Concerning the proposition maintained by plaintiffs, that they should have had notice of the application of defendant for a transfer of the cause, I would say there is nothing in the statute which requires this. Again I would refer to the ruling upon the analogous statute for the removal of causes from the state to the United States courts. In the case of Fisk v. Railroad Co., 8 Blatchf. 247, Justice NELSON says:

"The learned counsel for the plaintiff seems to suppose that the solicitor is entitled to notice of the time and place of the presenting of the petition. But this is an error. The act provides no such practice, and it is otherwise under all the previous statutes providing for removals."

As no order is required of the state court for the transfer of a cause, and as its action in the matter does not affect the transfer in any way, there can be no object in requiring a notice of the application or written request for the transfer. There can be no hearing upon this request.

This brings me to the consideration of the important point as to whether this is a case of which the circuit court would have had jurisdiction had it existed when the suit was commenced. The petition alleges that at the time this suit was instituted plaintiffs all were, and still are, citizens of the state of Montana, and that defendant was, and still is, a citizen of the state of Minnesota. A court is not obliged to believe an impossibility, even if presented to it in a sworn petition. This suit was instituted, according to the files in the case, on the 14th day of May, 1887. At that time Montana was not one of the states in the national Union. It was a territory of the United States. It has been repeatedly held that, when the jurisdiction of a United States court depends upon the fact of citizenship, the fact that one of the parties is a citizen of a state, and the other of a territory, will not give such courts jurisdiction. Corporation of New Orleans v. Winter, 1 Wheat. 91; Barney v. Baltimore City, 6 Wall. 287. If the plaintiffs resided within what are now the boundaries of the state of Montana when this suit was commenced, they were, properly speaking, perhaps, citizens of the United States residing in the territory of Montana. If they were citizens of any state, it does not appear. Certain it is they were not then citizens of the state of Montana. This court has acquired no jurisdiction by reason of the citizenship of the parties at the time the suit was commenced. As to whether this court would have jurisdiction of this cause by reason of the present citizenship of the parties, I am not called upon to decide. It may be that enough is stated in the petition, as far as citizenship is concerned, to warrant a removal under the general statute providing for the removal of causes from the state to the United States courts. Whether that statute applies, I am not now prepared to say. But the defendant has not filed in this case the bond required under that statute as a condition of removal, and the request for removal was evidently not based upon that statute. As to this suit, I am clearly of the opinion that it is one which arises under the laws of the United States. It is a suit instituted in pursuance to the provisions of section 2326 of the Revised Statutes of the United States. See Frank G. & S. M. Co. v. Larim M. & S. Co., 8 Fed. Rep. 724. One of the objects of such an action is

to determine who is entitled to a patent to the premises in dispute. The judgment is filed in the United States land-office on the determination of the action. To some extent the United States is a party to the action. See Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. Rep. 301. This decision must be based upon the theory, it appears to me, that the action, pursuant to an adverse claim, has for one of its objects the determination as to whether either party has divested the United States of the possessory title to the premises in dispute. The case of Trafton v. Nougues, 4 Sawy. 178, is not in point. That was not an action in pursuance to the provisions of section 2326, Rev. St. U. S. There is, however, a more serious objection to the jurisdiction of this court presented. In a case such as this, the amount involved must exceed $500, and perhaps $2,000. The petition states that the property in dispute is worth over $5,000. This must be taken as an estimate of the value of the property at the date of the verification of the petition, and not at the date when the suit was commenced.

It should appear in the record somewhere that the value of the property in controversy was sufficient to give the circuit court jurisdiction at the time suit was instituted. At the time the suit was instituted, the cirouit court had jurisdiction of causes in which the amount in controversy exceeded $500. Whether the circuit court can now take jurisdiction unless the property exceeds in value the $2,000, in cases like this coming from a territorial court, it is not necessary to determine. But it must be decided whether, at the time this suit was commenced, the circuit court of the United States for the district of Montana would, had it been in existence, have had jurisdiction of this cause. That it would have had such jurisdiction must appear affirmatively in the record. In the case of Water Co. v. Keyes, 96 U. S. 199, the supreme court, speaking through Chief Justice WAITE, says:

"It is well settled that in the courts of the United States the special facts necessary for jurisdiction must in some form appear in the record of every suit, and that the right of removal from the state court to the United States courts is statutory. A suit commenced in a state court must remain there until cause is shown, under some act of congress, for its transfer. The rec- . ord of the state court, which includes the petition for removal, should be in such a condition when the removal takes place as to show jurisdiction in the court in which it goes. If it is not, and the omission is not afterwards supplied, the suit must be remanded."

