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when he began the suit; it was held, that the court might retain jurisdiction.45

Although the plaintiff's pleading shows that more than the jurisdictional amount is due him he may waive the excess and sue for a less sum thus preventing a removal.46 An amendment. reducing the plaintiff's claim below $3,000 will not divest the jurisdiction of the court over what remains; nor will the voluntary dismissal of the plaintiff's bill divest the jurisdiction of the court over a crossbill previously filed, to recover less.47 An amendment making such reduction made in the State Court after notice of an application, but on the filing of the petition, for the removal, when authorized by the State practice, was held to reduce the value of the matter in dispute below the jurisdictional amount.48

It has been held, that the burden of proof, that the matter in dispute is less than the jurisdictional amount, when the plaintiff's pleading alleges that fact, rests upon the defendant.49 It has been held that statements by the plaintiff's assignor made before the assignment are not admissible against him to show a fraudulent attempt to prevent a removal.50 Under the former practice it was said, that such an objection should be set up by a plea in abatement and is waived by an answer to the merits.51 But it has been held: that the objection may be raised by a gen

45 Pickham v. Wheeler B. Mfg. Co., C. C. A., 77 Fed. 663; s. c., 69 Fed. 419; Stillwell B. & S. V. Co. v. Williamston O. & F. Co., 80 Fed. 68. See also Schunk v. Moline M. & S. Co., 147 U. S. 500, 37 L. ed. 255; Kunkel v. Brown, C. C. A., 99 Fed. 593; Jones v. McCormick H. M. Co., C. C. A., 82 Fed. 295; Hayward v. Norberg Mfg. Co., C. C. A., 85 Fed. 4; Ung Lung Chung v. Holmes, 98 Fed. 323; TennentStribling Shoe Co. v. Roper, 94 Fed. 739; Scott v. Donald, 165 U. S. 58, 41 L. ed. 632; Von Schroeder v. Brittan, 93 Fed. 9; infra, §§ 7, 23. 46 Harley v. Firemen's Fund Ins. Co., 245 Fed. 471.

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47 Kirby v. Am. Soda & Fountain Co., 194 U. S. 141, 48 L. ed. 911.

48 Anderson V. Western Union Tel. Co., 218 Fed. 78; Central Commercial Co. v. Jones-Dusenbury Co., C. C. A., 251 Fed. 13.

49 Butchers' & Drovers' StockYards Co. v. Louisville & N. R. Co., C. C. A., 67 Fed. 35; Butters v. Carney, 127 Fed. 622. But see Greene v. Tacoma, 53 Fed. 562. 50 Cf. infra, § 22.

51 Butchers' & D. Stock Y. Co. v. Louisville & N. R. Co., C. C. A., 67 Fed. 35. See Pine v. New York, 103 Fed. 337; §§ 125, 293. But see Greene v. Tacoma, 53 Fed. 562.

eral, or a specific, denial; 52 and, if it appears on the trial, by the testimony of the plaintiff and his witnesses, that the amount as alleged in the complaint exceeded his reasonable expectation of recovery; the action should be dismissed.53 It has been held that the statutes and rulings of the courts of the State are not conclusive upon the question whether a suit involves the jurisdictional amount.54

§ 7. Value of the matter in dispute in action for damages. Where the suit is brought upon a contract in which the law liquidates the damages for a default, the amount of the damages as liquidated by the law, not the amount named in the plaintiff's pleading, is the value of the matter in dispute; 1 but where the alleged cause of action is one in which the law does not liquidate the damages, the amount for which the plaintiff demands judgment is alone to be considered; 2 unless it clearly appears that the amount named is merely colorable and beyond a reasonable expectation of recovery.3 Where there is room for

52 Greene v. Tacoma, 53 Fed. 562. 53 Holden v. Utah & M. Machinery Co., 82 Fed. 209.

54 Heffner V. Gwynne-Treadwell Cotton Co., C. C. A., 160 Fed. 635.

§ 7. 1 Wilson v. Daniel, 3 Dallas 401, 407, 1 L. ed. 655, 657; Barry v. Edmonds, 116 U. S. 550, 560, 29 L. ed. 729, 732, Vance v. W. A. Vandercook Co., 170 U. S. 468, 42 L. ed. 1111; North Am. T. & T. Co. v. Morrison, 178 U. S. 262, 44 L. ed. 1061; Battle v. Atkinson, 191 U. S. 559, 48 L. ed. 302, 24 S. Ct. 845, affirming 115 Fed. 384; Cabot v. McMaster, 61 Fed. 129; Central Commercial Co. v. Jones-Dusenbury Co., C. C. A., 251 Fed. 13.

