The definition of the class of cases intended | be given to all its provisions as written, resultto be embraced within this clause is given in the clause itself, without reference to, or limitation by, the provisions of the first section. The one class of cases to which the clause is applicable is that of suits wherein is involved a controversy between a citizen of the State wherein suit is brought, and a defendant, who is a citizen of another State. In such cases, if it is made to appear that owing to prejudice or local influence the defendant, who is sued out of the State of which he is a citizen, cannot obtain justice in the state courts, then such defendant may for this reason remove the suit at any time before final trial.

If, in a given case, it is made to appear that a citizen of a State has been sued in a State of which he is not a citizen, and that owing to prejudice and local influence he cannot obtain justice in the state court, upon what grounds can the right of removal be refused to such a defendant, if he applies for such removal before the final trial in the cause? If all the requirements in the fourth clause contained, are fully met, upon what theory can the court impose other conditions as prerequisites to granting the order of removal?

It will not do to assume that Congress intended to restrict the right of removal to such cases only as might have been brought originally in the United States Circuit Court under the provisions of the first section of the Act; for since the adoption of the Act of 1789 down to the date of the present statute, it has been and is the fact that jurisdiction by removal could be acquired by the circuit courts in cases which could not be originally brought in such courts. Green v. Custard, 64 U. S. 23 How. 484 [16 L. ed. 471]: Lexington v. Butler, 81 U. S. 14 Wall. 282 [20 L. ed. 809]; Claflin v. Com, Ins. Co. 110 U. S. 81 [28 L. ed. 76].

ing in a conclusion in harmony with the previous legislation upon the general subject, why resort to a rule of construction which requires the addition to a specific clause of the statute of provisions carefully repeated in other clauses, but omitted in the fourth clause? We have no ground for inferring that such omission was accidental or not intentional; and certainly if Congress intentionally omitted, in the fourth clause, all reference to the preceding section of the Act, courts are not justified in holding that such reference was nevertheless intended, and that the clause of the Act must be construed as though it contained that which Congress had carefully excluded therefrom.

Comparing the structural form of the Act of 1875 with that of the Act of 1888, there will be found a radical difference therein. In the former Act we find in both the first and second sections thereof a grouping together in one sentence in each section of the several classes of cases of which jurisdiction can be had, either originally or by removal, in the United States Circuit Courts under the terms of that Act.

In the Act of 1888, on the contrary, the several clauses of the second section are distinct sentences, and the form thereof clearly indicates that each is to be so read and construed. Each clause is intended to indicate, by its own terms, whether it is to be read in connection with any other section or clause of the Actor not.

The right of removal on the ground of prejudice was first conferred by the Act of 1867.

In the case of Johnson v. Monell, Woolworth, 390, Mr. Justice Miller, in construing this Act, held that the Act worked important changes in the law on this subject, and that in determining when a removal under it could be had, its provisions were not limited by the previous statutes.

It never, therefore, has been the policy of the legislation on this subject to make the In Gaines v. Fuentes, 92 U. S. 10 [23 L. ed. boundaries of jurisdiction by removal abso-524] it was held that the Act of 1867 "covered lutely coincident; and no support can be found, every possible case involving controversies bein past legislation, for the assumption that tween citizens of the State where the suit was Congress intended to restrict the right of re- brought and citizens of other States, if the matmoval in all cases to such controversies as ter in dispute, exclusive of costs, exceeded the might have been originally brought in the sum of $500. The only test was, Did it infederal courts. volve a controversy between citizens of the State and citizens of other States, and did the matter in dispute exceed a specified amount?"

In the case of Malone v. R. Co. supra, it is said that, construing all the clauses of the Act of 1887 together, it is clear that the limitation of amount applies to removals on the ground of prejudice or local influence. What is meant by this is that if we import into the fourth clause provisions not found therein, we can sustain the conclusion that to justify a removal on the ground of prejudice the cause must involve an amount exceeding $2,000.

Certainly if we construe the fourth clause by its own terms only, no such restriction can be found therein stated. Can we rightfully assume that it must have been the intent of Congress not to permit a removal of a cause for any reason unless it involved over $2,000, and then attempt to fit the language of the fourth clause to this assumed intent, by interpolating therein the provisions of other sections of the Act which are not referred to in the clause itself?

