a contemporaneous event. To some extent this is covered by the hearsay exception for excited spontaneous utterances. Professor E. M. Morgan suggests an extension to spontaneous although not excited utterances asserting present sense impressions. I refer the reader to his exposition.

V

68

Because he fears disastrous extensions of the Hillmon principle, Mr. Seligman would like to see the case discredited and not followed. Yet even he might well concede that in its ordinary, workaday application the principle leads to more good than evil. All the debatable decisions discussed above are rarities. On the whole, it seems easier for litigants and lawyers to live and be happy in jurisdictions accepting the Hillmon view than in one, such as Illinois, rejecting it. Analytically, the principle appears much more safely boxed in than Mr. Seligman believed. The same assertion may be ventured on an empirical basis. Those two letters of Walters' might have been a dynamite charge at the base of the hearsay rule. But they were not. Even if we change our metaphor and speak of slow poison, does not the almost untroubled lapse of three-and-thirty years indicate that the pet evidential rule of the common law has Mithradatic capacity for resistance?

Yet Mutual Insurance Company v. Hillmon in its best and most innocuous state leaves us an unsatisfactory situation. One can hardly agree with Dean Thayer's statement that this judicial invention is a "simple" one. On the contrary its use and more particularly its limitation sometimes involve distinctions of a refinement better suited to the philosophical laboratory than to the hurly-burly of a jury trial. An evidential doctrine which may in hard cases become unintelligible certainly to laymen, probably to lawyers, and possibly now and then even to judges, is a doctrine crying aloud for clarification. The courts, limited—in Mr. Justice Holmes' famous phrase to molecular motion, have here done what they could to square the narrow traditional rules of evidence and the practical busi

68 Edmund M. Morgan, "A Suggested Classification of Utterances Admissible as Res Gestae," 31 YALE L. J. 229, 236-237.

ness necessity of getting ahead with the trial of causes. Their effort should neither be despised nor rejected. But it seems truly to have given us only a temporary expedient, by no means plain enough or comprehensive enough for our needs. The obscure elaborations of the Hillmon case prove for the hundredth time that we ought to have further intelligent legislation to clear the old deadwood from the evidential field."9

John MacArthur Maguire.

HARVARD LAW SCHOOL.

69 Suggestions for the reform of the hearsay rule are numerous. See THAYER, PRELIMINARY TREATISE, 518–523; I WIGMORE, EVIDENCE, 2 ed., § 8a, pp. 136 et seq.; Chief Justice J. B. Winslow of Wisconsin, "A Legislative Indictment of the Courts," 29 HARV. L. REV. 395, 399-400; E. R. Thayer, "Observations on the Law of Evidence," 13 MICH. L. REV. 355, 360 et seq. The Massachusetts statute admitting with certain restrictions declarations of fact made by persons since deceased is resorted to very frequently and satisfactorily. See 1921 MASS. GEN. LAWS, c. 233, § 65. See 3 WIGMORE, EVIDENCE, 2 ed., § 1576 (2), for a partial collection of the cases under this statute.

JURISDICTIONAL AMOUNT IN THE UNITED
STATES DISTRICT COURT

I. INTRODUCTORY

SECTION 24 of the Federal Judicial Code provides:

"The district courts shall have original jurisdiction as follows: First. Of all suits of a civil nature, at common law or in equity where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects."

1

2

Under (a) are included suits involving a construction of the United States Constitution or the laws of the United States. Under (b) fall all the so-called "diverse citizenship cases." " Thus class (a) includes those cases which, from a political or governmental standpoint, are the most important that come before the federal courts; while the cases under (b) make up the most numerous group of cases that these courts are called on to handle. Since both these groups require the jurisdictional amount before the district courts can take jurisdiction, this requisite must needs be of paramount practical importance.3

1 Under paragraphs 4-25 of this section are included various exceptional instances of cases arising under the federal laws in which the United States District Court takes jurisdiction without regard to the amount in controversy. Among the more important of these excepted cases (in which no jurisdictional amount is necessary) are suits arising under the laws providing for internal revenue, the postal laws, copyright and trade-mark laws, laws regulating commerce, laws concerning penalties and forfeitures, bankruptcy laws, laws regulating immigration, the contract labor laws, and the laws protecting trade and commerce against restraints and monopolies. By paragraphs 2 and 3 of Section 24, the jurisdictional amount has no application to the admiralty and criminal jurisdiction of the District Court. 2 Suits arising under (a) are quite frequently called "suits involving a federal question," while suits arising under (b) and (c) are referred to as diverse citizenship cases." Neither of these expressions, however, is used in either the United States Constitution or the federal statutes.

