Page:Federal Reporter, 1st Series, Volume 4.djvu/275

 CliABKSON V, IfAKSOK. 261 �plaîntiffs' recovery is wholly defeated, then ihe defendant becomes actor, and may recover judgment for the wliole or a part of the $750. �Still, both proeeedings are in one suit, as the word "suit" is nsed in the act of 1875. The first section of the act of 1875 uses the expressions "suits/of a civil nature," "civil action," and "civil suit" as synonymous. The second sec- tion of that act uses the expressions "suits of a civil nature" and "said suit" in the same sehse. The third section of that act uses the expressions "suit" and "such suit," and "the cause" and "action" in the same sense. The same is true of the same words, and also of the word "case," when used in the subsequent sections of that act. In the sense of sections 2 and 6 of the old code of procedure of Nev? York (unrepealed) the proceeding by the defendant against the plaintiffs td re- cover the $750 is an action and a civil action, the defendant being permitted to become actor in the given case. The statutes of New York now use the word "action," and discard ail other terms. The proceeding by the defendant against the plaintiffs being a civil action, in a suit of a civil nature, and the matter in dispute in it exceeding, exclusive of côsts, the sum or value of $500, is brought in the state court, under the authority of the statute of New York, in the form in which it is brought, although the defendant îs turned into a plaihtiff and the plaintiff into a defendant, and jurisdietion of the person of the plaintiff is obtained by the fact that the plaintiff came into court and brought the defendant in first, in the action brought by the plaintiff. It clearly makes a case for removal. But what is to be removed? The act of 1875 says that "said suit" is to be removed. Is the proceeding or action by the defendant, bis affirmative claîm, the only thing that is to be removed, leaving the claim of the plaintiffs to be litigated in the state court, the former claim being $750 and the latter $195? �In view of the facts that the suit is in form one brought by the plaintiffs against the defendant, and includes the plain- tiffs' claim, by the voluntary act of the plaintiffs, and is made to include the defendant's claim by the operation of the stat- ����