When the clause is susceptible of a reasonable construction as it stands, and full force can

There is nothing in the subsequent legislation on this subject that changes the rule of construction thus applied to the Act of 1867. The Act of 1875 did not deal with this particular class of cases. When, therefore, the Act of 1888 was adopted we are not justified in holding that the rule previously recognized was intended to be changed unless such is the fair and natural import of the language used in the Act.

So far from the terms of that Act indicating any such purpose it would seem as though Congress had carefully framed the Act so as to conform to the recognized construction of the previous statutes, and the only test now prescribed for determining whether the case belongs to the class that are removable on the ground of prejudice is, Does the suit involve a controversy between a citizen of the State wherein it is pending and a defendant who is a citizen of another State?

MAINE SUPREME JUDICIAL COURT.

landlord is not obliged to repair, in the absence | burden is upon him to show that the obligation of express agreement.

In such cases the rights and liabilities of the parties are the result of a contract between them. In the absence of an express contract, But, while these facts not only fail to furnish the law will imply such as shall be deemed any sufficient foundation for an implied covereasonable, under all the circumstances. In nant on the part of the plaintiff to make the this case there was an express contract as to necessary repairs upon the stairway, they are the tenancy; but that left the obligation to re- abundantly sufficient to sustain such a covepair to such as might be implied by law. nant on the part of the defendant. He was the owner of the tenements, and kept them for the purpose of profit. But to insure that, there must be some means of access to them. He preferred to make one passageway for all,

This was an invita- | onerate the landlord from responsibility for defects in it."

rather than one for each.
tion, an inducement for all who needed such
accommodation, to come and pass over this
passageway. It was a way provided for them
to pass over, precisely as a man provides a way
for his customers to get to his place of busi-
ness, and the same implied covenant to keep in
safe and convenient repair must exist as much
in one case as in the other.

Looney v. Mc Lean, 129 Mass. 33, is in every respect like the one under consideration and sustains the ruling.

In this State the same question does not appear to have arisen, but the cases tend the same way. Campbell v. Portland Sugar Co. supra, Toole v. Beckett, 67 Maine, 544, and cases cited.

In Bold v. O'Brien, 12 Daly (N. Y.) 160, it is held that a tenant of a part of a building is not bound to make general repairs. If the landlord fails to make them and the building falls, he is liable to the tenant.

But it is said that when a person has a right of way over the premises of another the presumption is that he is bound to repair at his own expense. This may be true when the way is held under a license, to be used by the licensee, for his own benefit exclusively. But such a way and one provided, as this was, as an inducement to obtain tenants for the tenements, or customers to the business of the person providing it, are two very different things. This distinction is clearly illustrated in Campbell v. Portland Sugar Co. 62 Maine, 552, 561. See also Stratton v. Staples, 59 Maine, 94. Thus it is evident that the ruling in questionable to find, we do not think them sufficient to rests upon sound principle.

We are of the opinion that, though there may be some conflict in the decisions, real or apparent, the preponderance of authority will bring us to the same result. In Massachusetts the question seems to have been clearly settled in accordance with the ruling. The same principle runs through all the cases-that the obligation to repair, in the absence of any express agreement, depends upon the right of possession-and that an appurtenant attached to and made for the accommodation of several different tenements, leased to different tenants, remains in the possession of the lessor, though the use of it goes to the lessees.

Milford v. Holbrook, 9 Allen, 17, was the case of an awning made for and attached to a block containing three shops leased to different tenants. It was held that though all had the use of the awning, yet the possession remained in the landlord, and he was held liable for any defects in it.

Elliott v. Pray, 10 Allen, 378, is in point, showing that under similar circumstances the landlord and not the tenant is bound to keep the passageway in repair.

In Shipley v. Fifty Associates, 101 Mass. 251, the whole building was leased to different persons in tenements, under leases requiring the tenants to make repairs; and yet it was held that the possession of the roof, however necessary to all, was not conveyed to any one of the tenants, nor to all jointly, and was therefore left in the owners, who were liable for new repairs.

Readman v. Conway, 126 Mass. 374, in principle is not distinguishable from the one at bar. Three tenements, with a platform in front for the benefit of all, were leased to different persons. In the opinion it is said:

In Donohue v. Kendall, 50 N. Y. Sup. Ct. (18 Jones & S.) 386, it is held that the owner of a tenement house owes to his tenants of apartments therein, and to strangers rightfully on the premises, the duty of keeping the stairways and hallways in repair.