See Remsen v. C. F. Blanke Tea & Coffee Co., 189 Fed. 418. Where the contract provided for liquidated damages it was held that the jurisdictional amount was limited to that sum. Phillips v. Troutman, 197 Fed. 325.

2 Wilson v. Daniel, 3 Dall. 401,

41, 1 L. ed. 655, 657; Smith v. Greenhow, 109 U. S. 669, 27 L. ed. 1080; Barry v. Edmonds, 116 U. S. 550, 560, 29 L. ed. 729, 732; Gorman v. Havird, 141 U. S. 206, 35 L. ed. 717; Judson v. Macon Coun ty, Fed. Cas. No. 7,568 (2 Dill. 213); Stanley v. Albany County Sup'rs 15 Fed. 483; Eisele v. Od. die, 128 Fed. 941; Southern Cash Reg. Co. v. National Cash Reg. Co., 143 Fed. 659; s. c., 143 Fed. 700; O. J. Lewis Mercantile Co. v. Klepner, C. C. A., 176 Fed. 343; Federal Wall Paper Co. v. Kampner, 244 Fed. 240.

3 Lee v. Watson, 1 Wall. 337; 17 L. ed. 557; Bowman v. Chicago & N. W. Ry. Co., 115 U. S. 611, 616, 29 L. ed. 502, 504; Smith v. Greenhow, 109 U. S. 669, 27 L. ed. 1080; Mayor, etc., of Balitmore v. Postal Tel. C. Co., 62 Fed. 500; Bank of Arapahoe v. David Bradley & Co., 72 Fed. 867; Shields v. McCandlish, 73 Fed. 318; Hampton

different theories as to the measure of damages, the plaintiff may not be required to limit himself to one of them; but if he does so limit himself the theory selected is the criterion of the value of the matter in dispute. It has been said that where the complaint contains the requisite allegation, the jurisdiction is not defeated because other matters therein stated have a tendency to show that such allegation is not well founded, unless they are such as to create a legal certainty of that conclusion.5 Should the latter fact appear, for the first time, upon the trial, it seems that the court would then be justified in dismissing the case at the end of the plaintiff's evidence."

In an action for debt upon a bond, or a contract for the payment of money," the principal and interest alone are in dispute; and no more can be recovered, except costs, although the plaintiff lays his damages at a much larger amount. The value of the matter in dispute cannot, therefore, exceed the principal, with interest and costs, even though the defendants pleading admits that it is in excess of the jurisdictional amount.9

In an action for railroad extortion, under a statute providing that the injured party might recover the amount of damages sustained by the overcharge or discrimination, where the declaration specified the overcharges claimed, alleged that the amount of the recovery on that count should be a sum less than the jurisdictional amount, and further averred. that the plaintiff had been damaged in a sum in excess of the jurisdictional amount by reason of the railway company's refusal to pay the damages first alleged; it was held, that the Federal court could not have jurisdiction.10 In a suit for damages for a breach of a contract to transport a passenger, it was held, that

Stave Co. v. Gardner, C. C. A., 154
Fed. 805; Fuerst Bros. & Co. v.
Polasky, C. C. A., 240 Fed. 447 (an
action for breach of warranty).
4 Armstrong v. Walters, 219 Fed.
320.

5 Henry & Sons & Co. v. Colorado Farm & Live Stock Co., C. C. A., 164 Fed. 986.

6 Maxwell v. A. T. & S. F. Ry. Co., 34 Fed. 286, 290; Cabot v. MeMaster, 61 Fed. 129; Holden v.

Utah S. & M. M. Co., 82 Fed. 209. For what is sufficient evidence of good faith, see Peeler v. Lathrop, 84 Fed. 780; infra, § 363.

