from further liability cannot be given an allowance for counsel fees out of the fund when it is insufficient to pay the creditors of the principal.36 The fund is distributed pro rata among those whose claims are allowed, including the United States.37 It has been held that the government has no right to priority.38 The Act extends to a sub-contractor of a sub-contractor.39 Contracts for the construction of a ship are included with the statute.40 The liability of the sureties is not stricti juris.41 Creditors for cartage and towage of materials to the spot. where the work was performed for patterns and for making scaffolds are entitled to the benefit of the bond.42 A person, not a laborer or material man, injured by the negligence of a contractor has no remedy upon the bond, although he has a cause of action against the contractor.43 It has been held: that the United States may recover upon a bond given by a clerk in the Post Office the loss caused by his speculations to the owners of the stolen money as well as the loss to the Government; and that the Government holds the amount recovered in excess of its own loss in trust for the benefit of those thus injured.44 § 6. Value of the matter in dispute. In general. The value of the matter in dispute in suits brought in the District Courts of the United States or removed thereto, when the jurisdiction depends upon difference of citizenship, or because the case arises under the Constitution or laws of the United States or treaties made under their authority, must ordinarily exceed, "exclusive of interest and costs, the sum or value of three thousand dollars." The exceptions are stated in the preceding see 1 36 U. S. v. Heaton, C. C. A., 128 Fed. 414. 37 Am. Surety Co. v. Lawrenceville Cement Co., 96 Fed. 25; U. S. v. Am. Surety Co., 126 Fed. 811. 38 Ibid. U. S. v. Heaton, C. C. A., 128 Fed. 414. 39 U. S. ex rel. Hill V. Am. Surety Co., 200 U. S. 197; 26 Sup. Ct. 168; 50 L. ed. 437; Mankin v. U. S., 215 U. S. 533; 30 Sup. Ct. 174, 54 L. ed. 315. 40 Title Guaranty & Tr. Co. v. Crane Co., 219 U. S. 24, 31 Sup. 41 U. S. Ex rel. Hill v. Am. Surety Co., 200 U. S. 197, 26 Sup. Ct. 168, 50 L. ed. 437. 42 Title Guaranty & Trust Co. v. Crane Co., 219 U. S. 24, 34. 43 U. S., for the use of Carnegie Institute of Technology v. C. A. Riffle Co., 247 Fed. 374. 44 U. S. v. U. S. Fidelity & Guar anty Co., C. C. A., 247 Fed. 16. § 6. 1 Jud. Code, § 24, 36 St. at L. 1087. tion. This enlarges the former jurisdiction from two thousand to three thousand dollars. The statute does not apply to cases pending when it was passed. Whether it applies to causes of action that arose prior to February first, 1912, is a disputed question.4 The matter in dispute must be of such a nature as to be capable of being reduced to a pecuniary standard of value. Such is not the right to personal liberty. Consequently, an application for the writ of habeas corpus cannot be removed; 6 and the writ of habeas corpus cannot issue originally from a District Court of the United States, to determine the right to the custody of a child, or in any other case, when it is not authorized by statute.7 Nor the right to a divorce. It has been said: that in a suit for a divorce, where the plaintiff prays alimony charging, that the defendant is the owner of valuable real estate and property interests, and also receives a yearly income of not less than $10,000; it does not appear that the value of the matter in dispute exceeds the sum of $2,000, since it is uncertain what amount of alimony the court may allow, and the alimony is only an incident to the right to a divorce. The same rule has been applied, by a State court, upon an application to remove a suit to set aside a 2 Supra, § 5. 3 Jud. Code, § 299, 36 St. at L. 1087. 4 It has been held that it does not apply to causes of action that arose prior to February 1, 1912. Taylor v. Midland Valley R. Co., 197 Fed. 327. Contra Sloane v. Kramer Bros. & Co., 230 Fed. 727. 