>v 'I l' • » If**' «V I* . .i: ' ' • '>*A'f'ffl' ' ' ■'■■ Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLiAMS Cornell University Library The original of tinis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020102731 Cornell University Library KF 8860.D57 1881 Removal of causes from state courts to f 3 1924 020 102 731 (Jorttpll ICaui ^rljnol library REMOVAL OF CAUSES FROM STATE COURTS TO FEDEEAL COURTS, WITH FOEMS ADAPTED TO THE SEVEBAL ACTS OF CONGRESS ON THE SUBJECT. Third Edition, Bevised and Enlarged. BY JOHN F. DILLON, Professor of Equity Jueispkudence and real estate in the Law School OF Columbia College and late Circuit Judge of the Eighth Judicial Circuit, Author op a Treatise on " Municipal Corporations," etc. ST. LOUIS, MO.: WILLIAM H. STEVENSON, LAW PUBLISHER AND PUBUSHBR OF THE CENTRAL LAW JOUENAL. 1881. COPTBIGHT 1883, BT John F. Dillow. 8t. Louis, Mo.: Printed by the Central Law Journal. PREFATORY NOTE. The first edition of this work, which appeared in 1875, was speedily exhausted. • A second edition was printed in 1877, but is now out of print. At the request of its present publisher, the author of this Tract has again revised and enlarged it, bringing into view more fuUy the State court decisions, including the decisions of the Federal courts, down to the date of its publication, a Table of Cases and of Contents, a very fuU Index, and an Appendix of Forms. When considering the disposition of the Federal courts to strongly assert their own jurisdic- tion, the very high character which the Federal judiciary has always sustained, the great variety of questions coming before these courts even for final determination, the great fa,vor in which they are held by litigants, and the enhanced importance they have acquired through Congressional legislation extending their jurisdiction, both original and appellate, the profession will hardly require an apology of the author of this Tract for endeavoring to lay before them, in well digested form and logical arrangement, aU that is valuable on the subject of which he treats. OoLtTMBiA College Law School, New Toi'k, Jaiiuary> 1881. CONTENTS. CHAPTER. PAGE. I. The Federal Judicial System — Its Growth and Impor- tance ........ 1 n. Principal Statutes on the Subject— Acts of 1789, 1866, 1867, 1875; Rev. Stats., Sec. 636 .... 4 in. Constitutional validity of Removal Acts — Right Protected from Invasion by the States . . . .10 rV. Essential Elements of the Statutory Rig ht of Removal . 12 V, Judiciary Act, Sec. 12 (Rev. Stats., 639, sub-division 1) — Conditions of Eight of Removal thereunder . . 13 VI. Act of July 27, 1866 rRev. Stats., Sec. 639, sub-division 2) . — Nature of Right thereby conferred . . .19 VII. Act of March 2, 1867 (Rev. Stats., Sec. 639, sub-division 3) — Nature of Right thereby conferred . . .21 Vin. Act of March 3, 1875— Nature and Extent of Right thereby given. . . . . . .26 EX. Construction of Rev. Stats., Section 641 , by the -Supreme Court of the United States . . . .41 X. Construction of Rev. Stats., section 643, as to Actions against Federal Officers . . . . .46 XI. Nature of Suits that may be removed under above Acts — Practice — Repleader ..... 48 xn. From what Court removed;— Removal, how enforced — Certiorari ....... 60 XUI. Value or Amount in dispute, as a Condition of Remova- bUity 62 XIV. Party entitled to Removal — Corporations — Aliens . 67 XV. Time when Application must be made . . .73 XVI. Mode of Applying— Bond, etc.— Affidavit of Local In- fluence, under Act of 1867.— Petition ... 84 XVn. Effect of Petition for Removal on Jurisdiction of State Court 91 XVin. Same on Federal Court ..... 