So far as our attention has been called to other cases in defense, or any we have been

overcome the authority of those above cited, and others similar. Some of them rest upon temporary obstructions or, as in Purcell v. English, 86 Ind. 34, and Woods v. Naumkeag Steam Cotton Company, 134 Mass. 357, where the obstructions were accumulations of ice and

snow.

We see no reason to complain of these and such like decisions. They are not founded upon a defect in the thing itself, and so are not in conflict with our decision in the case at bar. Nor do we intend to decide that the landlord is liable for any fault of the tenant; nor is it a necessary inference that he would be holden for a defect in the construction of the stairway, or existing before the lease.

It might be that in the case of a tenant, in the absence of hidden defects, he would be bound by the condition of the stairway, the time of the lease, and bound to keep it clear from the accumulation of temporary obstructions arising from use or from natural causes, as ice and snow, leaving the landlord liable for repairs made necessary by the ordinary use or decay. These several questions do not arise in this case, and we give no opinion upon them. An examination of the cases upon this subject will show, we think, that much of the apparent conflict in them arises from the fact that different questions are involved. Exceptions overruled.

Peters, Ch. J., Walton and Emery, JJ., concurred. Virgin and Haskell, JJ., concurred in the result.

Henry KINGSBURY.

v.

Charles P. MATTOCKS.
(81 Maine, 310.)

An assignment in bankruptcy, prior to the
Act of Congress of June 5, 1882, re-establishing
NOTE.-The Geneva Award; claims against foreign
governments pass to assignées.

"If the lease to each tenant was of the shop occupied by him, and the landlords had constructed the platform for the common use and benefit of all the shops and the public, there would be no presumption, in the absence of any agreement to that effect, that the tenants were to keep the platform in repair. Neither tenant acquired any exclusive right to use or On a claim against a foreign government for control the part in front of his shop, and there spoliation, the demand is founded on the Law of is no such leasing of the platform as would ex-Nations; and the obligation on the offending gov

the Court of Commissioners of Alabama Claims, | Rep. 498, 79 Maine, 234; Leonard v. Nye, 125 does not cover a claim allowed by such commis- Mass. 455; Grant v. Bodinell, 3 New Eng. sioners for war premiums paid by the bankrupt Rep. 247, 78 Maine, 460; Williamson v. Colcord, in 1863 on vessels insured against confederate 1 Hask. 621; Emerson v. Hall, 38 U. S. 13 Pet. cruisers; and where the assignee prosecuted and 409 (10 L. ed. 223); Dodge v. Adams, 19 Pick. collected such claim, he holds the proceeds in 429; Warren v. Whitney, 24 Maine, 561; Cook v. Bradley, 7 Conn. 57; Shep. Touch. 322, 328; 4 Kent, Com. 206; Burnand v. Rodocanachi, L. R. 6 Q. B. Div. 633; Erwin v. U. S. 97 U. S. 392 (24 L. ed. 1065).

trust for the bankrupt.

(February 18, 1889.)

Mr. C. P. Mattocks, defendant, in pro.

ON report from Supreme Judicial Court, per:

Cumberland County. Bill sustained. This suit was brought by plaintiff against his assignee in bankruptcy to recover the amount collected by the latter under an award of the Court of Commissioners of Alabama Claims for war premiums of insurance paid by plaintiff.

The case was reported for the opinion of the full court.

Further facts appear in the opinion. Mr. Clarence Hale for plaintiff. Money collected from war premiums does not pass to the assignee in bankruptcy in cases where the assignment in bankruptcy was previous to the Act of June 5, 1882.

Heard v. Sturgis, 6 New Eng. Rep. 210, 146 Mass. 545; Brooks v. Ahrens, 11 Cent. Rep. 126, 68 Md. 212; Taft v. Marsily, 47 Hun, 175. The payment of war premiums does not constitute such "rights of action for property or estate" as vest in the assignee under the language of the Act under which the complainant here filed his petition in bankruptcy.

See Comegys v. Vasse, 26 U. S. 1 Pet. 193 (7 L. ed. 108); Pierce v. Stidworthy, 4 New Eng. ernment is perfect. Emerson v. Hall, 38 U. S. 13 Pet. 409 (10 L. ed. 223).