5 Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458. See also Snow v. U. S., 118 U. S. 346, 354, 30 L. ed. 207, 209; In re Burrus, 136 U. S. 586, 593, 597, 34 L. ed. 500, 503, 514; Perrine v. Slack, 164 U. S. 452, 454, 41 L. ed. 510, 511; Whitney v. Dick, 202 U. S. 132, 50 L. ed. 963; Ex parte Evert, 1 Bond, 197; In re Barry, 42 Fed. 113; Clifford v. Williams, 131 Fed. 100. Such is not the right to compel the Secretary of State to assert a claim by the petitioner against a foreign government. U. S. ex rel. Holzendorf v. Hay, 194 U. S. 373, 48 L. ed. 1025 (appellate jurisdiction). 6 Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458. 7 Clifford v. Williams, 131 Fed. 100. See In re Burrus, 136 U. S. 586, 593, 597, 34 L. ed. 500, 503, 514; Perrine v. Slack, 164 U. S. 452, 454, 41 L. ed. 510, 511; Ex parte Evert, 1 Bond, 197; In re Barry, 42 Fed. 113; also reported 136 U. S. 597, 34 L. ed. 514. 8 Johnson v. Johnson, 13 Fed, 193. The court might, however, take jurisdiction of a suit to enforce a decree awarding alimony. Barber v. Barber, 21 How. 582, 16 L. ed. 226. 9 Bowman v. Bowman, 30 Fed. 849. decree of divorce.10 It has been held that, for a similar reason, a suit by a stockholder to compel the corporation to permit him to inspect its books and records is not removable,11 but that the value of the right to appeal from the probate of a will is at least equal to the share of the appellant in case the decedent had died intestate.1 12 The value of the matter in dispute is not the amount of any contingent loss or damage which one of the parties may sustain by a decision against him; but the amount in dispute between the parties to the pending suit.18 Thus, the reason that, on account of its probative force, the judgment may operate as an estoppel in a subsequent proceeding; 14 or affect his rights against a stranger to the suit; 15 does not increase the value of the matter in dispute. In a suit by a State treasurer, to recover a balance of unpaid taxes, less than the jurisdictional amount, where the defense was, that the defendant had tendered, in payment of all the taxes assessed against him, coupons for more than the jurisdictional amount; it was held that the matter in dispute was the right to tender all those coupons; and that the case might be removed.16 Prospective damages, which can be recovered in the action, or which the bill is filed to prevent, should be considered in the estimate,17 when they are alleged with sufficient certainty.18 Where relief is prayed in the alternative, it seems that that which involves the larger amount is the test of the jurisdiction.19 In a suit for an accounting the jurisdictional amount : 10 Caswell v. Caswell, 120 Ill. 377, 11 N. E. 342. 11 Whitney v. Am. Shipbuilding Co., 197 Fed. 777. 12 Erwin v. Walsh, 27 Fed. 579. 13 Ross v. Prentiss, 3 How. 771, 772, 11 L. ed. 824; Elgin v. Marshall, 106 U. S. 579, 27 L. ed. 249; Bruce v. M. & K. R. Co., 117 U. S. 514. 14 Elgin v. Marshall, 106 U. S. 579, 27 L. ed. 249; Bruce v. M. & K. R. Co., 117 U. S. 514, 29 L. ed. 990; New England Mtg. Co. v. Gay, 145 U. S. 123, 36 L. ed. 646. (All these were cases of appellate juris diction.) Mayor, etc., of Balitmore v. Postal Tel. Cable Co., 62 Fed. 500. 15 Smith v. Adams, 130 U. S. 167, 32 L. ed. 895 (appellate jurisdiction). 16 Green v. Brooks, 28 Fed. 215. 17 Draper v. Skerrett, 116 Fed. 206; Southern Cash Register Co. v. Montgomery, 143 Fed. 700; infra, § 13. 18 Oregon R. & Nav. Co. v. Shell, 125 Fed. 979. 19 Shappirio v. Goldberg, 192 U. S. 232, 48 L. ed. 419 (appellate jurisdiction); Hayward v. Nordberg 20 but is the value of the fund of which an account is sought; where no persons not joined as parties are interested, such as creditors who are not parties to the suit, the amount in controversy does not exceed the aggregate of the amounts claimed by the different parties from each other.21 In a bill for discovery, the amount involved in the suit concerning which discovery is to be used is the test of the jurisdiction.22 Where the complaint or declaration contains several counts, or causes of action, in determining the value of the matter in dispute their aggregate amount is to be considered,23 unless it appears that each is founded upon the same state of facts,24 or that the plaintiff is not in fact the owner of all the claims upon which he sues, 25 or that they are improperly united; 26 but where after removal a demurrer to one of two causes of action was sustained and the remainder was for less than the jurisdictional amount, the case was remanded.27 Thus, where the complaint, in form, stated two causes of action, each for the failure to deliver a telegram, and each alleging Mfg. Co., 85 Fed. 4, 29 C. C. A. 438; 20 Rogers v. Lawton, 162 Fed. 203. 