dissenting.
It appears from the record in this case, that Mathew Peters *256and his wife, Thalia Peters, were divorced by a decree of the Superior Court of the State of New York, on the 17th of * April, 1858, and by the decree of that Court, the husband, Mathew Peters, was required to pay the sum of ten dollars per week for the support of his divorced wife and her children, which alimony is alleged to be due and unpaid; that subsequent to the date of this decree of divorce, Peters came to this State and married another woman, Mrs. Anna Peters, and died, leaving Mrs. Anna Peters, his widow, and one child. After the death of Peters, Best became his administrator. Prior to the death of Peters, Mrs. Thalia Peters filed a bill to enforce the decree for alimony out of his property in this State, which suit is still pending. After the death of Peters, Mrs. Anna Peters made application to the Ordinary for a year’s support for herself and child out of the property of his estate, which application was resisted by Mrs. Thalia. Peters, and the return of the appraisers allowing the same, was set aside by the Ordinary, on the ground that no provision was made .for the .children of Thalia Peters, and that if the claim of Mrs. Anna Peters was allowed, it might defeat the claim of Thalia Peters and her children under the decree in their favor for alimony. An appeal was taken from the decision of the Ordinary to the Superior Court. After this decision of the .Ordinary, in November, 1869, and whilst the appeal was pending the Superior Court, to-wit: On the 20th of December, 1869, Best, as administrator of Peters, filed his cross-bill, under the provisions of the Code, and obtained an injunction against Mrs. Thalia Peters and other defendants, in which cross-bill the facts before recited are fully set forth, as well as the respective claims of Mrs. Thalia Peters and her children, and the claims of Mrs. Anna Peters and her child, to the property of his intestate, and he also alleges that he has been notified by Mrs. Anna Peters’ counsel that she intends to apply for a homestead out of the property of his intestate, and that he contends that she is entitled to the same, as well as to a year’s support and dower out of said estate, before any debts due by said estate should be paid.
It is alleged in the cross-bill that the estate will be insolvent as to the allowance claimed by either of the contending parties. And he prays the direction of the Court: First, as *to the claim of. said Thalia Peters and children, and the status and dignity of said judgment, and their rights under said decree. Secondly, as to the rights of said Anna Peters and her child, and that the said Thalia Peters and her children, and the said Anna Peters and her child, be required to prove and be heard upon their several claims, and that the defendants respectively be enjoined and restrained until the several matters aforesaid can be fully settled. At this stage of the case in the Court below, Mrs. Thalia Peters, one of the defendants in the cross-bill, petitioned *258the Court as a non-resident of the State, to remove the cause from the State Court to the Circuit Court of the United States,, under the provisions of the Act of Congress of 1866 and 1867. The bill of exceptions states, that the application was made to-remove the appeal cause from the Superior Court, but that appeal cause, as we have seen, had been included in the cross-bill and made a part thereof and was enjoined, and a motion to transfer that, would necessarily transfer all the proceedings connected with it, and such was the legal effect of the motion.
The first of these Acts of Congress provides for the removal of the suit, when the suit has been instituted or prosecuted for the purpose of restraining or enjoining a non-resident defendant; or, if the suit is one in which there can' be a final determination, of the controversy so far as it concerns him, without the presence of the other defendants as parties in the cause; that is to say, if the non-resident defendant is restrained by an injunction, he may remove the suit; or, if the suit is one in which there can be a final determination of the controversy so far as concerns him, without the presence of the other defendants as parties in the cause, then he may remove it into the Circuit Court. The amendatory Act of 1867, is much broader in its terms, and provides that where -a suit is now pending, or may hereafter be brought in any State Court in which there is a controversy between a citizen of the State in which the suit is brought and'a citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, if he will *make affidavit, stating that he has reason to and does believe that from prejudice or local influence, he will not be able to obtain justice in such State Court, may, at any time before the final hearing or trial of the suit, file a petition in such State Court for the removal of the suit into the next Circuit Court of the United States, etc., and upon compliance with the terms of the Act, it is made the duty of the Sfate Court no* to proceed any further in said suit. These two Acts of Congress-are remedial statutes, and should receive- a liberal construction.
The argument that the motion) to remove only applied to the appeal from the Court of Ordinary, is merely technical, in view of the facts in the record. When the cross-bill was filed,, it embraced all the matters in controversy between the parties, and the Court of Equity had acquired jurisdiction of them for the purpose of adjudicating' the same, and the whole matter was before the Court below, the cross-bill and all the other proceedings, involving the rights of Thalia Peters, the non-resident defendant, who was enjoined, as well as the rights of Anna Peters, who claimed her year’s support, and the motion to remove was resisted, because the cross-bill had been filed, and all the matters in controversy between the parties had been merged in it, and that they had1 *259been enjoined by the Court from prosecuting the same until the final judgment of the Court should be had in regard to them, including Thalia Peters’ claim under the New York decree, as well as Anna Peters’ claim to a year’s support out of the intestate property pending on the appeal in the Superior Court. The rights of the respective parties to the insolvent intestate’s estate, were involved in that appeal which were embraced in the cross-bill, and were to be adjudicated on the final hearing thereof, and could not be otherwise adjudicated, except in the Court of Equity which had taken jurisdiction of the several matters in controversy between the parties, and the motion to remove that part of the case, as the same then stood before the Court, was for all practical purposes, as contemplated by the Acts of Congress, a motion to remove the whole case. Thalia Peters, the non-resident defendant, was ^enjoined from prosecuting her claim in the other Courts of the State, and her rights to the intestate’s property were to be finally adjudicated on the final hearing of the cross-bill. The motion to remove the case, was a motion to remove it as it then stood before the Court. And the legal effect of allowing the motion was to transfer the whole case to the Circuit Court, the cross-bill made it one entire case, so far, at least, as the rights of the non-resident defendant, Thalia Peters, was concerned, in the intestate’s property. The contest between the parties in the Court of Ordinary, was whether the claim of Thalia Peters should be allowed, or the claim of Anna Peters should be allowed; the allowance of either claim would exhaust the intestate’s estate as against the other claimant, the estate being insolvent, and the decision of the Court on the cross-bill filed by the administrator for direction, will be a final adjudication as to the claim of Thalia Peters to be paid out of the property of the intestate; both claims cannot be paid. The administrator, in legal contemplation, represents both parties, so far as their respective interests in his intestate’s estate are concerned, and the final decree on the hearing of the cross-bill, will be a final adjudication of the claims of the respective parties to be paid out of the intestate’s property. In my judgment, Thalia Peters, the non-resident defendant in the cross-bill, who had been restrained by injunction, had a clear and indisputable right, under the Acts of Congress of 1866 and 1867, to have had her petition for the removal of the case granted, and that there was no error in the judgment of the Court below in .granting the order for the. removal of the case to the Circuit Court of the United States.