Nathan Clifford

“ Courts are disinclined to adopt a construction of an act of Congress which would extend its operation beyond what is warranted by the Constitution, but the suggestion that Congress possesses the power to confer a new privilege is not a sufficient reason to induce the court to extend an existing enactment by construction so as to embrace the provilege, unless the words of the enactment are of a character to warrant the construction. ”

“ Real parties only are empowered to claim that right under either act, and it is equally clear that the right of the defendant cannot be defeated by joining with him a mere nominal party in the action. ”

“ Another clause provides that, 'the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.'
Does the jurisdiction cease to exist in a case because other questions are involved in it than those arising under the Constitution, laws, or treaties of the United States? ”

“ The word 'controversies,' as used in the Constitution, is a general term, broad enough to cover all branches and technical forms of litigation, being equivalent to 'suits or cases at law and in equity.' It cannot have any other meaning or force than as a designation of judicial proceedings, whether those proceedings be called suits, actions, petitions, or bills in equity. ”

“ When it is remembered that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people, it seems clear that the construction of the clause in question by the plaintiffs in error is erroneous. ”

“ There is a plaintiff and there is a defendant; and who the parties to that 'case' or to that 'suit' are, appears by a memorial kept in courts and known as the docket. But one party to the case or suit may have little or no interest in the controversy. A., a citizen of Pennsylvania, may sue B., another citizen of Pennsylvania, when B. is but a nominal defendant, and when the only person really interested as a defendant in the controversy is C., a citizen of New York, not a party to the 'case,' to the 'suit,' at all. ”

“ Under the statute of 1789, non-residents (if the only parties defendant) can now remove a case to the Federal tribunal, under the provisions of that act, without affidavit, and without the cause of local prejudice. If the statute of 1867 is also to be confined to the same class of cases (where all the defendants are non-residents) , then, as it requires cause and affidavit for removal, it is a restriction upon the right of removal as originally given by the statute of 1789; a result which is obviously absurd. ”

“ Viewed in the light of these suggestions it is clear that it is a mistake to suppose that the act will operate to limit the right conferred by the Judiciary Act unless the court give it the broad construction assumed by the defendants, as it extends the right to a non-resident plaintiff as well as to a non-resident defendant, and allows both to file the necessary petition at any time before the final hearing or trial of the suit, leaving the case of the alien defendant unaffected by any of its provisions. ”

“ Unaffected as the Judiciary Act is by the latest of the three acts mentioned, the law still is that if the suit is commenced against an alien in a State court, he may file a petition for the removal of the same for trial into the next Circuit Court to be held in the district, at the time of entering his appearance in such State court. Non-resident defendants or alien defendants may also remove certain causes from a State court into a Circuit Court for trial, under the intermediate act of Congress, as before explained. ”

“ Defendants in certain cases may sever, after final judgment, for the purpose of prosecuting an appeal or writ of error, which is effected by a proceeding usually called summons and severance, which will enable one of several defendants, or any number less than the whole, to sue out a writ of error or take an appeal in a case where the other defendants or respondents refuse to join in the petition for the same. ”

“ Each of the petitions was accompanied by an affidavit executed by the president of the company, and by a bond of the company in usual form as required by law in such a case. Hearing was had and the State court refused to grant the prayer of the respective petitions, and directed that the parties should proceed to trial, to which rulings the defendants then and there excepted, and the verdict and judgment were for the plaintiffs. ”

“ Service of the writ was made upon all the defendants, according to the laws of Massachusetts; upon the two foreign corporations by attachment of the property of each within the State, &c. The Massachusetts corporation which was thus sued appeared at the April Term, 1871, by counsel, and filed its answer, and at the April Term, 1872, the Connecticut and New York corporations did the same. ”

“ What the precise terms of the license are or were does not very satisfactorily appear, but it may be inferred that the plaintiffs covenanted to pay to the defendants a certain patent rent or tariff for the use of the patent right, subject to be reduced in amount in case the defendants granted licenses to other parties at a lower rate, and the charge is that the defendants did grant licenses to others at a lower rate without making to the plaintiffs the stipulated reduction ”

“ Payments having been made the plaintiffs commenced this suit to recover back the amount. They joined as defendants the Grover & Baker Sewing Machine Company, which is a corporation established under the laws of Massachusetts; the Wheeler & Wilson Manufacturing Company, which is a corporation established under the laws of Connecticut; and the Singer Manufacturing Company, which is a corporation established under the laws of New York. ”