held that it was to be included.58 The admission in the defendant's pleading of part of the plaintiff's claim will not divest the court of jurisdiction; " at least where there was a substantial dispute thereabout when the suit was commenced.60

62

59

The pleadings on the petition for removal must show that the value of the matter in dispute exceeds the jurisdictional amount. The court, may, however, where the bill or declaration is defective in that respect, retain jurisdiction and permit an amendment which shows the jurisdictional value of the matter in dispute. Where the averments of the bill were sufficient, but it appeared by uncontradicted affidavits that the value of the matter in dispute was less than $2,000, it was held that a preliminary injunction should be denied.63 If at any time in the progress of the case it appears that the allegation concerning the jurisdictional amount was not made in good faith and that the dispute is for less than $2,000, the court will immediately dismiss the case. It has been said that the bur

58 Lee v. Continental Ins. Co., 74 Co., 32 Fed. R. 863; Whalen v. GorFed. R. 424. don (C. C. A.), 95 Fed. R. 305; Johnston v. Trippe, 33 Fed. R. 530. See Citizens' Bank v. Cannon, 164 U. S. 319.

59 Fuller v. Met. Life Ins. Co., 37 Fed. R. 163. See Stillwell B. & S. V. Co. v. Williamston O. & F. Co., 80 Fed. R. 68.

63 U. S. Exp. Co. v. Poe, 61 Fed. R. 60 Jones v. Rowley, 73 Fed. R. 286; 475. But see Hat Sweat Mfg. Co. v. infra, § 293.

Porter, 46 Fed. R. 757.

61 Yellow A. M. & M. Co. v. Win- 64 Chicago Cheese Co. v. Fogg, 53 chell, 95 Fed. R. 213; Back v. Sierra Fed. R. 72; Simon v. House, 46 Fed. N. C. M. Co., 46 Fed. R. 673; Stras- R. 317; Holden v. Utah & M. Mach. burger v. Beecher, 44 Fed. R. 209; Har- Co., 82 Fed. R. 209; Horst v. Merkley, vey v. Raleigh & G. R. Co., 89 Fed. R. 59 Fed. R. 502; Maxwell v. A., T. & S. 115. An allegation that the "amount F. R. Co., 34 Fed. R. 286; Bedford in dispute" exceeds the jurisdic- Quarries Co. v. Welch, 100 Fed. R. tional sum is not insufficient because 513; Bank of Arapahoe v. David it uses the word "amount" instead Bradley Co. (C. C. A.), 72 Fed. R. 867. of "matter" in dispute. Blackburn Where, however, the plaintiff sued v. Portland G. M. Co., 175 U. S. 571. in good faith for a principal sum in The pleading or petition for removal excess of $2,000, and the defendant must show the value at the time the proved a set-off, the exact amount of suit was brought. Strasburger v. which plaintiff did not know when he Beecher, 44 Fed. R. 209. Where the commenced the suit, it was held that complaint was silent, the allegation the court might retain jurisdiction. in the answer was held to be con- Pickham v. Wheeler B. Mfg. Co. (C. clusive. W. U. Tel. Co. v. White, 102 C. A.), 77 Fed. R. 663; s. c., 69 Fed. Fed. R. 705. R. 419; Stillwell B. & S. V. Co. v. 62 Davis v. Kansas City, S. & M. R. Williamston O. & F. Co., 80 Fed.

den of proof that the matter in dispute is less than the jurisdictional amount, when the plaintiff's pleading alleges that fact, rests upon the defendant; should be set up by a plea in abatement; and is waived by an answer to the merits.65

§ 17. Suits arising under the Constitution or laws of the United States.- A suit arises under the Constitution or a law of the United States whenever its correct decision depends on the construction of either. "When a proposition has once been decided by the Supreme Court of the United States, it can no longer be said that in it there still remains a Federal question. More correctly it is said that there is no question, State or Federal." The Federal question in the case must be substantial and not merely colorable. When either party is a corporation chartered by Congress, the case is one arising under a law of the United States. Not, however, when the sole corporate party derives its charter from a Territorial statute. Suits to which national banks are parties are exempted from the operation of this rule by the Judiciary Act of 1887, except cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any

