Page:Federal Reporter, 1st Series, Volume 8.djvu/672

658 FEDERAIi EEPORTBR. �If a citizen had any general or common right to have hia case tried in the state court, and this statuts were in derogation of that right, there might be some elaim for a strict construction ; but it is not at all a common or preferred right or privilege, and the right of the other citizen with whom he litigates to have it tried in the federal court is entitled to the same consideration. Therefore, the idea that the proceeding of removal is in derogation of a right, or is extraor- dinary, in the sense of these rules of construction, and to be so strictly construed that everything is to be taken against it, is untenable. We are to construe it just as we do the statutes giving us original jurisdiction, or as the state courts do statutes regulating their ordi- nary jurisdiction. Indeed, it is original jvlrisdiction, and the only difference is in the mode of acquisition. Murray v. Patrie, 5 Blatohf . 343, 346. It is not appellate, nor supervisory, nor extraordinary, but peculiar; and the peouliarity is that the contending citizens use the process of the state courts to originate their litigation, and sub- sequently get their controversy into the federal court by removal, instead of going there directly, and either bas a right to do it. There are some oircumstances under which it is necessary to do this to ob- tain the benefit of statutory rights and remedies, that could not other- wise be conferred ; as, for example, where a simple contract crediter files a bill in this state to set aside a fraudulent conveyance, and thereby acquires a statutory lien he would not have, pethaps, if the same bill were filed in the federal court. T. & S. Code, (Tenn.) § 4288. �Undoubtedly, in the matter of regulating suits, whether commenoed here or brought bere after being commenced elsewhere, congress can prescribe such conditions precedent for the exercise of the jurisdiction as it chooses ; and if it bas said that, as an inexorable rule, we sball not proceed in this case unless the record is filed on the first day of the term, we must obey it. But the statute does not say so explic- itly, and it is pUrely a matter of construction. Being open for con- struction, the question is, sball it be construed strictly against the jurisdiction, or liberally in favor of it ? If it be a condition preced- ent, nothing can dispense with it, not even inevitable accident; and this seems to me an "absurd consequence," considering the^ nature of the case, and the character and purposes of the jurisdiction, as declared by the constitution, and shown by the history conneeted with its place in that instrument. Grammatical analysis of the third section does not disclose any intention to attach a forfeiture of the jurisdiction to a failure to file the record on the first day; nor does the seventh sec- ��� �