98 XIX. Remanding Causes to State Court . . . .101 TABLE CF CASES. Abieman v. Booth, 38. Abranches v. Schell, 4, 61, 87. Adams, Karraboov., 18. Adams Express Co. v. Trego, 75. Aetna Insurance Co., Herryford v., 93. Akerly v. Vilas, 58, 59, 62, 74, 75, 76, 93, 94, 99, 108, 109. Alachua Co., Dennis v., 24, 61, 102. Alexandria, etc. Eailroad Co., Washington, etc. Kailroad Co. v., 23. AUen V. Byerson, 20, 21. Allin V. Kobinson, 53. AUman, S. P. Fitzgerald v., 43. Amazon Insurance Co., Jones v., 95. American Bible Society v. Grove, 23, 26, 35, 79, 99. American Express Co., Maltz v., 70. American, etc. Insurance Co., Chamberlain v., 105. Ames V. Colorado Central Eailroad Co., 38, 79, 82, 83, 84. Amory v. Amory, 68, 87, 93, 96. Anderson, in re, 45, 95, 98. Andes Insurance Co., Michigan Central Eailroad Co. v., 80. Andes Insurance Co., Mix v., 86, 98. Andes Ins. Co., Young v., 81, 83. Andrews, Exr., v. Garrett, 84, 120. Andrews, Jones v., 33. Andrews & Mott, ex parte, 56. Anonymous (1 DiUon C. C, 298, note) , 85, 86. Anthon v. Morton, 5. Armory v. Armory, 68. Arrapahoe Co. v. K. P. E. E. Co., 16, 31. Arredondo, Ward v., 16, 17, 73. Artman, Commonwealth v., 4, 5. Assurance Co. v. Pierce, 11. Atlas Insurance Co. v. Byrus, 108, 109. Aurora, West v., 49, 51, 56, 73, 93. Austin, Heath v., 105. Ayer v. Carver, 56. Ayers v. Chicago, 35, 107. B. Baack, Manufacturers' Bank v., 70, 72. Bailey v. N. Y. Savings Bank, 43. Baird v. Byrne, 18. Baker v. Peterson, 120. Baker, etc. Sewing M. Co., Flor- ence, etc. Sewing M. Co. v., 24. Baltimore City, Barnes v., 33, 98. Baltimore & Ohio B. B. Co. v. Gary, 11, 69, 70. Baltimore & Ohio Eailroad Co. v. Gallahue's Admr., 69. TIU TABLE OP CASES CITED. Baltimore & Ohio Railroad Co. v. Harris, 69. Baltimore «fc Ohio Kailroad Co., MarshaUv.,69. Baltimore & Ohio Railroad Go. v. New Albany R. R. Co., 85, 95. Baltimore & Ohio Railroad Co. v. Wightman, 69. Bank, Cook v., 86. Bank, etc. v. Daniel, 63. Bank v. Deveaux, 34. Bank v. King "Wrought Iron Bridge Co., 95. Bank of Omaha v. Douglas County, 72. Bank of Vicksburg v. Slooomb, 14, 33. Barber v. St. Louis, etc. R. R. Co., 75, 81. Barclay v. Levee Commissioners, 15, 58, 70, 99. Barger, Chapman v., 53. Barnes v. Baltimore City, 33, 98. Barney, DeKrafft v., 62. Barney v. Globe Bank, 53, 71. Barrow v. Huntoon, 11. Barrow, Shields v., 33. Barry v. Mercien, 62. Bates, Darstv., 19,108. Bauman v. Union Pacific Railroad Co., 8. Beardsley v. Torrey, 16, 17, 73. Beardsley, Torrey v., 53. Beecher & Toncray v. Gillett & King, 25, 53. Beery v. Chicago, etc. R. R. Co., 92. Beery v. Iiick, 16, 24, 75. Bell V. Dis, 5, 62, 93, 108, 110. Benchley v.fOilbert, 5, 61. Benedict, Williams v., 54. Bennett v. Butterworth, 63. Bennett, Doremas v., 15. Benton, Savings Bank v., 73, 88, 95, 110. Berlin V. Jones, 107. Bible Society v. Grove, 23, 26, 35, 79, 99. Bigelow V. Forrest, 5. Bigelow, Tuckerman v., 33. Billings, Weeks v., 51. Bills V. New Orleans, etc. R. R. Co.,. 99. Binninger, Northern Line Packet Co. v., 6. Bird's Executors v. Cockrem, Re- ceiver, 72. Bixby V. Couse, 16, 20, 21, 23, 24. Blackwellv. Braun, 79, 81. Blair v. West Point etc. Co., 92, 95,. 98. Blatchford, Coal Co. v., 14, 15, 16, 57, 68, 105, 115. Bliss V. Kawson, 24. Bliss, Peyton v., 4, 5. Bliven v. New England Screw Co.,. 71. Bliven, New England Screw Co. v., 100. Blodgett, Wilson v., 33. Boggs V. Willard, 76. Bondurant, Watson v., 55. Bonnafee v. Williams, 68. Bonner, Garrett v., 98. Boom Co., Patterson v., 49, 53. Boom Co. V. PattersoBJ, 53. Booth, Ableman v., 38. .BoutweU, Galviuv., 18, 105. Bowen v. Chase, 86. Bowen, State v., 52. Bowen, Toucey v., 58. Bowerbank, Hodgson v., 99. Braun, Blackwell v., 79, 81. Breedlove v. Nicolet, 18. Brennan, Canahar v., 31. Briges v. Sperry, 100. Bright V. Milwaukee R . R. Co., 82^ 83, 102, 104. Blinker, McWhinney v., 95, 98. Broadway v. Eisner, 104. Brockschmidt, U. S. Savings Inst. v., 80, 98. Broderick's Will Case, 53, 54. Bridge Co., St. Anthony's Falls Water Power Co. v., 80, 92. Brown, Gardner v., 20, 57, 68. TABLE OF CASES CITED. IX Brown, Howland etc. Works, v., 71. Brown v. Keene, 96. Browne v. Strode, 16. Brimswick Co., Gurnee v., 79, 81. Bryant v. Rich, 33. 