Page:Federal Reporter, 1st Series, Volume 5.djvu/36

 2e FEDERAL REPORTBR. �cause of action to the present plaintiff, who was substituted upon the record as plaintiff, and, being a citizen of Colorado, thereafter moved for and obtained an order of removal on the ground of the citizenship of the parties. �It is conceded that, unless the case presents a federal ques- tion, — of which I will speak presently, — the plaintiff could not have brought his suit originally in this court ; but it is insisted that, inasmuch as the second section of the act above named, which provides for the removal of causes from the state to the federal courts, does not contain the prohibition against Buits by assignees, a case of this character may be brought here by rismoval, The somewhat analogous sections of the judi- ciary act of 1789 (sections 11 and 12) were considered by the supreme court in Bushnell v. Kennedy, 9 Wall. 387. In that case the Jiourt said : "The restriction in the eleventh section is not found in the twelfth ; nor does the reason for the restric- tion exist. In the eleventh section its office was to prevent frauds upon the jurisdictipn, and vexation of defendants, by assignments made for the purpose of having suits brought in the name of assignees, but in reality for the benefit of assignors. In the twelfth it would have no office, for the removal of suits could not operate as a fraud on jurisdiction, and was a privi- lege of defendants, not a hardship upon them." �It is manifest that this reasoning has no application to the act of March 3, 1875, which gives the right of removal to either party. Under the judiciary act, inasmuch as the privi- lege of removal belonged only to the defendant, it was, as the supreme court well said, impossible for plaintiffs to perpetrate frauds upon the jurisdiction by assigning claims to non-resi- dents for the purpose of having suit brought in the state court and removed thence to the federal courts. A plaintiff could not romove a case under that act. But, under the act of 1876, since either party may remove, it is evident that great frauds upon our jurisdiction may be perpetrated with impunity, if the assignee of any claim founded on contract may insti- tute suit in a state court, and at once remove the cause to this court. ����