 1.
13 Infra, $51.

$ 40. 1 Blake v. MeKim, 103 U. S. 336, 26 L. ed. 563; Hastings v. Hoog, 234 Fed. 103.

2 Removal Cases, 100 U. S. 457, 25 L. ed. 593; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Harter v. Kernochan, 103 U. S. 562, 26 L. ed. 411; Maryland v. Baldwin, 112 I. S. 490, L. ed. 822; Wormley v. Wormley, 8 Wheat. 421, 5 L. ed. 651; Taylor v. Holmes, 14 Fed. 499; New Chester Water Co. v. Holly Mfg. Co., C. C. A., 53 Fed. 19, 26;

In

parties, plaintiff or defendant, will not prevent a removal. determining between whom the controversy exists, the court is not bound by the title of the case or the form of the proceedings; but should examine the record, ascertain the matter in dispute and arrange the parties on opposite sides of the same according to the facts, no matter what their technical place as plaintiff's or defendants may be. A controversy exists whenever there is a justiciable demand, although the defendant does not resist the relief sought; and, at least, in the absence of fraud, even if he has requested the plaintiff to institute the suit.5

There is no jurisdiction, because of difference of citizenship, when any one of the necessary, and not formal, parties is a citizen of the District of Columbia, or a citizen of a Territory; 7 even if other parties to the controversy, on the same side as such citizen of the district or Territory, are citizens of different States from that of the plaintiff; but formerly a resident of the District of Columbia might, in a proper case, maintain a crossbill in a suit where the jurisdiction was founded upon there. being a controversy between citizens of different States.

It has been said that a person who changes his permanent residence to a foreign country, although he still remains a citi

infra, § 118; see Chapter XXXII on Removal of Causes. But see Blackburn v. Portland G. M. Co., 175 U. S. 571, 44 L. ed. 276; Pittsburg, C. & St. L. Ry. Co. v. B. & O. R. Co., C. C. A., 61 Fed. 705. Infra, § 42.

3 See infra, §§ 539, 540.

4 Removal Cases, 100 U. S. 457, 468, 25 L. ed. 593, 597; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Carson v. Hyatt, 118 U. S. 279, 286, 30 L. ed. 167, 169; Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70; Anderson v. Bowers, 40 Fed. 708; Brown v. Murray Nelson & Co., 43 Fed. 614; Mangels v. Donau Br. Co., 53 Fed. 513; Cilley v. Patten, 62 Fed. 498; Board of Trustees, v. Blair, 70 Fed. 414;

infra, § 43. But see Reavis V. Reavis, 98 Fed. 145.

5 Re Metropolitan Railway Receivership, 208 U. S. 90, 52 L. ed. 403, in which the author was counsel. 6 Hepburn v. Ellzey, 2 Cranch, 445, 2 L. ed. 332; Westcott v. Fairfield, Pet. C. C. 45; Barney v. Baltimore, 1 Hughes, 118; Cameron v. Hodges, 127 U. S. 322, 32 L. ed 132; Hooe v. Jamieson, 166 U. S 395, 41 L. ed. 1049.

zen of the United States, ceases to be a citizen of a State who can be sued in a Federal Court, where the jurisdiction is founded upon a difference of citizenship; 10 but a better statement of the rule seems to be that she cannot then be sued there upon that ground, when served in the State of her former domicile. A change of citizenship after the jurisdiction has once attached will not divest it,11 even, it was held, in case of a change of citizenship made before an amended bill was filed.12 The subsequent consolidation of a foreign with a domestic corporation will not defeat the jurisdiction.13 When at the time a bill is filed the court has no jurisdiction, jurisdiction cannot subsequently be conferred by an amendment striking out a party plaintiff who was properly and necessarily made such at the commencement of the suit; 14 but in one case the court retained Jurisdiction by allowing an amendment which made one of the original plaintiffs a defendant.15 When an indispensable party is omitted at the beginning of the suit, his citizenship if subsequently joined as defendant may defeat the jurisdiction. 16 The same ruling was made, when after an additional defendant was joined, the plaintiff amended his pleadings so as to set forth a cause of action to which such new defendant was an indispensable party.17 When they are not indispensable parties, jurisdiction may be retained upon a discontinuance or dismissal as regards defendants who are citizens of the same State as

10 Hammerstein v. Lyne, 200 Fed. 165, 172. See infra, § 46.

11 Morgan's Heirs v. Morgan, 2 Wheat. 290, 4 L. ed. 242; Mollan v. Torrance, 9 Wheat. 537, 6 L. ed. 154; Clarke v. Mathewson, 12 Pet. 164, 9 L. ed. 1041; Anderson v. Watt, 138 U. S. 694, 34 L. ed. 1078; Tug River Coal & Salt Co. v. Brigel, C. C. A., 86 Fed. 818; Haracovie v. Standard Oil Co., 105 Fed. 785; Collins v. Ashland, 112 Fed. 175. But see Weaver v. Kelly, 92 Fed. 417; Mangels v. Donau B. Co., 53 Fed. 513.