56, 73, 108. Bryant v. Scott, 24. Bryant, Vannevar v., 24, 83, 56, 73, 74, 75, 78. Burch V. Davenport, etc. R. R. Co., 24, 30, 95. Burdeck v. Hale, 90. Burke v. Flovet, 35. Burnham v. Chicago, Dubuque & Minnesota Railroad Co., 24. Burnham, Crawford v., 63. Burson v. Park Bank, 109. Burts V. Loyd, 54. Bushnell v. Kennedy, 15, 57, 68. Butterfleld, Leutze v., 67. Butterworth, Bennett v., 63. Buttner v. Miller, 5, 105. Byrne, Baird v., 18. Byrne, Hinckley v., 18. Byrus, Atlas Insurance Co. v., 108, 109. Caldwell, Douglas v., 75. CaUoway v. Ore Knob Copper Co., 16. Campbell, Scupps t., 59. Canahar v. Brennan, 31. Cape Girardeau & State Line Rail- road Co. V. Winston ej aL, 19. Capehart v. Stewart, 43. Carrington v. Florida RaUroad Co., 83, 101. Carswell V.Schley, 17, 95. Carter v. Treadwell, 68. Carver, Ayer v., 56. Cary, Baltimore, etc. R. R. Co. v., 11, 69, 70. Casanova, Romie v., 40. Case V. Clarke, 67. Case et al. v. Douglas et al., 24, 25. Central Railroad Co., Quigley v., 69, 86. Chamberlain v. American, etc. Ins. Co., 195. Chandler v. Coe, 76, 77. Chapman v. Barger, 53. Chapman, Peterson v., 17. Charleston, Weston v., 56. Charter Oak Fire Insurance Co. v. Star Insurance Co., 51, 53. Chase, Bowen v., 86. Chatham National Bank v. Mer- chants' National Bank, 18, 72. Cheek, Waggener v., 74, 75. Chew, Gaines v., 54. Chicago, Ayers v., 35, 107. Chicago V. Gage, 30. Chicago, Union'Nat. Bank v., 72. Chicago, etc. R. R. Co., Beery v., 92. , Chicago, etc. R. B. Co. v. Welch, 81. Chicago, etc. Railroad Co.,Fisk v., 71, 86. Chicago, etc. Railroad Co., Hazard v., 76. Chicago, etc. Railway Co. v. Whit- ton's Admr., 11,25, 71. Chicago & Alton Raih'oad Co., People v., 56. Chicago, DanviUe & Vincennes Railroad Co., Osgood v., 30, 91, 95, 97. Chicago, Dubuque & Minnesota Railroad Co. et al., Burnham v., 24. Chicago & Northwestern Railroad Co. V. Chicago & Pacific Rail- road Co., 69. Chicago & Northwestern Railroad Co.,McKinleyv., 76. Chicago & Northwestern Railroad Co. V. Whiton, 69, 71, 109. Chicago & Northwestern Railroad Co., Whitton v., 108, 109. Chicago & Pacific Railroad Co., Chicago & Northwestern Rail- road Co. v., 69. Chicago & St. Paul Railway Co.j McLean v., 79, 84, 104, 111. TABLE OF CASES CITED. Chicago, Eock Island & Pacific Railroad Co., Hatch v., 16, 62, 71, 92, 93, 94, 100. Chicago, Eock Island & Pacific Eailroad Co., Stanley v., 93, 94, 103, 107. Chicago, St. touis & New Orleans Eailroad Co. v. McComb et al., 37. Childress v. Emory, 68. Christmas v. Eussell, 124. Cisco, Victory., 4. Cissel V. McDonald, 55, 98. City Bank, Wilson v., 18. City of Charleston, Weston v., 56. City of Laredo, Waterbury v., 67. Claflin V. Houseman, 38. Clark V. Dick, 5. Clark V. Delaware, etc. Canal Co., 76, 92. Clark, Sherman v., 63. Clarke, Case v., 67. Clarke v. Mathewson, 68. Clarkson v. Manson, 56, 64. Clayton, Houser v., 18, 87, 99. Clearwater v. Meredith, 15, 33. Clinton & Springfield Eailroad Co., Scott e«aL v., 55, 61, 80. Clippinger v. Missouri Valley Life Insurance Co., 104. Coal Co. V. Blatchferd, 14, 15, 16^ 57, 68, 105, 115. Cobb V. Globe Mut. Insurance Co., 93, 104. Cockrem, Eeceiver, Bird's Exr. v., 72. Coe, Chandler v., 76, 77. Coffin, Sweeney v., 18, 72. Cohens t. Virginia, 8, 38, 39, 130, 137. Collier White Lead Co., Eanlett v., 51. Colorado Central Eailroad Co., Ames v., 38, 79, 82, 83, 84. Commercial Bank v. Simmons, 72. Commercial and Eailroad Bank of Vicksburg v. Slocomb, 14, 33. Commonwealth