ligible and absolutely consistent, so far as it concerns this class of suits, from beginning to end; but if, wandering among the shattered purposes or designs of former acts, we seek any other spirit for this, and try to interpret it in conformity with the more liberal provisions of that legislation, or as a mere amendment of former laws, we are at once lost in a maze of wholly inconsistent phrases, that become meaningless and uninterpretable, according to the rules for construing statutes.

If, for instance, the case above cited has put the proper construction on the act, it renders nugatory, it seems to me, every provision for the removal of this class of cases; nobody being entitled to remove any one of them at all under any circumstances, and only suits in which the jurisdiction depends upon the subject-matter of the suits, and not the diverse citizenship of the parties, are removable; for there is nothing plainer in the act than the intention that a defendant sued in his own state court shall not remove the case. If he cannot, and citizens of other states made defendants in a state court cannot, as that case is thought to hold, who can remove? And, if neither of these, then why put any provision in the act for the removal of such suits at all? This seems conclusive to me against that interpretation of the act, if what is there ruled as to corporations is to be applied to natural persons, and whether it be a proper construction, even as to corporations, need not be now determined.

The former legislation had pushed the jurisdiction of the federal courts almost to the very verge of the constitutional grant, but this reactionary legislation returns, in deference to the local jealousy of the states, to that policy of restriction which entered so largely into the structure of the original act of 1789, consequent upon the struggle to form any union at all, from which its projectors had just emerged. Yet, notwithstanding this manifestly restrictive policy, the new act should be judicially treated, so far as it goes, as other voluntary legislative grants of jurisdiction are, and nothing should be implied, as some of the cases considering the act seem to suggest, from those restrictions themselves, which is inconsistent with the rule of a liberal construction in furtherance of the accomplishment of the designated purpose of the congressional grant, whatever that purpose be. Here there is a manifest intention to afford such protection as is assumed to be found in the federal jurisdiction to every nonresident defendant sued by his adversary in the home courts of that adversary, against any possible partiality in those courts.

Turning, now, to the phraseology of the act, let us examine it in relation to this character of suit, where the jurisdiction is dependent only on the diverse citizenship of the parties. And first as to the original jurisdiction which this court might have acquired over this suit, does not the act in its first section say in so many words "but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant?" It is said in the case cited that this clause is "prohibitory in form" and "does not enlarge the jurisdiction, or confer jurisdiction in a case otherwise expressly prohibited." It is, indeed, prohibitory, or rather restrictive, in form, and possibly

does not enlarge any previously granted jurisdiction; and yet it is not as prohibitory or restrictive as the statement suggests; and that is the real question,-How far does the prohibition or restriction go? The provision of the act, which is said not to have been enlarged, is in these words: "And no civil suit shall be brought before either of said courts against any person by any original process of [sic] proceeding in any other district than that whereof he is an inhabitant." Now, this prohibition has been in every act from 1789 down, and yet the jurisdiction was in fact enlarged, notwithstanding that prohibition in the original act, by the very next clause, which reads, "or in which he shall be found at the time of serving the writ," (1 St. 79;) and, likewise, it was enlarged in the act of 1875 by the next clause thereto, which reads, "or in which he shall be found at the time of serving such process or commencing such proceeding, except as hereinafter provided," (18 St. 470;) and so there was an extension of the privilege of the plaintiff to sue in other districts than that whereof the defendant was an inhabitant, until we had that freedom of selection of a district in which to sue that has been already described. If these clauses could enlarge the jurisdiction in those acts, notwithstanding the leading prohibition, why cannot the new clause of the new act enlarge it to the extent indicated of allowing the plaintiff two districts only, instead of so many as he had before? But the fact is, this new clause assumes a prohibitory, or more properly a restrictive form, because the new act is in form amendatory, and the language is seeking to restrict the broad permission of former acts to sue the defendant wherever found; but non constat that it goes as far in its prohibition as the case cited seems to hold that it does. The other language quoted from the new act must have effect, and the plaintiff be thereby permitted to sue "in the district of the residence of either the plaintiff or the defendant." Such words as these cannot be discarded because of the mere form of the clause. The form of the whole statute is unfortunate; for it would have been better understood, if it had been in form, as it is in fact, a new act, instead of a mere patch-work amendment of the old statute. We have by the opening clauses of the first section the most absolute jurisdiction of "all suits of a civil nature, etc., in which there shall be a controversary [sic] between citizens of different states, etc." The subsequent restrictive clause as to the locality of the suit, already quoted, is itself subsequently qualified so that the joint product of the two is entirely within. this primary grant of jurisdiction, and hence there is no kind of enlargement necessary. The clause forbidding suits "in any other district than that whereof he (the defendant) is an inhabitant" should be read as if the next clause were introduced as a proviso, which it clearly is.