21 Mull v. Parrott Bros. Co., 218 Fed. 713 (partnership accounting); John W. Hood & Co. v. Board of School Directors, 210 Fed. 384. 22 Mutual Life Ins. Co. v. Painter, 220 Fed. 998. 23 Judson v. Macon County Fed. Cas. No. 7,568 (2 Dill. 213); Stanley v. Albany County Sup'rs, 15 Fed. 483; Hammond v. Cleaveland, 23 Fed. 1; Bernheim v. Birnbaum, 30 Fed. 885; Armstrong v. Ettlesohn, 36 Fed. 209; Chase v. Sheldon Roller-Mills Co., 56 Fed. 625; Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248, 19 U. S. App. 448; Weaver v. Norway Tack Co., 80 Fed. 700; Bergman V. Inman, Poulsen & Co., 91 Fed. 293; Davis v. Mills, 99 Fed. 39; Southern Cash Register Co. v. Montgomery, 143 Fed. 700. The State practice in this respect is not followed. Yates v. Whyel Coke Co., 221 Fed. 603. Heffner v. Gwynne-Treadwell Cotton Co., C. C. A., 160 Fed. 635; Spokane Valley Land & Water Co. v. Kootenai County, Idaho, 199 Fed. 481. Kaus v. Am. Surety Co., 199 Fed. 972, where the jurisdiction was sustained because of the joinder of two causes of action against the same surety, upon bonds given by separate saloon-keepers, under the Iowa Civil Damage Act. 24 Pooser v. Western Union Tel. Co., 137 Fed. 1001; Balitmore & O. R. Co. v. Ryan, 31 Ind. (App.) 597, 68 N. E. 923. 25 Woodside v. Beckham, 216 U. S. 117, 54 L. ed. 408. 26 Bucyrus Co. v. McArthur, 219 Fed. 266; Sloane v. Kramer Bros. & Co., 230 Fed. 727. 27 Jones v. Western Union Telegraph Co., 233 Fed. 301. damages in the sum of $1,900; the only difference being that in one it was alleged that the telegram was addressed to a woman, and in the other that it was addressed to her husband, it appearing that the telegram was the same, and that the plaintiff's counsel could not determine from the manuscript as to which of the two was the person to whom the telegram was addressed; it was held, that the cause could not be removed.28 Where the declaration contained three counts aggregating in excess of the jurisdictional amount; the first upon a contract for services at an agreed price, less than this; the second upon a quantum meruit for the same services, alleging their value at a sum in excess thereof; the third for goods sold, money lent "and a like sum of money due on a contract," such as that specified in the first, "and a like sum for commissions' in effecting the sales therein specified; it was held, that the court had jurisdiction.29 Under the former statute where the declaration contained a special count, on a fire insurance policy for $2,250, alleging a total loss, and concluding, to plaintiff's damage for $2,000, for the recovery of which, with just costs, plaintiff brings," and common counts in assumpsit for $2,000, each concluding as in the first; it was held, that the action could be removed.30 Where a complaint in each of three counts claimed for personal injuries "the sum of $1,900 damages," and in two other counts "the further sum of $1,900;" it was held, that the case could be removed, although the court felt morally certain that it was intended to claim damages for but one cause of action.31 It has been held: that, where it clearly appears that the different causes of action alleged, consists merely of the common counts, the value of the matter in dispute should be determined by the amounts named in the bill of particulars.32 It makes no difference if the claims have been assigned and no one of them is equal to the jurisdictional amount.33 28 Pooser v. Western Union Tel. Co., 137 Fed. 1001. 29 Hayward v. Nordberg Mfg. Co., C. C. A., 85 Fed. 4. 30 Platt v. Phoenix Assur. Co., 37 Fed. 730. 31 Thompson v. Southern Ry. Co. 116 Fed. 890. 32 Healy v. Prevost, Fed. Cas. No. 6,297. 33 Hammond V. Cleaveland, 23 Fed. 1; Bernheim v. Birnbaum, 30 Fed. 885, 887; Chase v. Sheldon Roller-Mills Co., 56 Fed. 625; Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248, 19 U. S. App. 448; Berg |