v. Artman, 4, 5. Condon, Cooper v., 87. Connor v. Scott, 39, 87. Continental Ins. Co., Doyle v., 12. Continental Ins. Co. v. Kasey, 11, 76. Cook V. Bank, 86. Cook, Dart v., 18. Cook, Davis v., 17, 20, 23, 72. Cook V. Whitney, 16, 61. Cook et al., Taylor v., 15. Cooke V. Ford, 28, 29, 30. Cooke V. Seligman, 36. Cooke V. State National Bank, 16, 23, 25, 72. Cooper V. Condon, 87. Cooper V. Galbraith, 67. Cooper. The Mayor v., 5, 7, 11, 38, 39, 94, 130, 137. Copeland v. Memphis, etc. E. B. Co., 105. Corbin, Van Brunt v., 56. County Court, Spragginsv., 62. County of Brunswick, Gurnee v., 79, 81. Couse, Bixby v., 16, 20, 21, 24. Covington Draw-Bridge Co. v. Shepherd et al., 69, 70. Cowles V. Mercer County, 70, 71. Craigie v. McArthur, 54, 74, 77. Crane v. Eeeder, 23, 76, 83, 108. Crawford v. Burnham, 63. Creighton, Green's Admx. v., 68. Cribbs, Eison v., 49. Critchlow, Galpin v., 5, 23, 74, 75, 76. Cromie, inre, 62. Cross V. De Valle, 56. Cross, Postmaster- General v., 52, 63. Crothers, Webster v., 18, 72, 99. Cummins, Mayor, etc. v., 16. Curtis, Home Insurance Co. v., 103. Curtis, Strawbridge v., 14, 33, 34. Custard, Green v., 15, 57, 59, 66, 107. D Dahlman, Wormser v., 29, 30, 78. TABLE OF CASES CITED. XI Dana, Lamar v., 5. Daniel, Bank, etc. v., 63. D'Arcy, Urtetiqui v., 97. Darst V. Bates, 19, 108. Dart V.Cook, 18. Dart V. McKinney, 58, 59, 74, 75, 99. Dart V. Walker, 17. 20, 75, 78, 93. Davenport, etc. K. Ei Co., Burcli v., 24, 30, 95. Davenport, etc. E. E. Co., Dela- ware, etc. E. E. Co. v., 95. Davis V. Cook, 17, 20,23, 72. Davis V. Gray, 16. Davis, Home Insurance Co. v., 12. Davis, State v., 11. Davis, Tennessee v., 11, 46, 47, 48, 130, 137. Davis, Wood v., 16, 33, 57, 68. De Krafft v. Barney, 62. Delaware, etc. Canal Co., Clark v., 76, 92. Delaware Eailroad Construction Co. V. Meyer et al., 35, 95. Dennis v. Alachua Co., 24, 61, 102. Dennistoun v. Draper, 4, 7, 53, 93, 100, 105. Denver, State v., 11, 46. Detroit Superior Ct. Judge, People v., 110. De Valle, Cross v., 56. Deveaux, Bank v., 34. Dexter, Mallett v., 54. Dick, Clark v., 5. Dickinson, Western Union Tele- graph Co. v., 71, 109. Dietz, Payson v., 39. Dinsmore v. Philadelphia & Eead- ing Eailroad Co., 70. Dix, Bell v., 5, 62, 93, 108, 110. Dodds,Meadow Valley Mine Co. v., 11, 86. Dodge V. Perkins, 68. Donohoe v. Mariposa Land and Mining Co., 56. Doremas v. Bennett, 15. Douglas V. Caldwell, 75. Douglas et al., Caseeiai. v., 24, 25. Douglas County, Bank of Omaha v., 72. Doyle V. Continental Insurance Co., 12. Doyle, Hartford Fire Insurance Co. v., 12. Doyle, State v., 12. Draper, Dennistoun v., 4, 7, 53, 93, 100, 105. Duncan v. Gegan, 101. Duncan, McLeod v., 100. Dunlap, Hadley v., 12, 93, 103,107, 109. Dunlap, State v., 45. Dunn, HcSme Life Insurance Co. v., 76, 109. Dunn, Insurance Co. v., 12, 74, 75, 76, 77, 86, 93, 94, 103, 107, 108, 109, 114, 122, 132, 138. Dunning, Lalor v., 98. Dupont, Muns v., 63, 94. Durant, Gard v., 7. Durant eiaL,Hazard v., 7, 8, 16,18, 23, 68, 90, 102. Durham v. Southern Life Insurance Co., 92. Du Vivier v. Hopkins, 53, 93. Dwight, Pollard v., 105. D'Wolf V. Eahaud, 67. E. Edgerton v. Gilpin, 16. Edwin Forrest Home, Forrest v., 79, 83. Eisner, Broadway v., 104. EUerman v. New Orleans Eailroad Co., 30, 108. EUzey, Hepburn v., 33, 98. Emory. Childress v., 68. Empire Transportation Co. v. Eich- ards, 97. Engle, Stewart v., 148. Erie Eailway Co. v. Stringer, 107. Ewing, Suydam v., 57, 58, 68, 99. Ex parte Andrews & Mott, 56. Mx parte Girard, 16, 17, 53. Ex parte Milligan, 56. Xll TABLE OF CASES CITED. Ex parte State Insurance Co., of Alabama, 106. Ex parte Turner, 16, 17, 53, 62. Express Co. v. Kountze, 70. Express Co., Maltz v., 70. Express Co. v. Trego, 75. F. Pairfleld, Westcottv., 98. FaUis V. McArthur, 