Page:Federal Reporter, 1st Series, Volume 2.djvu/841

 834 WBDEBUi BSFOaXEB. �KeITH V. TOWN OF EOCKINGHAM, �(GireuCt Court, D. Vermont. May, 1880.) �J0BISDICTION — State Statutb. — The fact that an action is wboTlj f ounded upon a state statute does not necessarily defeat the jurisdictioa of the circuit court. �Motion to dismiss for want of jurisdiction. �Jonathan B. Farnsworth, for plaintiff. �Charles N, Davenport, for defendant. �Whebleb, D. J. This is an action on the case founded npon section 41, c. 25, Gen. St. Vt., whieh provides that "if any special damage shall happen to any person, his team, carriage, or other property, by means of the insufiSciency or -want of repairs of any high-way or bridge in any town, which Buch town is liable to keep in repair, the person sustaining Buch damage shall have the right to recover the same in an action on the case in any court proper to try the same." The plaintiff is alleged to be a citizen of Massachusetts, and the defendant is a town in Vermont. The defendant moves to dismiss for want of jurisdiction, because, as is argued, this is not an action at common law or in equity, of which jurisdic- tion is given to the circuit courts of the United States by sec- tion 629, U. S. Eev. St., and section 1 of the aet of March 3, J1876, to determine the jurisdiction of the circuit courts of the United States, (18 St. at Large, 470, c. 137,) but is an action founded wholly upon the statutes of the state, and a proceed- ing of which the state courts only can have jurisdiction. The cause bas been heard upon this motion. �The constitution of the United States extends the judicial power of the United States to controversies between citizens of different states. Article 3, § 2. Under this section, and the one next preceding, authorizing congress to ordain and establish coiirts, jurisdiction bas been given to the circuit courts, by the statutes cited, of suits of a civil nature at com- mon law, in which there shall be a controversy between citi- zens of different states. The question is whether this is an action at common law. The same expression is used in arti- ����