It seems to be conceded that, if we could have had original jurisdiction of this suit, we may acquire it by removal on the terms and under the restrictions of the new act. At all events, if the above view be correct, this case comes within the clause of the second section which limits the jurisdiction to suits "of which the circuit courts of the United States are given jurisdiction by the preceding section." But there is a further restriction which points out the defendant here as the very char

acter of party, and the only kind of party, who could remove, namely, "the defendant or defendants therein, being non-residents of that state," that is to say, of the state in whose court the suit is brought. If the parties had been reversed, and Vance had brought this suit-one embodying his side of the same controversy-in the state court of this state, as he might have done, he could not have removed it here, although we might have had original jurisdiction of it, because, being plaintiff, and having selected his own forum, he must abide there; and so Gavin, who would then be the defendant, could not remove it, although we might have had original jurisdiction, because, being in his own state court, he is compelled to remain there by the restrictive language last quoted from the second section of the new act; and, to show this more clearly, the identical prohibition on any removal by him reappears even in the subsequent local prejudice clause, thus: "In which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove," etc. On the other hand, if Vance had caught Gavin in Mississippi, he might have sued him originally in the federal district in which he himself resided, or, suing him in a state court there, Gavin could then have removed the suit to the proper federal court, but Vance could not. Moreover, the primary grant of jurisdiction contained in the first clause of the first section-to which it is possible the removal section refers, rather than to the more restricted clause relating to the locality of the suit-is of the most extensive character and broad enough to give the court jurisdiction by removal of any suit between citizens of different states brought in a state court, although the locality might not be available for original jurisdiction of the federal court under the subsequent restrictive clauses of that first section. So that the restrictions of locality as to suits originally brought may not apply to the jurisdiction by removal at all. In other words, we must look alone to the restrictions of the removal section for the qualifications of that jurisdiction and treat those relating to the locality of original suits as wholly inapplicable to the entirely different subject of jurisdiction by removal. Whether this be a proper construction we need not say, but it is neither impossible nor improbable, nor yet an unreasonable construction.

It is certainly those suits, in this branch of the jurisdiction, brought in the residence of the plaintiff, that can be removed by the defendant residing in another state. It is certainly those suits, in this branch of the jurisdiction, brought against a defendant in his own state courts, which neither he nor the plaintiff can remove. It is just as certain that the plaintiff, bringing the suit in his own state or any court, cannot remove it. And all this because there is no just cause to complain of any danger of partial treatment as between a state's own citizens and those of another state; and, in the case of the plaintiff, if there be any such cause, he has chosen that forum and should stay there. Because neither plaintiff nor defendant could have such just cause of suspicion or complaint, it is that no especial provision seems to have been made for removal where the suit is brought in the court of a state where neither of them resides, and

that that class of cases may be excluded from the jurisdiction by removal, as they are from jurisdiction by original process. On the whole, it is my opinion that this is the proper construction of the act, and one that clears its meaning in relation to this particular suit, and shows that it is removable.

But another and more formidable question is presented by the objection that the petition for removal was not filed in time, under the requirements of the third section of the new act. The limitation in that regard is in the following language: "That whenever any party entitled to remove any suit," etc., "may desire to remove such suit from a state court to the circuit court of the United States, he may make and file a petition in such suit in such state court at the time, or at any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff," etc. 24 St. 554, § 3.