Claims for unlawful seizure of property by a foreign government pass to the assignee. Clark v. Clark, 58 U. S. 17 How. 315 (15 L. ed. 77).

The assignee of a claim against a foreign government will be entitled to the money recovered thereon. Lewis v. Bell, 58 U. S. 17 How. 616 (15 L. ed. 203). A claim of a bankrupt against a foreign government passes to his assignee in bankruptcy. Phelps v. McDonald, 99 U. S. 298 (25 L. ed. 473); Clark v. Clark, supra.

A claim against the United States in favor of a British subject residing in this country passed to his assignee in bankruptcy, in proceedings under the laws of the United States. Phelps v. McDonald.

supra.

Claim for reimbursement of “war premiums.” The judgment of the Court of Commissioners of Alabama Claims has no effect as res judicata; and no right to reimbursement for "war premiums" existed and none passed by assignment to assignee. As claims against Great Britain for "war premiums" were rejected by the Geneva Tribunal, the Act of Congress providing for payment of the same, was a gratuity to which the doctrine of relation does not apply so as to give rights created thereby relation back to the date of bankruptcy. Brooks v. Ahrens, 11 Cent. Rep. 126, 68 Md. 212.

Claims for payment of premiums for war risks after the sailing of any confederate cruiser did not pass by assignment in bankruptcy made prior to the passage of the Act of Congress entitled "An Act Re-Establishing the Court of Commissioners of Alabama Claims." Heard v. Sturgis, 6 New Eng. Rep. 210, 146 Mass. 545.

So money paid by the United States to assignees

The sum received by the defendant from the United States Treasurer on account of enhanced insurance premiums paid by the bankrupt before the decree in bankruptcy, being in the nature of, and not distinguishable in principle from, indemnity for an unjust capture," passed by the assignment in bankruptcy to the defendant as a part of said bankrupt's estate.

Comegys v. Vasse, 26 U. S. 1 Pet. 193 (7 L. ed. 108).

This court has already decided that claims provable under the Act of June 5, 1882—which is the Act under which the sum in controversy was received-pass by the residuary clause in a will.

Grant v. Bodwell, 3 New Eng. Rep. 247, 78 Maine, 460; Pierce v. Stidworthy, 4 New Eng. Rep. 498, 79 Maine, 234.

And if such claims pass by will, they are clearly distinguishable from the claim considered in Emerson v. Hall, 38 U. S. 13 Pet. 409 (10 L. ed. 223), in which the sum in controversy was a mere gift or donation, and pass to the assignee in bankruptcy.

Leonard v. Nye, 125 Mass. 455.

| in bankruptcy, in pursuance of said Act of Congress passed after the assignment, on account of war premiums paid by the bankrupts, is recoverable by the bankrupts from the assignees. Ibid.

The surviving partner is entitled to recover the moneys received by them for "war premiums" paid, and that without recoupment for expenses and counsel fees. Brooks v. Ahrens, supra. Claims against indemnity fund in hands of govern

ment.

The provision made by the Act of Congress of 1882 is a mere gratuity. Gillan v. Gillan, 55 Pa. 430; Burnand v. Rodocanachi, L. R. 6 Q. B. Div. 633, L. R. 7 App. Cas. 333; Moore v. McDonald, 11 Cent.

Rep. 131, 68 Md. 321.

An indemnity claim for losses occasioned by a confederate cruiser, when established by statute, though a pure gratuity, is an absolute legal claim against the United States. Goreley v. Butler (Mass.) 6 New Eng. Rep. 300.

When the sovereign power has established a claim against a fund in its hands, and has provided a tribunal, and all necessary machinery, for its establishment and collection, such a claim is "property," within the meaning of the Insolvent Act (Pub. Stat. 157, §§ 44, 46). Ibid.

If the claim is established in pursuance of what would have been an antecedent legal duty on the part of the sovereign but for its sovereignty, it follows, a fortiori, from decisions like Leonard v. Nye, 125 Mass. 455; Jones v. Dexter, 125 Mass. 471; and Comegys v. Vasse, 26 U. S. 1 Pet. 212 (7 L. ed, 116), that some claims against the Sovereign will pass in bankruptcy or insolvency, although the Act which recognizes-makes them effectual-is not passed until after the assignment. Goreley v. Butler, supra.

Where the plaintiff had no notice of the proceed