17. Farmers' etc. Co., Ketchumv., 15. Farmers' Loan and Trust Co. v. Maquillan, 26, 69, 85, 86. Farmers' Loan and Trust Co. et al., Turner Bros, v., 41. Farwell, Insbuch v., 33. Pasnacht v. Frank, 74, 75, 107. Fashnacht, see Fasnacht. Featteau, Kidder v., 104. Ficklin, Tarver v., 52, 92. Field V. Lownsdale, 17, 20,' 21, 73, 106. Field V. ScMeffelin, 56. Fields V. Lamb, 20, 21, 25. Findley v. Sutterfield, 46. Finn, Miller v., 74. Fisk V. Chicago, etc. E. K. Co., 71. Fiskv. Union Pacific K. K. Co., 4, 7, 8, 17, 23, 58, 59, 62, 73, 86, 92, 93,94,105,109. Fitzgerald, S. P., v. Allman, 45. Fitzhugh, Pratt v., 62. Fleet, Woodson v., 5. Florence Sewing Machine Co. v. Grover & Baker Sewing Ma- chine Co., 24. Florida Eailroad Co., Carrington v., 83, 101. Plovet, Burke v., 35. Ford, Cooke v., 28, 29, 30. Forrest, Bigelow v., 5. Forrest v. EdwinForrestHome,79, 83. Fouvergne v. New Orleans, 53. Fowler, Warnerv., 5. Fowlkes V. Fowlkes, 4. Francis, G-ermania Fire Ins. Co. v., 106. Francis, Insurance Co. v., 70. Frank, Fasnacht v., 74, 75, 107. Eraser, in re, 55, 74. Freedmen's Savings Bank, Pugs- ley v., 18, 73. Freeman v. Howe, 38. French v. Hay, 83, 91, 93, 109, 110. Friedman, McStay v., 40. Fuentes v. Gaines, 54. Fuentes, Gaines v., 11, 15, 25, 50, 53, 54, 60, 62, 108. Fulton V. Golden, 79, 92. G. Gage, Chicago v., 30. Gaines v. Chew, 54. Gaines v. Fuentes, 11, 15, 25,50. 53^ 54, 60, 62, 108. Gaines, Fuentes v., 54. Gaines v. Hennen, 54. Gaines v. New Orleans, 54. Gaines, State v., 4. Galbraith, Cooper v., 67. Gallagher, Ober v., 33. Gallahue's Admr., Baltimore & Ohio Eailroad Co. v., 69. Gallatin v. Irwin, 56. Galpin v. Critchlow, 5, 23, 74, 75, 76. Galvin v. Boutwell, 18, 105. Gard v. Durant, 7. Garden City Manufacturing Co. v. Smith, 100. Gardner v. Brown, 20, 87, 68. Garrett, Andrews, Exr. v., 84, 120. Garrett v. Bonner, 98. Gaughan v. Northwestern Fertiliz- ing Co., 4. Gay V. Lyons, 41. Gegan, Duncan v., 101. George v. Pilcher, 24. Georgia v. 0"Grady, 48. Georgia, etc. E. E. Co., Pettus v., 52. Germania Fire Ins. Co. v. Francis, 106. Geyer v. Life Ins. Co., 68. Gibbons, State v., 61. TABLE OF CASES CITED. Xlll Gibson v. Johnson, 73. Gilbert, Benchley v., 5, 61. Gillett & King, Beeoiier & Toncray v., 25, 53. Gilpin, Edgerton v., 16. Girard, ex parte, 16, 17, 53. Girardey v. Moore, 17, 28, 29, 31. Globe Bank, Barney v., 71, 100. Globe Mut. Ins. Co., Cobb v., 93, 104. Golden, Fulton v., 79, 92. Gold Washing, etc. Co. v. Keyes, 28, 39, 130, 137. Goodrich v. Hunton, 16, 55, 107, 110. Goodyear, Rubber Co. v., 56. Gorbach, Knickerbocker Life Ins. Co. v., 105. Gordon v. Longest, 12, 63, 64, 93, 94, 103, 107, 109, 132. Goshorn v. Supervisors, 69. Grant Works, Torrey v., 91. Gray, Davis v., 16. Green v. Custard, 15, 57, 59, 66, 107. Green, Hartford Ins. Co. v., 98. Green v. United States, 49. Green's Admx. v. Creighton, 68. Greene v. Klinger, 67. Griffin, Stanbrough v., 79. Grove, American Bible Society v., 23, 26, 35, 79, 99. Grover & Baker Sewing Machine Co., Florence Sewing Machine Co. v., 24. Gurnee v. County of Brunswick, 79, 81. H. Hadley v. Dunlap, 12, 93, 103, 107, 109. Hagan v. Walker, 33. Hale, Burdeck v., 90. Hall V. Bicketts, 76. Hanover Nat. Bank v. Smith, 103. H^rgroves v. Redd, 54. Harris, Baltimore & Ohio Railroad Co. v., 69. Hartford Fire Insurance Co. v. Dbyle, 12. Hartford Fire Insurance Co. v. Green, 98. Hartford Ins. Co., Whittier v., 74, 75, 77, 78. Hartshorn v. Wright, 63. Hatch V. Chicago, Rock Island & Pacific Railroad Co., 16, 62, 71, 92, 93, 94, 100. Hatch V. Preston, 51. Hatch, Stough v., 82. Havens, Huddy v., 79. Hay, French v., 83, 91, 93, 109, 110. Hayes, Hodgkins v., 19. Hazard v. Chicago, etc. Railroad Co., 76. Hazard v. Durant ei, aZ., 7, 8, 16, 18, 23, 68, 90, 102. Healy v. Provost, 