The petitioner, being a citizen of the state of Mississippi, and non-resident here, was sued in the state court by process of publication only, upon an attachment of his property in the chancery court, by an order of the chancellor to that effect. The suit is in the nature of an action of ejectment and for rents and profits, involving a controversy over a leasehold, which, according to our peculiar Tennessee practice, may be considered "of an equitable nature," in the purview of our Code, giving the chancery court jurisdiction "in all cases of an equitable nature." & V. Code Tenn. § 5022 et seq. Strictly taken, it might be treated as a suit of legal cognizance; yet it is familiar to our chancery practice as “an equitable action of ejectment." It might possibly have been brought under our attachment laws as an action of debt for the rent, but in combination with a demand for the possession of the land, the appointment of a receiver, and a prayer for attachment, it assumed the equitable form already mentioned, and was not brought under the attachment chapter of the Code at all, but under that regulating proceedings in the chancery court, and the attachment issued upon the fiat of the chancellor in pursuance of sections 5030 and 5032, M. & V. Code Tenn., and not in pursuance of section 4192. Yet, the clerk of the state court, erroneously supposing that it issued under the latter section, gave notice under the attachment chapter, referring in his notice to that section, using, possibly, the printed blank appropriate to that proceeding.

Now, in view of the language of the act of congress above quoted, there are most important distinctions between the procedure appropriate to a suit commenced by original attachment and one commenced by process of publication and equitable attachment, as this was. It is not neces

sary to detail all the essential differences in this place, though a careful reading of the whole chapter relating to each class of cases is useful in demonstrating the importance of not confusing them, as the clerk of the state court has done, when considered in their relation to a motion like this, arising under our act of congress. The fact that there is an attachment in either class of cases is naturally confusing; but care must be used in practice to distinguish the mode of procedure appropriate to each class, where the question depends, as it does here, wholly upon the mode

of procedure. If the defendant appear and answer, it cures every defect in the state court, and the distinctions perhaps are no longer important; at least, they may not be there, but, in bringing the case here and on a motion to remand, this curative quality is wholly wanting to aid us in the determination of the motion. Hence, it may be well enough in the beginning of our practice under the new act of congress to take warning that any confusion of the two classes of procedure does seriously affect the limitation of time within which a removal to a federal court may be made.

Under the attachment laws, the officer granting the attachment may, at the time of issuing it, direct that when it is levied publication be made, requiring the defendant "to appear at a time and place to be mentioned in such publication," and defend the action. M. & V. Code Tenn. § 4259. If not so made, the clerk of the court may make such order "at any time thereafter." Id. 4260. Here the time is fixed by the order, and by that alone, unless the rules and practice of the court, whether especially prescribed or growing up by mere practice, control the discretion of the officer in appointing the time. Other provisions follow, not necessary to mention particularly, and then it is provided that the attachment and publication shall be in lieu of personal service, and the plaintiff proceeds as if the suit had been commenced by summons, while the defendant, if he "appear in time," may make defense, as if the suit had been commenced by personal service of process. Id. §§ 4265, 4267. If, however, the defendant do not appear, there may be a judgment by default, as upon personal service; but if the attachment be sued out because the defendant is a non-resident, there shall be a stay of final judgment of not less than six months, nor more than twelve, and any judgment by default may be set aside within twelve months, on cause shown, and defense permitted upon such terms as may be imposed. Id. 42684270. It should have been remarked that this character of suits may be brought in any court of law or equity, although of purely legal cognizance, and not infrequently, if not most often, is in fact brought by bill in the chancery court.

Under the laws regulating proceedings in chancery, "in all cases of an equitable nature," the procedure is different from that above described. M. & V. Code Tenn. 5022 et seq. The chancellor, as was done in this case, must grant a fiat for any attachment or other extraordinary process. Id. 5030, 5032, 5054, subsec. 5, 5088. Subpoena issues on filing the bill, and, if served five days before its return-day, which may be any rule-day, the defendant must "appear" within the first three days of the term, or, if less than five days, on the first day of the second term. Id. 5082-5094. This, supplemented by chancery rule 11, and under the established practice, means, not only that the defendant shall "appear" in the technical sense known to a court of equity, but also that he shall "make defense" by filing his demurrer, motion, plea, or answer, "or obtain time therefor within the three successive days;" that is to say, within three days after the first day of the term, or such other Monday of the term as may have been designated under that chancery rule. Id. p.