7 Wilson v. Daniel, 3 Dallas 401, 407, 1 L. ed. 655, 657.

8 Wilson v. Daniel, 3 Dallas 401, 407, 1 L. ed. 655, 657.

9 Royal Ins. Co. of Liverpool, Eng. v. Stoddard, C. C. A., 201 Fed. 915. 10 Barataria Canning Co. v. Louisville & N. R. Co., 143 Fed. 113.

damages claimed for loss of business and employment, which, it was alleged that the plaintiff could have obtained if the contract had been performed, were too remote and must be excluded from consideration in the estimate of the jurisdictional amount.11 Upon a complaint alleging that plaintiff employed defendant to locate him on a half section of government land, which he entered under the homestead and timber acts, for which service he paid defendant $200, and seeking to recover damages for false and fraudulent representations as to the quantity and quality of timber on such land; it was held, that it did not state a cause of action for the recovery of damages, beyond the amount paid defendant, if there could be any recovery, and that the action was not within the jurisdiction of a Federal court, although the damages were laid in a sum exceeding the jurisdictional amount.12 An action. was brought by a city in a State court, to recover a tax of $2 for each of 509 telegraph poles maintained in the streets; but the declaration concluded: "And plaintiff claims $10,000." It was held, that the actual amount in dispute was but the amount of the tax, $1,018, and that the Federal Court could not take jurisdiction by removal.13 The law of Arkansas having limited plaintiff's recovery, in an action of unlawful detainer, to the rent due at the commencement of the suit and up to the time of rendering judgment, or the value of the occupation during the time of the unlawful detention of the premises, with damages for withholding the same; it was held, that a Federal court, in that State, did not have jurisdiction of such an action, when the complaint alleged that the amount due was the rent for nine months at $25 per month,1 14 although damages were also claimed in a sum exceeding the jurisdictional amount, without showing that plaintiff was entitled to anything but actual damages.15 A cause is not removable, when the prayer for relief asks for "$3,000 and all other proper relief;" if, under the pleadings, no other relief can be granted.16

11 North American Transportation & Trading Co. v. Morrison, 178 U. S. 262, 44 L. ed. 1061.

12 Wines v. Cobb Real Estate Co., 128 Fed. 198.

13 Baltimore v. Postal Tel. Cable Co., 62 Fed. 500.

14 Sand. & H. Digest, 670, § 3458. 15 Battle v. Atkinson, 115 Fed. 384; aff'd 191 U. S. 559, 48 L. ed. 302.

16 Baltimore & O. R. Co. v. Worman, 12 Ind. (App.), 494, 40 N. E. 751.

Where the State practice allows no greater damage than that prayed, the value of the matter in dispute will be considered to be no more than the amount stated in the plaintiff's prayer for relief, although the body of the complaint contains allegations showing greater damages.17 In a suit for the conversion of property, upon which plaintiff claimed liens, where the several liens were specifically set forth, and aggregated less than the jurisdictional amount; it was held: that a Circuit Court of the United States was without jurisdiction, although the damages claimed were the amount of a previous judgment establishing the liens against the original debtor for a sum, including interest and other expenses, exceeding such claims to which judgment the defendants, who had subsequently acquired the property, were not parties.18

19

In an action for the denial of the right to vote; or for false imprisonment; 20 or for assault and battery; or in any other case in which exemplary damages may properly be awarded, the law prescribes no limitation to the amount that can be recovered, and the amount claimed by the plaintiff is the sole criterion to which resort can be had in settling the question of jurisdiction.21

In an action against attorneys for negligence in failing to defend an action; it was held that in the absence of allegations showing that a successful defense might have been interposed, the recovery could not be more than nominal and the jurisdictional amount was consequently not involved.22 In an action for damages because of the circulation of a mutilated map with plaintiff's name, where the complaint did not show special damage, it was held that no more than nominal damages could be recovered and that the jurisdictional amount was not involved.23 In an action for damages resulting from the death of plaintiff's

17 Simmons V. Mutual Reserve Fund Life Ass'n, 114 Fed. 785; Swann V. Mutual Reserve Fund Life Ass'n, 116 Fed. 232; Barber v. Boston & M. R. Co., 145 Fed. 52. 18 Bergman v. Inman, Poulsen & Co., 91 Fed. 293.

19 Wiley v. Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. ed. 84.

20 Hynes v. Briggs, 41 Fed. 468.

21 Wilson v. Daniel, 3 Dallas 401, 407, 1 L. ed. 655, 657; Barry v. Edmunds, 116 U. S. 550, 560, 29 L. ed. 729, 732.

22 Maryland Casualty Co. v. Price, C. C. A., 231 Fed. 397, affirming 224 Fed. 271.

23 Ohman v. 168 Fed. 953.

City of New York,

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