3 A search of the last ten bound volumes (291-300) of the Federal Reporter (covering a period of thirteen months - October, 1923, to November, 1924)

In some cases, the determination of the amount in controversy is exceedingly simple; in other cases, the problem is quite complex. In general, cases at law present much less difficulty than those on the equity side of the court. The cases are legion, yet there is still confusion and conflict both in the statement of the rules by which the amount in controversy shall be determined and in the application of those rules to the concrete case before the court.

The present article includes within its scope only a single rule. A rigid adherence to that rule, it is submitted, will prove a ready help in the solution of those problems which seem to give the greatest difficulty to federal judges; any relaxation of that rule can only breed (and has bred) a regrettable confusion. The rule may be thus stated: The amount in controversy in the United States District Court is always to be determined by the value to the plaintiff of the right which he in good faith asserts in his pleading that sets forth the operative facts which constitute his cause of action.

The rule is frequently stated in a somewhat different (and, it is believed, a much more objectionable) form. Thus, in Cowell v. City Water Supply Co., the court states:

"It is the amount or value of that which the complainant claims to recover, or the sum or value of that which the defendant will lose if the complainant succeeds in his suit, that constitutes the jurisdictional sum or value of the matter in dispute."

Again in Foster's Federal Practice, this statement is found:

"In a suit for an injunction, the value of the matter in dispute is that of the object of the bill, namely, the value, to the plaintiff, of the right for which he prays protection; or the value, to the defendant, of the acts of which the plaintiff prays prevention.'

shows twelve cases directly involving the jurisdictional amount in the United States District Court. In volumes 201-289 Federal Reporter (February, 1913, to September, 1923) and in volumes 226-263 United States Reports (October, 1912, to January, 1924) will be found a hundred and sixteen such cases.

4 121 Fed. 53, 57 (8th Circ., 1903). (The italics in all the quotations are ours.)

5 Vol. 1, 6 ed., § 13, pp. 50-51. For other statements of the rule, see HUGHES, FEDERAL PROCEDURE, 2 ed., § 98; WILLIAMS, JURISDICTION AND PRACTICE OF THE FEDERAL COURTS, 106-108; MONTGOMERY, MANUAL OF FEDERAL PROCEDURE, § 174;

The word "or" is, unfortunately, used in two senses: one, definitive; the other, alternative. If the word is here used in the definitive sense to indicate that the advantage to the plaintiff is always of the same value as the detriment to the defendant, then the statement (as will be shown later) is clearly wrong. If, on the other hand, the word is used in the alternative sense, to indicate that, in fixing the amount in controversy, the court may select the value of either the benefit sought by the plaintiff or the financial harm suffered by the defendant, then, it is believed, the statement is wrong in offering an alternative, when there is no alternative to be offered.

Now, in some cases, the value of what the successful plaintiff recovers is the same as the value of what the unsuccessful defendant loses. Thus, when A and B each claim title to a piece of land, "Blackacre," and A wins his suit, then what A wins, B loses "Blackacre." . From either viewpoint, that of the plaintiff or that of the defendant, the value of "Blackacre" determines the amount in controversy. The same would be true were A to sue B for the recovery of a specific chattel, for example, the celebrated horse, "Major." So when A sues B to recover damages for a tort committed by B. In such cases, the statement of the rule with "or" used definitively would be accurate; the same statement with "or" used alternatively would be somewhat fatuous, but quite harmless.

But in many cases (though both courts and writers often fail to appreciate it) the value of the plaintiff's gain is a quite different affair from the value of the defendant's loss. Thus A, with a claim against B for $1000, seeks to set aside a conveyance, alleged to be fraudulent, from B to C, of property worth $5000. Here A can only gain $1000, though C can lose much more. Again, A and B own adjoining parcels of land. A's parcel is small and of little value, but B's parcel is large and of great value. A seeks to enjoin B from polluting a stream (which runs through both parcels) by the operation of B's factory. Clearly, here, A might gain only a few hundred dollars, and yet B, in order to comply with the injunction, might have to spend many thousand dollars. Then, the definitive "or" would attempt to ROSE, FEDERAL JURISDICTION AND PROCEDURE, 2 ed., par. 189, par. 195; BUNN, UNITED STATES COURTS, 2 ed., 77.