R. 68. See also Schunk v. Moline M. & S. Co., 147 U. S. 500; Kunkel v. Brown (C. C. A.), 99 Fed. R. 593; Jones v. McCormick H. M. Co. (C. C. A.), 82 Fed. R. 295; Hayward v. Nordburg Mfg. Co. (C. C. A.), 85 Fed. R. 4; Ung Lung Chung v. Holmes, 93 Fed. R. 323; Tennent-Stribiing Shoe Co. v. Roper, 94 Fed. R. 739; Scott v. Donald, 165 U. S. 58; Von Schroeder v. Brittan, 93 Fed. R. 9.

65 Butchers' & D. S. Y. Co. v. Louisville & N. R. Co. (C. C. A.), 67 Fed. R. 35. See Pine v. New York, 103 Fed. R. 337; $ 125, 293. But see Greene v. Tacoma, 53 Fed. R. 562.

In revising section 16 the writer has been aided by a valuable note by W. L. Clarke, Esq., published in 19 C. C. A. 75.

§17. 1 Cohens v. Virginia, 6 Wheat. 264, 379; Tennessee v. Davis, 100 U. S. 257, 264; Starin v. New York, 115 U.S.

248, 257; Southern Pac. R. Co. v. California, 118 U. S. 109, 112; Wiley v. Sinker. 179 U.S. 58. But see Kentucky v. Louisville Bridge Co., 42 Fed. R.241. 2 Brewer, J., in Kansas v. Bradley, 26 Fed. R. 289, 290.

3 Starin v. New York, 115 U. S. 248, 257; Southern Pac. R. Co. v. California, 118 U. S. 109, 112; New Or leans v. Benjamin, 153 U. S. 411; St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659; McCain v. Des Moines, 174 U. S. 168; Blue Bird Min. Co. v. Largey, 49 Fed. R. 289, 291; W. U. Tel. Co. v. Ann Arbor R. Co., 178 U. S. 239.

4 Osborn v. U. S. Bank, 9 Wheat. 738, 823; Pacific Railroad Removal Cases, 115 U. S. 1; Northern Pac. R. Co. v. Amato, 144 U. S. 465; St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659.

5 Adams Express Co. v. Denver & R. G. R. Co., 16 Fed. R. 712.

8

such bank. This exception leaves the Circuit and District Courts with jurisdiction over cases therein included commenced after the act of 1887. A suit seeking a receiver of the assets of a national bank which were in the hands of a statutory agent of the shareholders was held to be within the jurisdiction of a Federal Circuit Court. Where all the parties on the other side of the controversy are citizens of a different State from that where the national bank is located, the Circuit Court may have jurisdiction of the case if the residence and value of the subject-matter fulfill the statutory requirements. A suit by a national bank upon the bond of its cashier, conditioned upon the performance of his duties "according to law and the by-laws" of the bank, was held to arise under the statutes of the United States.10 Suits to determine the title to a patent," which are not founded upon section 4915 of the Revised Statutes, to compel the assignment of a patent or copyright, and to enforce by a judgment for royalties 15 or

12

"Act of March 3, 1887, § 4, 24 St. at L. 552. See Armstrong v. Ettlesohn, 36 Fed. R. 209; Armstrong v. Trautmann, 36 Fed. R. 275; McConville v. Gilmour, 36 Fed. R. 277; Whittemore v. Amoskeag Nat. Bank, 134 U. S. 527; First Nat. Bank v. Forest, 40 Fed. R. 705; Ex parte Jones, 164 U. S. 691; Farmers' Nat. Bank v. McElhinney, 42 Fed. R. 801; Sowles v. First Nat. Bank of St. Albans, 46 Fed. R. 513; Bailey v. Mosher (C. C. A.), 63 Fed. R. 488; Bailey v. Mosher, 74 Fed. R. 15; Prescott v. Haughey, 65 Fed. R. 653; Speckart v. German Nat. Bank, 85 Fed. R. 12.

