Where the value of the amount in dispute cannot be reckoned from the other allegations in the bill, the statement therein that it exceeds $3,000 exclusive of interest and costs will ordinarily be sufficient.34 "Upon a bill for an injunction, where the amount involved cannot be deduced from the facts alleged, a simple allegation that the right sought to be protected is of the value of more than $3,000, exclusive of interest and costs, will usually be held to be sufficient."' 35 The pleadings or the petition for removal must show that the value of the matter in dispute exceeded the jurisdictional amount,36 at the time the suit was brought.37 Where the complaint was silent, the allegation in the answer was held to be conclusive.38 An allegation, that the "amount in dispute" exceeds the jurisdictional amount, is not insufficient because it uses the word "amount" instead of "matter" in dispute.39 It has been held: that the court may, where the bill or declaration is defective in that respect, retain jurisdiction and permit an amendment, which shows the jurisdictional value of the matter in dispute.40 Where the plaintiff exaggerates the amount in dispute, the court may, on exception properly taken, try the question of jurisdiction separately, without a jury; and if the damages appear to have been purposely and fraudulently magnified, it may dismiss the case; but its decision is reviewable by the Supreme Court.41 man v. Inman, Poulsen & Co., 91 Fed. 293; Davis v. Mills, 99 Fed. 39; Brigham-Hopkins Co. v. Gross, 107 Fed. 769. But see Waite v. Santa Cruz, 184 U. S. 302, 46 L. ed. 552. 34 Maurel v. Smith, 220 Fed. 195 35 Texas & P. Ry. Co. v. Kuteman, C. C. A, 54 Fed. 547. See Hyde v. Victoria Land Co., 125 Fed. 970; Louisville & N. R. Co. v. Smith, C. C. A., 128 Fed. 1, 5; Southern Cash Register Co. v. National Cash Register Co., 143 Fed. 659; Spaulding v. Evenson, 149 Fed. 913. 36 Strasburger v. Beecher, 44 Fed. 209; Back v. Sierra N. C. M. Co., 46 Fed. 673; Harvey v. Raleigh & G. R. Co., 89 Fed. 115; Yellow A. M. & M. Co. v. Winchell, 95 Fed. 213. 37 Strasburger v. Beecher, 44 Fed. 209. 38 W. U. Tel. Co. v. White, 102 Fed. 705. 39 Blackburn v. Portland Gold Min. Co., 175 U. S. 571, 44 L. ed. 276. 40 Davis v. Kansas City, S. & M. R. Co., 32 Fed. 863; Johnston v. Trippe, 33 Fed. 530; Whalen V. Gordon, C. C. A., 95 Fed. 305. See Citizens' Bank v. Cannon, 164 U. S. 319, 41 L. ed. 451. 41 Globe Refining Co. v. Landa The mere fact that the plaintiff recovers less than the jurisdictional amount does not justify a dismissal or a remand.42 A Texas case suggests that a distinction should be drawn between cases where the full amount claimed in the complaint is not recovered because of the plaintiff's failure to prove his allegations of fact and those where he fails because his claim is unfounded in law. It was held that where a demurrer was sustained to one of several claims for damages joined in one complaint and the aggregate amount thereof was thus reduced below the jurisdictional amount, the case must be dismissed; 43 but it has been said that the reasonable view would indicate that, when such claim was inserted in the original petition in good faith, the amount involved was in controversy, and the court having taken jurisdiction should render judgment for the remainder of the claims.44 Where the plaintiff sued in good faith for a principal sum, in excess of the jurisdictional amount, and the defendant proved a set-off, the exact amount of which plaintiff did not know Cotton Oil Co., 190 U. S. 540, 47 L. In Hayne v. Woolley, 180 Fed. 573, which was an action for damages by trespass in allowing cattle to run at large upon the plaintiff's land during the fall and winter season, the court held that the damages could not amount to more than $200 or $300, saying: "The damage in this respect, if any, would be very slight. It is a matter of common knowledge that, in many instances, land is improved, rather than dam- 42 Peeler v. Lathrop, 48 Fed. 780, 1 C. C. A. 93, 2 U. S. App. 40; Washington County V. Williams, 111 Fed. 801, 49 C. C. A. 621. Put-in-Bay Waterworks &c. Co. v. Ryan, 181 U. S. 409, 45 L.ed. 927; Re Cleland, 218 U. S. 120, 54 L. ed. 962; Brent v. Chas. H. Lilly Co., 202 Fed. 335; Armstrong v. Walters, 223 Fed. 451; Garrett v. Mallard, C. C. A., 238 Fed. 335; Central Commercial Co. v. JonesDusenbury Co., C. C. A. 251 Fed. 13. 43 Western Union Tel. Co. v. Arnold (Texas, 1903) 77 S. W. 249; affirmed, 79 S. W. 8. 44 Columbia Law Review, March, 1904; citing Martin v. Goode, 111 N. C. 228, 32 Am. St. Rep. 799; Bank of Arapahoe v. David Bradley & Co., C. C. A., 72 Fed. 867. 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 disinissal 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.4 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. 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. Jonės-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. 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 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. |