52. Heath v. Austin, 105. Hendren, New York Life Insurance Co. v., 38. Henuen, Gaines v., 54. Hepburn v. EUzey, 33, 98. Heriyford v. ^tna Insurance Co., 93. Herveyj v. Illinois, etc. Railroad Co., 31. Hinckley V. Byrne, 18. Hoadley v. San Francisco, 75, 84, 120. Hobbs V. Manhattan Insurance Co., 71. Hodgkins v. Hayes, 19. Hodgson V. Bowerbank, 99. Hodgson V. Milward, 4, 5. Holden, Murray v., 79. Holden v. Putnam Fire Insurance Co., 12, 88, 95, 110. Hollingsworth, Hurt v., 58. Holmes v. Jennison, 56. Home Insurance Co. v. Curtis, 103. Home Insurance Co. v. Davis, 12. Home Life Insurance Co. v. Dunn, 76, 109. Hook, Payne v., 54. Hopkins, Du Vivier v., 53, 98. XIV TABLE OF CASES CITED, Horn, Lockhartv., 32. Hoskins,^State v., 11, 46. Houa;h v. Western Transportation Co., 18, 62, 108. Houseman, Claflin v., 38. Houser v. Clayton, 18, 38, 87, 99. Houston, Elce v., 68. Hovey, Milligan v., 5. Howe, Freeman v., 38. Howland etc. Works v. Brown, 71. Hubbard v. Eailroad Co., 16. Huddy V. Havens, 79. Hughes, Kellogg v., 74, 75. Hulsecamp v. Teel, 64. Humphreys, Webber v., 51. Hunter's Lessee, Martin v., 3, 38. Hunton, Goodrich v., 16, 55, 107, 110. Huntoon, Barrow v., 11. Hurst V. Western, etc. Railroad Co., 23. Hurt V. HoUingsworth, 58. Hj'de V. Phoenix Insurance Co., 102. I. Illinois, etc. Bailroad Co., Hervey v., 31. Imperial Fire Insurance Co., Terry v., 71. Indianapolis, etc. Eailroad Co. v. Eisley, 88, 95, 109. Indianapolis, Eloomington & West- ern Eailroad Co. et al., Turner Bros, v., 41. In re Anderson, 45, 95, 98. In re Cromie, 62. In re Fraser, 55, 74. In re Girard, 16, 17, 53. In re Turner, 16, 17, 53, 62. Jra re Wells, 45, 46, 61, 95. Insbuch V. Farwell, 33. Insurance Co. v. Byrus, 108, 109. Insurance Co. v. Curtis, 103. Insurance Co. v. Davis, 12. Insurance Co. v. Doyle, 12. Insurance Co., Doyle v., 12. Insurance Co. v. Dunn, 12, 74, 75, 76, 77, 86, 93, 94, 103, 107, 108, 109, 122, 132. Insurance Co. v. Francis, 70, 106. Insurance Co. v. Green, 98. Insurance Co., Herryford v., 93. Insurance Co. v. Hobbs, 71. Insurance Co. v. Holden, 12, 88, 95, 110. Insurance Co., Hyde v,, 102. Insurance Co., Jackson v., 89, 102. Insurance Co., Jones v., 95. Insurance Co. v. Kasey, 11, 76. Insurance Co., Loffler v., 86. Insurance Co. v. MoGuire, 98. Insurance Co., McMurdy v., 92, 98. Insurance Co. v. Massachusetts, 70. Insurance Co., Michigan Central Eailroad Co. v., 80. Insurance Co., Mix v., 86, 98. Insurance Co. v. Morse, 12, 108. Insurance Co., Morton v., 71. Insurance Co., Partridge v., 58, 59, 93. Insurance Co., Pechner v., 88. Insurance Co. v. Pechner, 88. Insurance Co., Savryer v., 17. Insurance Co., Sayles v., 15, 53, 71. Insurance Co., Stevens v., 12, 93, 94, 103, 107, 108, 109. Insurance Co., Terry v., 71. Insurance Co., Whittier v., 74, 75, 77, 78. Insurance Co., Young v., 81, 83. Insurance Co. of Alabama, ezparte, 106. Insurance Cos., Whitehouse v., 28, 79, 81. Irick, Beery v., 16, 24, 75. Irvine v. Lowry, 14. Irwin, Gallatin v., 56. Jackson v. Mutual Insurance Co., 89, 102. Jackson v. Twentyman, 18. Jennison, Holmes v., 56. Johnson, Gibson v., 73. TABLE OF CASES CITED. XV Johnson v. Monell, 11, 22, 24, 25, 26, 73, 74, 75, 88, 89. Johnson, State v., 52, 95, 108. Johusou, Wetherbee v., 5. Jones V. Amazon Ins. Co., 95. Jones V. Andrews, 33. Jones, Berlin v., 107. Jones V. League, 67. Jones V. Oceanic Steam Navigation Co., 6, 7. Judge, The, State y-, 108. .Justices, The, v. Murray, 5, 74, 75. K. Kain v. Texas Pacific Eaih-oad Co., 6, 8, S3, 85. Kanouse v. Martin, 12, 63, 66, 93, 94, 103, 107, 109, 132. Kanouse, Martin v., 59. Kansas Pacific Railway Co., Arra- pahoe County v., 16, 31. Kansas Pacific Railway Co., Wash- ington Improvement Co. v., 52. Karrahoo v. Adams, 18. Kasey, Continental Ins. Co. v., 11, 