As to the right to review the State court's decisions in such cases, see McCormick v. Market Nat. Bank, 165 U. S. 538; Seeberger v. McCormick, 175 U. S. 274; First Nat. Bank v. Anderson, 172 U. S. 573; Capital Nat. Bank v. First Nat. Bank, 172 U. S. 425; Chemical Nat. Bank v. City Bank, 160 U. S. 6-16; Union Nat. Bank v. Louisville, N. A. & C. Ry. Co., 163 U. S. 325; Logan County Nat. Bank v. Townsend, 139 U. S. 67; Leyson

13

v. Davis, 170 U. S. 36; Miller v. Lancaster Nat. Bank, 106 U. S. 542; California Nat. Bank v. Kennedy, 167 U. S. 362.

7 Stephens v. Bernays, 44 Fed. R. 642.

8 Snohomish County Bank v. Puget Sound Nat. Bank, 81 Fed. R. 518; Lake Nat. Bank v. Wolfeborough Nat. Bank (C. C. A.), 78 Fed. R. 517.

9 Petri v. Commercial Nat. Bank, 142 U. S. 644; First Nat. Bank v. Forest, 40 Fed. R. 705.

10 Walker v. Windsor Nat. Bank (C. C. A.), 56 Fed. R. 76.

11 Montgomery P. S. C. Co. v. Street S. C. Line, 43 Fed. R. 329.

12 Bernardin v. Northall, 77 Fed. R. 849.

13 Pliable Shoe Co. v. Bogart, 81 Fed. R. 521.

14 Hoyt v. Bates, 81 Fed. R. 641. 15 Albright v. Teass, 106 U. S. 613; Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46; Felix v. Scharnweber, 125 U. S. 54. But see St. Paul v. Starling, 127 U. S. 376.

17

otherwise, 16 or to set aside a contract for the use of a patent or copyright, such as a license, at least where the validity of the patents and copyrights are not disputed, do not arise under the laws of the United States. But a suit arises under the laws of the United States when brought to enjoin the infringement of a patent although the defendant does not deny the validity thereof.18 It has been said that a dispute as to the assignability of a license to use a patent arises under the laws of the United States.19 A suit to enjoin an imitation of a trademark does not arise under the laws of the United States, unless the bill shows that the trade-mark is duly registered, and that it is used on goods intended to be transported to a foreign country, or to be used in lawful trade with an Indian tribe.20 A suit to restrain unfair competition in trade where the complainant seeks no protection for a registered trade-mark does not present a Federal question in the absence of special circumstances. A proceeding under United States Revised Statutes, section 2326, for the trial of adverse claims to a mining patent is not cognizable by the Federal courts unless there is a dispute as to the construction or validity of an act of Congress or a difference of citizenship. It has been held that questions of fact as to whether a mine is a "vein," "lode," or "ledge," and as to what is the top or apex of a vein within the meaning of United States Revised Statutes, sections 2320, 2322 and 2325, and as to what are the boundaries mentioned in a mining patent or land grant, do not involve Federal questions; 23 that a suit

21

22

16 Marsh v. Nichols S. S. Co., 140 U. S. 344; Pratt v. Paris G. L. & Co., 168 U. S. 255.

17 Wilson v. Sandford, 10 How. 99; Hartell v. Tilghman, 99 U. S. 547; Wader v. Lawder, 165 U. S. 624; McMullen v. Bowers (C. C. A.), 102 Fed. R. 494; Standard D. Mfg. Co. v. Nat. Tooth Co., 95 Fed. R. 291.

18 White v. Rankin, 144 U. S. 628; Walter A. Wood H. Co. v. Minneapolis E. H. Co., 61 Fed. R. 256; Atherton Mach. Co. v. Atwood-Morrison Co. (C. C. A.), 102 Fed. R. 949; Dunham v. Bent, 72 Fed. R. 60; Young R. L. N. Co. v. Young L. N. Co., 72 Fed. R. 62; Elgin W. P. & P. Co. v.

