3

winding up the affairs of the bank, arises under the laws of the United States, and may be removed by the defendant when it involves the jurisdictional amount. A suit against a receiver of a national bank, similarly appointed, under similar circumstances, arises under the laws of the United States and may be removed; but not unless the matter in dispute exceeds the statutory limit; nor, it has been said, when the receiver is not a necessary, although he is a proper, party to the action.4 A suit against a national bank and its receiver to enforce the bank's covenant to indemnify its lessor from any loss of rent in case of re-entry is within the jurisdiction of the Federal Court.5 The receiver of a national bank cannot intervene and remove a suit instituted against the bank before his appointment, unless the bank might have removed the case. A bill against such a receiver of a national bank and an executor to recover a legacy, where some of the decedent's assets were deposited in the bank, was dismissed as not arising under the laws of the United States.?

§ 36. Suits by and against receivers of Federal corporations. Where either party to a suit is a receiver of a corporation created by an act of Congress, the suit arises under the laws of the

$35. 1 Johnson v. Rankin (Texas), 95 S. W. 665. See Armstrong v. Ettlesohn, 36 Fed. 209; Armstrong v. Trautman, 36 Fed. 275; McConville v. Gilmour, 1 L.R.A. 498, 36 Fed. 277; Stephens v. Bernays, 44 Fed. 642; Yardley v. Dickson, 47 Fed. 835; Fisher v. Yoder, 53 Fed. 565; Short v. Hepburn, 75 Fed. 113, 21 C. C. A. 252; Thompson v. German Ins. Co., 76 Fed. 892; McCartney v. Earle, C. C. A., 115 Fed. 462.

2 Hot Springs Independent School Dist. No. 10 of Fall River County v. First Nat. Bank, 61 Fed. 417; Auburn Sav. Bank v. Hayes, 61 Fed. 911; Gilbert v. McNulta, 96 Fed. 83. See Merrill v. Nat. Bank of Jacksonville, 173 U. S. 131, 43 L. ed. 640; Auten v. U. S. Nat. Bank, 174 U. S. 125, 43 L. ed. 920; Witters v. Sowles, 42 Fed. 701; Bart

ley v. Hayden, 74 Fed. 913; Me-
Donald v. State of Nebraska, 101
Fed. 171, 41 C. C. A. 278. Contra,
Bird
v. Cockrem, Fed. Cas. No.
1,429 (2 Woods 32); Tehan v. First
Nat. Bank, 39 Fed. 577.

3 Follett v. Tillinghast, 82 Fed. 241.

4 Speckert v. German Nat. Bank, 98 Fed. 151, 38 C. C. A. 682.

5 Providence Bldg. Co. v. Atlantic Nat. Bank, 228 Fed. 814.

6 Wichita Nat. Bank v. Smith, 72 Fed. 568, 19 C. C. A. 42, 36 U. S. App. 530; writ of error dismissed. Smith v. Wichita Nat. Bank, 42 L. ed. 1214; Speckert v. German Nat. Bank, C. C. A., 98 Fed. 151; reversing 85 Fed. 12.

7 Wardens, etc., St. Luke's Church v. Sowles, 51 Fed. 609. But see supra $34.

United States.1 It has been held: that the same rule applies to receivers, appointed by the Comptroller of the Currency, of the assets of banking or trust companies organized under the laws of any of the United States, which have an office or banking house for the receipt of deposits or savings within the District of Columbia.2

§ 37. Suits by and against receivers of Federal courts. A suit by a receiver appointed by a Federal court, which is brought to enforce a cause of action vested before his appointment in the corporation which he represents, does not ordinarily arise under the laws of the United States; and consequently, it cannot be removed where the requisite difference of citizenship does not exist. Such a suit may, however, be begun in a District Court of the United States originally, because it is ancillary to that in which the receiver was appointed. Where, however, the validity of the order or decree of a Federal court appointing a receiver, or the construction of such an order or decree, is in question, the suit arises under the laws of the United States, whether the receiver is a plaintiff, or defendant.*

An action by an employee of such a receiver for injuries in the course of his employment may be brought against the latter in a District court of the United States; 5 but when brought

$ 36. 1 Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829. 2 Lyons v. Bank of Discount, 154 Fed. 391. See 34 St. at L. 458.

