wrongfully causing a marshal to levy a Federal execution upon the plaintiff's property, claimed by the defendants to belong to the judgment debtor.35

A suit against the receiver of a national bank to establish a claim against the corporation arises under the laws of the United States.36 It was held that the receiver of a national bank appointed by the Comptroller could intervene and remove a suit instituted before his appointment against the bank and others to recover money fraudulently obtained, since it was a case "for the winding up of the affairs of the business."" But a bill against a national bank receiver and an executor to recover a legacy, where some of the decedent's assets were deposited in the bank, was dismissed at circuit as not arising under a law of the United States.38

Where either party is the receiver of a corporation created by an act of Congress, the suit arises under the laws of the United States.39 So does a suit by or against the receiver of a State corporation appointed by a Federal court when the va lidity or construction of an order of that court is in question; 40 but otherwise, it seems, not a suit against such a receiver for negligence," nor a suit by such a receiver to enforce a cause of action vested in the corporation before his appointment," although in the latter case, at least, the Federal court may exercise a jurisdiction which is ancillary to that over the suit in which he was appointed."3

35 Hurst v. Cobb, 61 Fed. R. 1. Original jurisdiction of suits against collectors of internal revenue was denied. Cincinnati Br. Co. v. Bettman, 102 Fed. R. 16.

36 Auten v. U. S. Nat. Bank, 174 U. S. 125, 141; Sowles v. Witters, 43 Fed. R. 700. See Kennedy v. Gibson, 8 Wall. 488; Wichita Nat. Bank v. Smith (C. C. A.), 72 Fed. R. 568.

37 Speckart v. German Nat. Bank, 85 Fed. R. 12.

38 Wardens, etc. of St. Luke's Church v. Sowles, 51 Fed. R. 609. But see Speckart v. German Nat. Bank, 85 Fed. R. 12; Metropolitan T. Co. v. Columbus, S. & H. R. Co., 93 Fed. R. 689; Sonnentheil v. Christian

M. Br. Co., 172 U. S. 401; Bartley v.
Hayden, 74 Fed. R. 913.

39 Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593.

40 Pope v. Louisville, N. A. & C. Ry. Co., 173 U. S. 573, 581; Board of Com'rs v. Peirce, 90 Fed. R. 764; infra, § 249.

41 Bausman v. Dixon, 173 U. S. 113; Pope v. Louisville, N. A. & C. Ry. Co., 173 U. S. 573, 579; Gableman v. P. D. & E. Ry. Co., 179 U. S. 335; infra, $249.

42 Pope v. Louisville, N. A. & C. Ry. Co., 173 U. S. 573; infra, § 249. 43 White v. Ewing, 159 U. S. 536; infra, §§ 21, 249.

A suit upon a judgment recovered in a Federal court is not necessarily a suit arising under the laws of the United States." But it was held that a suit to enjoin a tax levy ordered by the mandamus of a Federal court,45 and a suit where there was a dispute as to how far a State statute concerning liens upon land applied to a Federal judgment," arose under the laws of the United States.

49

47

An action by an attorney for damages caused by his disbarment by a State court for language spoken in a Federal court does not. 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.48 A suit does not arise under the Constitution or laws of the United States unless the Federal question appears clearly, not merely inferentially, upon the face of the plaintiff's pleadings in his statement of his own case.50 His allegation that the defendant will set up a defense based upon a Federal statute or the Constitution of the United States will not bring the case within the Federal jurisdiction." A Federal question raised for the first time by the defendant must be tried by the State court, subject to review by the Supreme Court of the United States. It has been held that where the complaint set up a Federal question, but the answer disclaimed any controversy upon that point, the case should be dismissed or remanded for want of Federal

44 Provident Sav. Soc. v. Ford, 114 U. S. 635; Metcalf v. Watertown, 128 U. S. 586. See Winter v. Swinburne, 8 Fed. R. 49, and infra, § 21. An issue whether full force and effect had been given to the judgment of a State court was held not to involve the construction of the Constitution of the United States. Merritt v. American Steel Barge Co. (C. C. A.), 75 Fed. R. 813.

45 First Nat. Bank v. Society for Savings (C. C. A.), 80 Fed. R. 581.

46 Cooke v. Avery, 147 U. S. 375; Sowles v. Witters, 46 Fed. R. 497.

47 Green v. Elbert, 63 Fed. R. 308; Green v. Rogers, 56 Fed. R. 220.

48 Leather Mf'rs Bank v. Cooper, 120 U. S. 778, 781.

52

49 Hanford v. Davies, 163 U. S. 273; W. U. Tel. Co. v. Ann Arbor R. Co., 178 U. S. 239.

50 Tennessee v. Union and Planters' Bank, 152 U. S. 454; Chappell v. Waterworth, 155 U. S. 102; Third St. S. Ry. Co. v. Lewis, 173 U. S. 457.