Nichols (C. C. A.), 65 Fed. R. 215. But see Silver v. Holt, 84 Fed. R. 809. 19 Walter A. Wood Co. v. Minneapolis E. H. Co., 61 Fed. R. 256.

20 Allen B. Wrisley Co. v. George E. Rouse S. Co. (C. C. A.), 90 Fed. R. 5; Ryder v. Holt, 128 U. S. 525; Trademark Cases, 100 U. S. 82.

21 Illinois Watch Co. v. Elgin Nat. W. Co. (C. C. A.), 94 Fed. R. 667; s. C., 179 U. S. 665, 677; Burt v. Smith (C. C. A.), 71 Fed. R. 161.

22 Blackburn v. Porland G. M. Co., 175 U. S. 571; Shoshone M. Co. v. Rutter, 177 U. S. 505.

23 Blue Bird Min. Co. v. Largey, 49 Fed. R. 289; Largey v. Blue Bird Min.

26

to set aside a land patent solely on account of fraud does not arise under the Constitution and laws of the United States, 24 nor does a bill when filed by a homestead entryman to secure his protection while making the improvements required by the acts of Congress from interference by parties who claimed the land under the Town Site Act, but whose claims had been rejected by the Secretary of the Interior.25 Where, however, the decision of a case depends upon the construction of the land laws, the suit arises under the laws of the United States." Actions upon bonds required by orders of Federal courts," upon the bonds of deputy collectors,28 cashiers of national banks 29 and Federal marshals, or other public officers," arise under the laws of the United States. A suit against a marshal for an abuse of Federal process against the defendant to the writ,*2 or for levying under a writ upon property claimed by a stranger to the suit, but which the marshal claims belonged to the defendant to the writ, arises under the laws of the United States; but a suit against a marshal for a levy upon goods, which he does not claim to be the property of a person named in the writ, does not. A suit was held to arise under the laws of the United States when brought against a private person for

33

30

Co., 49 Fed. R. 292; Robinson v. Anderson, 121 U. S. 522; Lamb v. Ewing, 54 Fed. R. 269; Dewey Min. Co. v. Miller, 96 Fed. R. 1; Montana O. P. Co. v. Boston & M. C. C. & S. M. Co. (C. C. A.), 85 Fed. R. 867. But see Nevada S. O. Co. v. Miller, 97 Fed. R. 681.

24 Holland v. Hyde, 41 Fed. R. 877. But see Cates v. Producers' C. O. Co., 96 Fed. R. 7.

25 King v. Lawson, 84 Fed. R. 209; Butler v. Shafer, 67 Fed. R. 161. But see Jones v. Florida, C. & P. R. Co., 41 Fed. R. 70.

26 Dunton v. Muth, 45 Fed. R. 390, 395; Jones v. Florida, C. & P. R. Co., 41 Fed. R. 70; Murray v. Blue Bird Min. Co. Ld., 45 Fed. R. 385; Cheesman v. Shreve, 37 Fed. R. 36; Evans v. Durango Land & Coal Co., 80 Fed. R. 433; Butler v. Shafer, 67 Fed. R.

161; Pierce v. Molliken, 78 Fed. R. 196.

27 Leslie v. Brown (C. C. A.), 90 Fed. R. 171. See Lamb v. Ewing, 54 Fed. R. 269, and infra, § 21.

28 Crawford v. Johnson, Deady, 457. 29 Walker v. Windsor Nat. Bank (C. C. A.), 56 Fed. R. 76.

30 Feibelman v. Packard, 109 U. S. 421; Bachrack v. Norton, 132 U. S. 337.

31 U. S. v. Belknap, 73 Fed. R. 19. 32 Front St. Cable Ry. Co. v. Drake, 65 Fed. R. 539.

33 Bock v. Perkins, 139 U. S. 628. See Buck v. Colbath, 3 Wall. 531. But in such a case the declaration need not allege that the defendant acted as marshal. Drake v. Paulhamus (C. C. A.), 66 Fed. R. 895. 34 Buck v. Colbath, 3 Wall. 53.