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 1875.8 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.* 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 deimand 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. Michi gan 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; rehearing 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. 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 MeCrary, 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, 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 V. 219 Fed. 320; Mullin Lumber Co. 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 motion was therefore denied. Willard 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 It has been said: that a suit cannot be removed, from a State court to a Federal court, simply because, in its progress, a construction of the Constitution or of a law of the United States may be necessary, unless it, in part at least, arises out of a controversy in regard to the operation and effect of some provision in such Constitution or law upon the facts involved.2 The mere fact that, in the progress of the trial of a case, it may become necessary to construe the Constitution or laws of the United States, does not give the Federal courts jurisdiction thereof; but the decision must depend on such construction.2a In order to remove a cause, on the ground that it arises under a statute of the United States, the record must affirmatively show, from the facts alleged, that some disputed construction of the statute will arise for decision. Where the contest is about the facts only, there can be no removal. A case removed to a Federal court, on the ground that the suit arose under the Constitution or laws of the United States, will be remanded where arises from the fact that plaintiff acquired title from the United States to the funds loaned defendant, and to recover which suit is brought. Houston & T. C. R. Co. v. State (Texas), 41 S. W. 157. The State of South Carolina filed a bill in one of its own courts, alleging that defendant corporation was chartered by the State to build and operate a railroad between the interior and the seaboard; that since it was built the Central Company, a Georgia corporation, and a competitor of defendant, had purchased enough of the stock and bonds of defendant to give it control of the corporation, and had diverted the business of defendant, and crushed competition; that the Central Company had no power to purchase stock in defendant corporation, and that the latter was disabled to fulfill the purposes for which it was chartered. It prayed that such holdings by the Central Company be declared ultra vires, and that defendant's charter be forfeited. The petition for removal alleged that the Central Company was an instrument of interstate commerce, and that for the purposes of such commerce, and under the interstate commerce clause of the Constitution and the laws passed in pursuance thereof, it had power to purchase defendant's stock, and control its operation. Held, that the determination of the controversy thus developed involved the construction of the Constitution and laws of the United States and so presented a Federal question. South Carolina v. Port Royal & A. R. Co., 56 Fed. 333. 2 Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; 38 St. at L. 583, Comp. St. § 4125b Bankers Trust Co. v. Tex. & Pac. Ry., 241 U. S. 295; Wise v. Nixon, 78 Fed. 203. 2a Wise v. Nixon, 78 Fed. 203. 3 Austin v. Gagan, 39 Fed. 626, 5 L.R.A. 476. the record fails to show: that there will arise some contested point of law depending upon the Constitution or laws of the United States, what the question is and how it will arise. It has been said: that a cause is not removable simply because an act of Congress must be construed or applied; but that there must be a dispute as to the construction of the act, and facts to show the dispute must appear in the record.5 A suit to determine the validity of the action of State authorities with reference to a tax imposed by the United States involves a Federal question. It has been held: that a cause involving the question whether an express company or its customer must furnish the stamp required by the war revenue act of 1898, to be affixed to a receipt given by the company is one arising under a law of the United States; 7 but that a suit between two companies to determine which of them is liable for the income tax upon dividends does not, although the collector is joined as a defendant, when no controversy is raised effecting the rights of the United States. It has been held that Federal questions are raised in suits brought by a State attorney general, to test the validity of a consolidation of railroad companies, which affect their rights under acts of Congress. It has been said that where the plaintiff pleads a breach of the rules and regulations made by a Department of the United States, the case does not arise under a law of the United States, unless a recovery of damages for a disregard of such regulations is expressly authorized by statute.10 Suits against directors of national banks for damages sustained by indiyiduals in consequence of violation of the National Banking Laws. Suits for malicious prosecution or false imprisonment upon a charge of the violation of a law of the United States,12 or where the illegality depends upon a right granted 4 McFadden v. Robinson, 22 Fed. 10, 10 Sawyer, 398. 5 Fitzgerald v. Missouri Pac. R. Co., 45 Fed. 812. 6 Dinsmore v. Southern Exp. Co., 92 Fed. 714. 7 Crawford v. Hubbell, 89 Fed. 1. See, however, Attorney General v. American Express Co. (Michigan), 77 N. W. 317. 8 Rensselaer & S. R. Co. v. Dela ware & Hudson Co., C. C. A., 257 Fed. 555. 9 Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482. 10 Beck v. Johnson, 169 Fed. 154, 163. 11 Chesbrough v. Woodworth, 244 U. S. 72. See infra § 28. 12 Ma-ka-ta-wah-qua-twa v. Rebok, 111 Fed. 12. |