76. Kaufman v. McISTutt, 83. Kawson, Bliss v., 24. Keene, Brown v., 96. Keith V. Levi, 53, 63, 82. Kellogg V. Hughes, 74, 75. Kennedy, Bushnell v., 15, 57, 68. Keokuk Northern Line Packet Co., Sheldon v., 32. Ketchum V. Farmers' etc. Co., 15. Ketchum, Railroad Co. v., 35. Keyes, G-old Washing, etc. Co. v., 28, 39, 130, 137. Kidder v. Peatteau, 104. Kingv. Wilson, 63. King, etc. Bridge Co., Bank v., 95. King, etc. Bridge Co., St. An- thony's Palls Water Power Co. v., 80, 92. King of Spain v. Oliver, 71. Kingsbury v. Kingsbury, 92. Klinger, Greene v., 67. Knapp V. Troy & Boston Railroad Co., 16, 57, 68, 110. Knickerbocker Life Insurance Co. V. Gorbach, 105. Kountze, Express Co. v., 70. Ladd V. Tudor, 63, 94. Lalor V. Dunning, 98. Lamar v. Dana, 5. Lamb, Fields v., 20, 21, 25. LaMothe Manfg. Co. v. National Tube Works, 28, 58. Lanz v. Randall, 18, 67. Laredo, Waterbury v., 67. League, Jones v., 67. Lee v. Lee, 62. Lee V. Watson, 63. Letson, Louisville Railroad Co. v., 15, 34, 69. Leutze v. Butterfleld, 67. Levee Commissioners, Barclay v., 15, 58, 70, 99. Levi, Keith v., 53, 63, 82. Levi, Western Union Telegraph Co. v., 63, 64. Lewis V. Smythe, 75, 81. Life Insurance Co., Chamberlain v., 105. Life Insurance Co., Clippinger v. 104. Life Insurance Co., fCobb v., 93, 104. Life Insurance Co. v. Dunn, 76. Life Insurance Co., Durham v., 92. Life Insurance Co., Geyer v., 68. Life Insurance Co. v. Gorbach, 105. Life Insurance Co. v. Hendren, 38. Life Insurance Co., Morton v., 71. Life Insurance Co., Owen v., 11. Life Insurance Co. v. Saettel, 81. Life Insurance Co.,Shaftv., 69, 86, 92, 110. Life Insurance Co., Smith v., 31, 51. Liverpool Insurance Co. v. Massa- chusetts, 70. Liverpool Insurance Co. v. McGuire, 98. XVI TABLE OF CASES CITED. Lockhart v. Horn, 32. Loffler V. Insurance Co., 86. Longest, Gordon v., 12, 63, 64, 93, 94, 103, 107, 109, 132. LouisviUe Railroad Co. v. LetsoH, 15, 34, 69. Low V. Wayne Bank, 41. Lowe V. Williams, 74. Lownsdale, Field v., 17, 20, 21, 73, 106. Lowry, Irvine v., 14. Loyd, Burts v., 54. Lyall, Mathews v,, 92, 94. Lyons, Gay v., 41. M. Mack, Stevens v., 4. Madison Parlsli, Tunstall v., 98. Magee v. Union Pacific Railroad Co., 8. Mahone v. Manchester, etc. Kail- road Corporation, 85, 93, 108. Mallett V. Dexter, 54. Maltz T. American Express Com- pany, 70. Manchester, etc. Railroad Corpora- tion, Mahone v., 85, 93, 108. Manhattan Insurance Co., Hobbs v., 71. Manson, Clarksonv.,56, 64. Manufacturers' Bank v. Baack, 70, 72. Maquillan, Farmers's Loan & Trust Co. v., 26, 69, S5, 86. Mariposa Land & Mining Co.,Don- ohoe v., 56. Marshall V. The Baltimore & Ohio Railroad Co., 69. Martin v. Hunter's Lessee, 3, 38. Martin v. Kanouse, 59. Martin, Kanouse v., 12, 68, 66, 93, 94,103,107,109,132. Martin, Tapley v., 88. Martin v. Taylor, 52, 63. Massachusetts, Liverpool Insurance Co. v., 70. Mathewson, Clarke v., 68. Matthews v. Lyall, 92, 94. Matthews, Wood v., 4, 105. Mayo V. Taylor, 95. Mayor, The, v. Cooper, 5, 7, 11, 38, 39, 94, 130, 137. Mayor, etc. v. Cummins, 16. McArthur, Craigie v., 54, 74, 77. McArthur, Falllsv., 17. McBratney v. Usher, 18, 73. McCallon v. Waterman, 82. McComb et al., Chicago, St. L. & N". O. R. R. Co.*'., 37. McComb, Union Pacific R. R. Co. v., 38,39. McCoy V. Washington County, 70. McDonald, Clssel v.. 55, 98. McDowell, United States v., 63. McGinnity v. White, 20, 63, 78, 88, 89. McGulre, Liverpool Ins. Co. v., 98. McKean, etc. Navigation Co., Win- ans v., 15. McKee v. Rains, 5. McKee, United States v., 61. McKinley v. Chicago & Northwest- ern Railroad Co., 76. McKinney, Dart v., 58, 59, 74, 75, 99. McLean v. St. Paul & Chicago Rail- road Co., 79, 84, 88,89,104,111. McLeod V. Duncan, 100. MoMurdy v. Insurance Co., 92, 98. McNutt, Kaufman v., 83. McStay v. Friedman, 40. McWhinney v. Brinker, 95. 