The fact that the prop

The above remarks are applicable to this case. erty in dispute may be worth over $5,000 on the 4th day of February, 1890, would not show that the property was worth that amount in 1887, when the action was commenced. The value of mining property fluctuates as much or more than any other kind of property. Hence the statement in the petition of the value of the property in dispute is not sufficient to show that this court, had it existed at the time the suit was commenced, would have had jurisdiction of this cause. For this reason, this cause must be remanded to the state court, and it is so ordered.

UNITED STATES v. LYNDE et al.

(Circuit Court, D. Montana. June 30, 1890.)

FEDERAL COURTS-ADMISSION OF NEW STATES-TRANSFERS FROM TERRITORIAL COURTS -CASE PENDING ON APPEAL.

Act. Cong. Feb. 22, 1889, admitting Montana as a state, provided that the United States circuit and district courts established by that act should be the successors of the supreme and district courts of the territory in respect of all cases then pending in the territorial courts of which such federal courts would have had jurisdiction had they been in existence. Section 23 further provides that "no writ, action, indictment, cause, or proceeding now pending, or that prior to the admission" of Montana "shall be pending, in any territorial court, shall abate by the admission of such state into the Union, but the same shall be transferred and proceeded with " in the proper federal court. Held, that the circuit court has jurisdiction to review such a case, which was pending on appeal in the territorial supreme court when the act was passed.

At Law. On motion to dismiss appeal.

Elbert D. Weed, U. S. Atty.

Luce & Luce, for defendants.

KNOWLES, J. This action was pending in the supreme court, of Montana, on appeal from the district court of Gallatin county, when Montana became a state in the Union. The act of congress approved February 22, 1889, (see U. S. St. at Large, 1888-89, p. 683,) providing for the admission of Montana and certain other territories into the Union, contains the following provision:

"That in respect to all cases, proceedings, and matters now pending in the supreme or district courts of either of the territories mentioned in this act at the time of the admission into the Union of either of the states mentioned in this act, and arising within the limits of any such state, whereof the circuit or district courts by this act established might have had jurisdiction, under the laws of the United States, had such courts existed at the time of the commencement of such cause, the said circuit and district court, respectively, shall be the successors of said supreme and district courts of said territory.'

The United States is the party plaintiff, and the amount involved, according the allegations of the complaint, is $106,000. This court, had it existed at the time this suit was brought, would have had jurisdiction of the same. St. March 3, 1887, c. 373, § 1, (24 St. 552,) as corrected by St. Aug. 13, 1888, (25 St. 434.)

The defendants move to dismiss the appeal in this cause because this court has no jurisdiction to hear the appeal pending in the supreme court of Montana territory at the date Montana became a state in the Union. The above statute, relating to the admission of Montana and other states into the Union, also provides, in said section 23:

"And all the files, records, indictments, and proceedings relating to any such cases shall be transferred to such circuit, district, and state courts, respectively, and the same shall be proceeded with therein in due course of law; but no writ, action, indictment, cause, or proceeding now pending, or that prior to the admission of any of the states mentioned in this act shall be pending, in any territorial court in any of the territories mentioned in this act, shall abate by the admission of any such state into the Union, but the same

shall be transferred and proceeded with in the proper United States circuit, district, or state court, as the case may be."