12 Tug River C. & S. Co. v. Brigel, 86 Fed. 818.

13 Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., 174 U. S. 552, 43 L. ed. 1081, C. C. A., 75 Fed. 433, 22 C. C. A. 378; Chicago, I. & N. P. R. Co. v, Minnesota & N. W. R. Co., 29 Fed. 337.

14 Anderson v. Watt, 138 U. S. 694, 34 L. ed. 1078. But see Hicklin v. Marco, C. C. A., 56 Fed. 549; Whittle v. Artis, 55 Fed. 919. 15 Conolly v. Taylor, 2 Peters, 556, 7 L. ed. 518.

16 Patterson v. Delaware & Hudson Co., C. C. A., 251 Fed. 255.

17 Devost v. Twin State Gas & Elec. Co., C. C. A., 250 Fed. 349.

the plaintiff; after, 18 as well as before,19 they have appeared; and even, it was held, where they were restored a few days later upon their petition for intervention; 20 but the resignation after suit brought of a defendant trustee, 21 and the filing of a disclaimer by a defendant,22 who were citizens of the complainant's State, were held not to save the jurisdiction. Such a discontinuance did not save the jurisdiction in an action at law against two makers of a promissory note.23 Jurisdiction is not lost because a defendant ceases to resist the plaintiff's demand; 24 nor by the addition of new parties, whose citizenship would have prevented their original joinder in the suit, and who come in by amendment,25 or by intervention,2 even, it was held, when at the time he filed his bill plaintiff expected

18 Beebe v. Louisville, N. O. & T. R. Co., 39 Fed. 481, 484; Morse v. South, 80 Fed. R. 206, 207; Claiborne v. Waddel, 50 Fed. 368; Hicklin v. Marco, C. C. A., 56 Fed. 549; Horn v. Lockhart, 17 Wall. 570, 21 L. ed. 657; Bane v. Keefer, 66 Fed. 610; Mason v. Dullingham, 82 Fed. 689; Grove v. Grove, 93 Fed. 865; Sioux City T. R. & W. Co. v. Trust Co. of N. Am., C. C. A., 82 Fed. 124; Oxley Stave Co. v. Coopers' Union, 72 Fed. 695; s. c. as Hopkins v. Oxley Stave Co., C. C. A., 83 Fed. 912; Smith v. Consumers' C. O. Co., 86 Fed. 359; Tug. R. C. & S. Co. v. Brigel, C. C. A., 86 Fed. 818; Columbia Digger Co. v. Rector, 215 Fed. 618; see Chapter XXXII, on Removal of Causes.

19 A. R. Barnes & Co. et al. v. Berry et al., 156 Fed. 72.

20 Sioux City T. & W. Co. v. Trust Co. of N. Am., C. C. A., 82 Fed. 124; s. c. 173 U. S. 99, 43 L. ed. 628.

21 Ruohs V. Jarvis-Conklin Mt. Tr. Co., 84 Fed. 513.

22 Wetherby v. Swason, C. C. A., 62 Fed. 193. But see Frazer Lubricator Co. v. Frazer, 23 Fed. 305;

26

Wirgman v. Persons, 126 Fed. 449, 451.

23 Chase v. Lathrope, 254 Fed. 715. 24 Park v. N. Y., L. E. & W. R. Co., 70 Fed. 641.

25 Ober v. Gallagher, 93 U. S. 199, 206, 23 L. ed. 829, 831; Stewart v. Dunham, 115 U. S. 61, 64, 29 L. ed. 329, 330; Phelps v. Oakes, 117 U. S. 236, 29 L. ed. 888; Hardenbergh v. Ray, 151 U. S. 112, 38 L. ed. 93. But see Mangels v. Donau Br. Co., 53 Fed. 513; Weaver v. Kelly, 92 Fed. 417; Fraser v. Cole, C. C. A., 214 Fed. 556.

26 Osborne & Co. v. Barge, 30 Fed. 805; Belmont Nail Co. v. Col. I. & S. Co., 46 Fed. 336; Henderson v. Goode, 49 Fed. 887; United El. S. Co. v. La. El. Co., 68 Fed. 673; Society v. Shakers v. Watson, C. C. A., 68 Fed. 730; Park v. N. Y., L. E. & W. R. Co., 70 Fed. 641; Cole v. Philadelphia & E. Ry. Co., 140 Fed. 944; Monmouth Inv. Co. v. Means, C. C. A., 151 Fed. 159; infra, $ 258. Contra, Forest Oil Co. v. Crawford, C. C. A., 101 Fed. 849; Clauss v. Palmer Oil Co., C. C. A., 222 Fed. 870 where the new parties intervened as plaintiffs. See also