51 Florida Cent. & P. R. Co. v. Bell, 176 U. S. 321; City Ry. Co. v. Citizens' St. R. Co., 166 U. S. 557; Montana O. P. Co. v. Boston & M. C. C. S. M. Co. (C. C. A.), 93 Fed. R. 274. But see Walla Walla City v. Walla Walla Water Works Co., 172 U. S. 1; Cox v. Gilmer, 88 Fed. R. 343.

52 Tennessee v. Union and Planters' Bank, 152 U. S. 454, 462.

53

jurisdiction, and that where the Federal cause of action fails, relief cannot be granted upon another ground.54

§ 18. Controversy between citizens of different States.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.1

The citizenship of formal parties with no real interest in the controversy does not affect the jurisdiction. Such are the husband of the plaintiff when made a defendant to a suit against another to enforce the trusts of a marriage settlement; a State in a suit for the use of an individual brought upon a bond given by a public officer, an administrator, or an attaching creditor; an agent or attorney of a corporation when a defendant to a suit against it seeking no relief against him; the sheriff and the commissioners of appraisal summoned by him when defendants to a suit to enjoin a corporation from prosecuting condemnation proceedings.9

6

Such have been held not to be a mere stakeholder in possession of property to recover which the suit is brought; 10 an ad

53 Robinson v. Anderson, 121 U. S. 522, 524; Crystal Springs L. & W. Co. v. City of Los Angeles, 82 Fed. R. 114. 54 Larrowe-Loisette v. O'Loughlin, 88 Fed. R. 896.

490. See also Northman v. Wade, 77 Ga. 651.

6 Wisconsin ex rel. v. Bowles Milling Co., 80 Fed. R. 161. So a marshal in such a suit upon a bond given

§ 18. Blake v. McKim, 103 U. S. to him. Wade v. Wortsman, 29 Fed. 336.

2 Removal Cases, 100 U. S. 457; Barney v. Latham, 103 U. S. 205; Harter v. Kernochan, 103 U. S. 562; Maryland v. Baldwin, 112 U. S. 490; Wormley v. Wormley, 8 Wheat. 421; Taylor v. Holmes, 14 Fed. R. 499; New Chester Water Co. v. Holly Mfg. Co. (C. C. A.), 53 Fed. R. 19, 26; infra, S$ 38, 51, 383, 384. But see Blackburn v. Portland G. M. Co., 175 U. S. 571; Pittsburg, C. & St. L. Ry. Co. v. B. & O. R. Co. (C. C. A.), 61 Fed. R. 705. 3 Wormley v. Wormley, 8 Wheat. 421.

4 Indiana ex rel. Stanton v. Glover, 155 U. S. 513. See National Bank v. Rutledge, 84 Fed. R. 400.

5 Maryland v. Baldwin, 112 U. S.

R. 754.

7 Wood v. Davis, 18 How. 467; Brown v. Murray Nelson & Co., 43 Fed. R. 614; Overman Wheel Co. v. Pope Mfg. Co., 46 Fed. R. 577.

8 Brown v. Murray Nelson & Co., 43 Fed. R. 614.

9 Sioux City & D. M. Ry. Co. v. Chicago, M. & St. P. Ry. Co., 27 Fed. R. 770.

10 Wilson v. Oswego Tp., 151 U. S. 56; Massachusetts & S. Constr. Co. v. Cane Creek Tp., 155 U. S. 283. But see Pacific R. Co. v. Ketchum, 101 U. S. 289, 298; Bacon v. Rives, 106 U. S. 99; N. Y. Constr. Co. v. Simon, 53 Fed. R. 14; Reeves v. Corning, 51 Fed. R. 774, 778, and cases cited.

ministrator with the will annexed in a suit for a construction of the will; and a corporation in a suit by its mortgagee to cancel a contract made with it, although it was alleged that its assets were insufficient to pay the mortgage.12

In determining between whom the controversy exists, the court is not bound by the title of the cause, or the form of the pleadings, 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 plaintiffs or defendants may be.13 In a suit by taxpayers against county officers and bondholders to enjoin payment of the bonds, the defendant officers were presumed to take the same side of the controversy as the taxpayers.1 It has been held that, in a suit by a bondholder to enforce a right after his trustee has refused to sue upon the same, the defendant trustee is upon the same side of the controversy as the plaintiff, unless the latter seeks some relief antagonistic to the other beneficiaries of the trust,16 or perhaps when he claims some substantial relief against the trustee. Where, upon the foreclosure of a second mortgage, the plaintiff claimed that the first mortgage had been paid, and the first mortgagee, who was a defendant to that foreclosure, filed a cross-bill to foreclose his prior mortgage, it was held that in the controversy upon such cross-bill the mortgagor and the second mortgagee,

