Page:Federal Reporter, 1st Series, Volume 5.djvu/398

886 FEDEBAIi BEPOBTBB. �ion in Insurance Co. v.Pechner, 95 U. S. 183, but was left unde- termined, as that case only involved a construction of the act of 1789. The case would be truly exceptional in whioh I could ever differ from the learned and able judge who decided Rmoh V. Phelps, without hesitationv But, upon the present ques- tion, I am ôbnstrairied to tàke a different view of the statutc from that which he has adopted. �It must be admitted that the question is not free from dif- ficulty, but I anl unable io avoid the conclusion that by the lan- guage used in sections 2, 3,, and 5 of the act of 1875, it was intended to give to parties the right of removal in case the requisite citizenship existed at the time of the application for removal. ■ This seems to me to be the most reasonable con- struction of the statute, and the weight of authority appears to sustain that view. Putting the second section of the act into grammatical form, it provides that [if in] any suit of a civil np,ture, at law or in equity, noiv pending, or hereafter brought in any state court, where the matter in dispute ex- ceeds, exclusive of costs, the sum of $500, there shall be a controversy between citizens of different states, either party may remove said suit into the circuit court of the United States for the proper district. It appears, therefore, that the act was intended to ap^ily to ail causes pending at the time the act was paased, withopt reference to the fact whether the federal court would bave had jurisdiction at the time the suit was commenced in the state court or not. If that is the true rule as to causes pending at the time of the passage of the act, the inference seems very strong that it is applicable to causes thereafter brought in the state court. And it is not to be overlooked that the whole language of the act of 1875, in this respect, is very different. from that of the act of 1789. By the terms of that act the right to remove a cause was dependent upon the existence of the requisite citizenship when the suit was commenced. There is no language to that effect in the act of 1875, and the argument, from the fact that the words used in the act of 1789 bave been dropped in the act of 1875, seems very strong in favor of this view of the question, and such view also acquires additional force from ����