$37. 1 Pope v. Louisville, N. A. & C. Ry. Co., 173 U. S. 573, 43 L. ed. 814; Pepper v. Rogers, 128 Fed. 987.

2 White v. Ewing, 159 U. S. 36, 40 L. ed. 67; Pope v. Louisville, N. A. & C. Ry. Co., 173 U. S. 573, 43 L. ed. 814; Bowman v. Harris, 95 Fed. 917; Connor v. Alligator L. Co., 98 Fed. 155; Alexander v. So. Home Bldg. & L. Ass'n, 120 Fed. 963; Hampton Roads Ry. & El. Co. v. Newport News & O. P. Ry. & El. Co., 131 Fed. 534; Gunby v. Armstrong, C. C. A., 133 Fed. 417; Kirkland v. Knox, C. C. A., 230 Fed.

806; Vallery v. Denver & R. G. R. Co., C. C. A., 236 Fed. 176; Glenwood Irr. Co. v. Vallery, C. C. A., 248 Fed. 483. So when he is an ancillary receiver. Brookfield V. Hecker, 118 Fed. 942.

3 Pope v. Louisville, N. A. & C. Ry. Co., 173 U. S. 573, 581, 43 L. ed. 814, 818.

4 Board of Com'rs v. Peirce, 90 Fed. 764; for an injunction; Shinney v. North Am. Savings, L. & Bldg. Co., 97 Fed. 9; to determine the right to assets claimed by a receiver; State v. Frost, 113 Wis. 623, 89 N. W. 915; for an injunction.

5 Betts v. Bisher, C. C. A. 213 Fed. 581; Cobb v. Sertic, C. C. A., 218 Fed. 320; St. Bernard v. Shane, C. C. A., 220 Fed. 853.

in a State court, it cannot be removed. Such suits cannot be removed when brought in a State court: to recover damages for malicious conduct in carrying on the business of the receivership. For the cancellation of notes and bonds which the plaintiff had executed to the receivers under duress and fraud and for an injunction against the negotiation of the same, praying in the alternative, a recovery of damages and the impression of a trust upon the property in the receivers' hands. Or for a vacation of the franchise of the corporation over whose property the receiver was appointed.9

It has been held: that the court will take judicial notice of the fact that a defendant is a receiver; although there is no allegation to that effect in the plaintiff's pleading; 10 and that the joinder of other defendants with a receiver will not deprive him of a right of removal to which he would have been entitled had he been sued alone.11

§ 38. Suits by and against trustees in bankruptcy. The bankruptcy law provides: that the District Courts of the United States "shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same man ner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants." The construction of this is subsequently discussed.2 It has been held: that in a suit between the trustees of a bankrupt and another, when the requisite difference of citizenship exists be

6 Jud. Code, $ 28, 36 St. at L. 1094, Comp. St. § 1010 see infra. $ 537, 538; Gableman v. Peoria P. D. & E. Ry. Co., 179 U. S. 335, 45 L. ed. 220; Cobb v. Sertie, C. C. A., 218 Fed. 320.

7 Home Telephone Co. v. Powers, 176 Fed. 986.

8 Wrightsville Hardware Co. V. Hardware & Woodenware Mfg. Co., 180 Fed. 586.

9 People v. Bleecker St. & F. F.

R. Co., 178 Fed. 156. See also, Dale v. Smith, 182 Fed. 360; Vanderbilt v. Kerr, 188 Fed. 537.

10 Pitkin v. Cowen, 91 Fed. 599. 11 Landers v. Felton, 73 Fed. 311. Contra. Shearing v. Trumbull, 75 Fed. 33; Marrs v. Felton, 102 Fed. 775; Rupp v. Wheeling & L. E. R. Co., 121 Fed. 825, 58 C. C. A. 161. $ 38. 130 St. at L. § 23, p. 552, 2 Infra § 610,

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

1

§ 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

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.

:

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; 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.9 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 judgment 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;