15

11 Security Co. v. Pratt, 64 Fed. R. 562; Anderson v. Bowers, 40 Fed. R. 405. 708.

12 Consol. Water Co. v. Babcock, 76 Fed. R. 243.

13 Removal Cases, 100 U. S. 457, 468; Pacific R. Co. v. Ketchum, 101 U. S. 289; Barney v. Latham, 103 U. S. 205; Carson v. Hyatt, 118 U. S. 279, 286; Brown v. Murray Nelson & Co., 43 Fed. R. 614; Anderson v. Bowers, 40 Fed. R. 708; Cilley v. Patten, 62 Fed. R. 498; Board of Trustees v. Blair, 70 Fed. R. 414; Blacklock v. Small, 127 U. S. 96; Mangels v. Donau Br. Co., 53 Fed. R. 513; Oberlin College v. Blair, 70 Fed. R. 414. But see Reavis v. Reavis, 98 Fed. R. 145.

15 Pacific R. Co. v. Ketchum, 101 U. S. 289; Blacklock v. Small, 127 U. S. 96; Shipp v. Williams (C. C. A.), 62 Fed. R. 4; First Nat. Bank v. Radford Tr. Co. (C. C. A.), 80 Fed. R. 569, 573; Barry v. Mo., K. & T. Ry. Co., 27 Fed. R. 1. But see Bowdoin College v. Merritt, 63 Fed. R. 213; Reinach v. Atlantic & G. W. R. Co., 58 Fed. R. 33; Kildare Lumber Co. v. National Bank (C. C. A.), 69 Fed. R. 2.

16 First Nat. Bank v. Radford Tr. Co., 80 Fed. R. 569, 571, 573; Rust v. Brittle Silver Co. (C. C. A.), 58 Fed. R. 611; Kildare Lumber Co. v. Na14 Harter v. Kernochan, 103 U. S. tional Bank (C. C. A.), 69 Fed. R. 2.

who was the original plaintiff, were on the same side and opposed to the cross-complainant.17 In a suit by a mortgagee to protect the mortgaged property, a defendant mortgagor is upon the plaintiff's side of the controversy unless affirmative relief is sought against him. It was held that, in a suit for specific performance, one of the joint vendors who wished to have the sale perfected was properly made a co-plaintiff with the vendees and was on their side of the controversy.19

18

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; 20 but in one case the court retained jurisdiction by allowing an amendment which made one of the original plaintiffs a defendant."1 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 the plaintiff; 22 but the resignation after suit brought of a defendant trustee," and the filing of a disclaimer by a defendant,24 who were citizens of the complainant's State, were held not to save the jurisdiction. Jurisdiction is not lost because a defendant ceases to resist the plaintiff's demand; 25 nor by the addition by amendment,

26

17 Wolcott v. Sprague, 55 Fed. R. del, 50 Fed. R. 368; Hicklin v. Marco 545. (C. C. A.), 56 Fed. R. 549; Horn v. Lockhart, 17 Wall. 570; Bane v. Keefer, 66 Fed. R. 610; Mason v. Dullingham, 82 Fed. R. 689; Grove v. Grove, 93 Fed. R. 865; Hopkins v. Oxley Stave Co., 83 Fed. R. 912; Smith v. Consumers' C. O. Co., 86 Fed. R. 359; Tug R. C. & S. Co. v. Brigel, 86 Fed. R. 818; infra, §§ 19, 391.

18 Consol. Water Co. v. Babcock, 76 Fed. R. 243; Boston S. D. & Tr. Co. v. Racine, 97 Fed. R. 817; Old Colony Tr. Co. v. Atlanta Ry. Co., 100 Fed. R. 798. Cf. Mercantile Tr. & D. Co. v. Collins P. & B. R. Cɔ., 99 Fed. R.

812.

19 Megibben's Adm'rs v. Perin, 49 Fed. R. 183. Approved as to this point upon reversal, Perin v. Megibben, 53 Fed. R. 86, 91.

20 Anderson v. Watt, 138 U. S. 694. But see Hicklin v. Marco (C. C. A.), 56 Fed. R. 549; Whittle v. Artis, 55 Fed. R. 919.

21 Conolly v. Taylor, 2 Peters, 556. 22 Beebe v. Louisville, N. O. & T. R. Co., 39 Fed. R. 481, 484; Morse v. South, 80 Fed. R. 206, 207; Claiborne v. Wad

23 Ruohs v. Jarvis-Conklin Mtg. Tr. Co., 84 Fed. R. 513.

24 Wetherby v. Stinson, 62 Fed. R. 193. But see Frazer Lubricator Co. v. Frazer, 23 Fed. R. 305.

25 Park v. N. Y., L. E. & W. R. Co., 70 Fed. R. 641.

26 Ober v. Gallagher, 93 U. S. 199, 206; Stewart v. Dunham, 115 U. S. 61, 64; Phelps v. Oakes, 117 U. S. 236; Hardenberg v. Ray, 151 U. S. 112.