Previous to this clause in said section 23, it had been provided what should be the disposition of all cases of which the United States circuit and district courts would not have had jurisdiction had they existed at the time the same were commenced. It is provided, it will be seen, that these cases are to be proceeded with "in due course of law;" that they are not to "abate," but are to "be transferred and proceeded with" in the proper court; that is, the court having jurisdiction of the same. There can be no doubt but that congress intended that these causes should be taken up as they were, and tried by the court having jurisdiction of the same. The same question as is here presented, and under a statute the same in terms, arose in the circuit court of the United States for the district of Colorado, in the case of Bates v. Payson, 4 Dill. 265. In deciding the same, MILLER, the circuit justice, said:

"It is admitted that the case was one which might have been brought in a federal court, if such court had existed at the date of the commencement of the suit, as such was within the eighth section of the act. By that section this court is declared to be the successor of the supreme court of the territory as to all such cases, with power to proceed therein in due course of law.' This means that this court may do all that was left undone by the supreme court of the territory. The cause was pending in that court for review, and we may proceed as that court would have proceeded if it had retained the case. The way in which, under the territorial statute, the cause was taken to the supreme court is not material to be considered. The act of congress applies to all cases of a federal character pending in that court at the date of the admission of the state, and it matters not whether they were removed into that court by writ of error or appeal. If it were necessary to remand the cause to the state court, there would be a difficulty in disposing of it, but that was not required. Whether the judgment should be affirmed or reversed, we could enter the proper judgment here, and, if necessary, we could try the case again in this court.

The interpretion of a statute almost word for word by one of such acknowledged ability and eminence has controlling weight with this court, and the interpretation given to that statute pertaining to Colorado will be adopted as the interpretation of the statute under consideration which pertains to Montana.

The motion to dismiss the appeal in this cause is overruled.

In re ALLIS.

(Circuit Court, E. D. Wisconsin. December 13, 1890.)

DEPOSITIONS-ORAL INTERROGATORIES-PRACTICE.

Equity rule 67 provides that testimony may be taken under commission upon oral interrogatories, if the party desires it, and that "the examiner shall note all objections to questions, but shall not have the power of decision thereon; but the court shall have the power to deal with the costs of all incompetent, immaterial, or irrelevant depositions," etc.; and that, "in case of refusal of witnesses to attend, to be sworn, or to answer any question, * the same practice shall be adopted as

is now practiced with respect to witnesses to be produced on examination before an examiner of said court, on written interrogatories." Rev. St. U. S. §§ 863, 868, give the judge of the court of the district in which a witness resides power to compel his attendance and testimony de bene esse, or on a commission with written interrogatories. Held that, where the testimony of a witness is taken by consent on oral interrogatories before an examiner of the court of the district of his residence, for use in an action pending in another court, the former court has power to decide as to the materiality of questions asked, and may compel the witness to

JENKINS, J. The Consolidated Roller Mill Company filed its bill in equity in the circuit court of the United States for the district of Minnesota against the Wilford & Northway Manufacturing Company, to restrain the alleged infringement by the defendant of letters patent of the United States No. 222,895, issued to William D. Gray for a new and useful improvement in roller grinding mills. After issue joined, the testimony of William W. Allis, a resident of this district, and the secretary of the complainant, was taken by consent at his place of residence, upon oral interrogatories, and before an examiner of this court. Upon the cross-examination of the witness, and under advice and request of counsel for the complainant company, he declined to produce certain documents and to answer a certain question; whereupon the defendant moves for an order compelling the production of the required instruments, and requiring the witness to answer the interrogatory. It is objected, in opposition to the motion, that the propriety of the production of the document demanded, and the relevancy of the interrogatory propounded, can only be determined by the court in which the action is depending, and, until so determined, no jurisdiction is lodged with this court to act in the premises. With respect to actions at law, the practice is determined by the statutes. The testimony of a witness by deposition de bene esse may be compelled by the court of the district in which the witness. resides, and where the deposition is to be taken. Rev. St. § 863. In such case the court or judge invoked to compel answer determines the materiality of the interrogatory, so far, at least, as involved in the exercise of the power of compulsion. Ex parte Peck, 3 Blatchf. 113; Ex parte Judson, Id. 148. Under a commission with written interrogatories the attendance and testimony of the witness may be compelled by the judge of the court of the district in which the witness resides. Rev. St. § 868. In such case, the interrogatories having been settled and their materiality determined prior to the issuance, and by the court issuing the commission, possibly no occasion arises for a ruling by the judge of the court of the district in which the commission is executed as to their materiality; but I apprehend that, upon application to compel answer, he would have the power to determine as well the sufficiency of the answer, as the privilege of the witness to decline to answer. That is an incident to the power to compel answer, necessary to be exercised to determine the alleged contumacy of the witness.