Page:Federal Reporter, 1st Series, Volume 1.djvu/800

 792 FEDERAI. REPORTER. �and allowed the case to proceed as to the resident defendants în the state court. This was the first material departure from the act of 1789. This act was amended by the aet of March 2, 1867, se as to allow a removal on the application of either plaintiff or 'defendant, on mailing and filing in the state court an affidavit that he had reason to believe, and did beliere, that from prejudice or local influence he would not be able to obtain justice in the state court. �Tliis still further widened the jurisdiction by allcving a removal on the application of the plaintifï as well as defend- ant. The law of 1875 is broader and more comprehensive than ail the others, and it would seem that congress, by employing the language they did, intended to avoid the con- struction so uniformly placed upon the previous acts, and td allow a removal wherever there should be, in the language of the constitution, a controversy between citizens of ditïerent states, although some of the plaintiffs or defendants, not being merely nominal' parties, should have a common state citizenship with some or ail of the opposing party, plaintiff or defendant. Indeed, it seems difficult to give meaning and effect to the act of 1875, without enlarging the jurisdiction of the circuit court, from what it stood under the construction given to previous laws, to conform more nearly to the con- stitution itself, whose language congress for the first time adopts. �In Lockhart v. Horn, 1 Woods, C. C. K. 628, Mr. Justice Bradley, in a case arising under the previous law, says : �" Were this an original question I should say that the fact of a common state citizenship existing between thecomplain- ants and a part only of the defendants, provided the other defendants were citizens of the proper state, would not oust the court of jurisdiction. It certainly would not under the constitution. The case would still be a controversy between citizens of different states. But the strict construction put by the courts upon the judiciary act is decisive against the jurisdiction, and I am bound by it." �But is Buch construction applicable to the act of 1875? Certainly not, if Mr. Justice Bradley is correct in sayiug that ��� �