98. Mo Williams, Thacher v., 106. Meadow Valley Mine Co. v. Dodds, 11, 86. Memphis, Murdock v., 38. Memphis, etc. Railroad Co., Cope- land v., 105. Mercer County, Cowlesv., 70, 71. Merchants' Nat. Bank, Chatham Nat. Bank v., 18,72. Merchants' ]National Bank v. Wheeler, 58. Merchants & Manufacturers' Nat. Bank v. Wheeler, 84, 87, 99, 120. TABLE OF CASES CITED. XVU Mercien, Barry v., ii-i. Meredith, Clearwater v., 15, 33. Merrill v. Petty, 63. Merwin v. Wexel, 17, IS. Meserole v. Union Paper Collar Co., 38. Meyer, Delaware Kailroad Con- struction Co. v., 35, 113. Michigan Central Railroad Co. v. Andes Insurance Co., 80. Mifflin, Vasse v., 98. Miller, Buttuer v., 5. 105. Miller v. Finn, 74. MiUigan, ex parte, 56. Milligan v. Hovey, 5. Milward, Hodgson v., 4, 5. Milwaukee Railroad Co., Bright v., S2, S3, 102, 104. Milwaukee & St. Paul Railway Co., Minnett v., 69, 74, 75, 77, 85, 86. Minnett v. Milwaukee & St. Paul Railway Co., 69, 74, 75, 77, 85, 86. Minot V. Philadelphia, Wil. ct B. Kailroad Co., 69. Mississippi. New Orleans, etc. Rail- road Co. v., 77, 80, 82, 89, 102, 107, 130-139. Mississippi & Rum River Boom Co. , Patterson v., 49, 53. Missouri, Kansas & Texas Railway Co., Williams v., 69. Missouri Valley Life Insurance Co., Clippinger v., 104. Mix V. Andes Insurance Co.. 86, 98. MoJEfat V. Soley, 14. Monell, Johnson v., 11, 22, 24, 25, 26, 73, 74, 75, 88, 89. Montalet v. Murray, 18. Moore, Girardey v., 17, 28, 29, 31. Mordecai, Stewart v., 19, 24, 105. Morgan, Perkins v., 16. Morgan's Heirs v. Morgan, 67. Morse, Insurance Co. v., 12, 108. Morton, Anthon v., 5. Morton V. Mutual Life Insurance Co., 71. Muns V. Dupont, 63, 94. Murdock v. Memphis, 38. Murray v. Holden,79. Murray, Montalet v., 18. Murray v. Patrie, 5, 38. Murray, The Justices v., 5, 74, 75. Mutual Insurance Co., Jackson v., 89,102. Mutual Life Insurance Co., Morton v., 71. Myers, Swan v., 41. Myers, United States v., 67. N. National Tube ^Vorks, La Mothe Manfg. Co. v., 28, 58. Navigation Co., Winans v., 15. Nelson, Roberts v., 66, 94. Neves v. Scott, 57. New Albany R. R. Co., Baltimore &OhioR. R. Co. v., 85, 95. New England Screw Co., Bliven v., 71. New England Screw Co. v. Bliven, 100. New Orleans, Fouvergne v., 53. New Orleans, Gaines v., 54. New Orleans v. Winter, 33, 98. New Orleans, Mobile & Texas Rail road Co. v. State of Mississippi , 77, 80, 82, 89, 102, 107, 130-139. New Orleans, etc. Co. v. Recorder, etc., 98. New Orleans, etc. Railroad Co., BiUs v., 99. New Orleans, etc. Railroad Co., Ellerman v., 30, 108. New York Life Insurance Co. v. Hendren, 38. New York Life Insurance Co. , Owen v., 11. New York Savings Bank, Bailey v., 43. New York & New Hampshire Rail- road Co., Pomeroy v., 71. Nicolet, Breedlove v., 18. North am, Pratt v., 54. XVUl TABLE or CASES CITED. Nortiiei-ri Line Packet Co. v. Bin- iiinger, 6. Northeru LinePacket Co., Sheldon v., 32. Northnp, Vaughan v., 54. Northwestern Fertilizing Co., Gau- ghau v., 4. ISTortli western Insurance Co.,K''ayles v., 15, 53,71. Northwestern Kaihvay Co. v. Chi- cago i,■). Watson, Lee v., 03. Watt V. White, 81. Wayne Bank, Low v., 41. Webber V. Ilnmphreys. ."il. Webster v. Crotbeis. IS, 73, 09. Weed Sewing Macliine Co.v. Smith, 88. 03. Weed Sewing Machine Co. v. Wieks e£n?.,16, 57, 68. Weeks v. Billings, 51. Weill V. Wald, 39. Welch, Chicago, etc. K.K. Co. v., 81. Wells, in re, 45. 46, 61, 95. Wells, Wright v.. 66, 04. West V. Aurora, 49, 51, 56, 73, 93. West Point, etc. Co., Blair v. ,92, 95, 98. West Virginia, Strander v., 11, 43. Westcott V. Fairchild, 98. AVestem, etc. Railroad Co., Hurst v., 23. Western Transportation Companj', Hough v., 18, 62, 108. Western Union Telegraph Co. v. Dickinson, 71, 109. Western Union Telegraph Co. v. Levi, 63, 64. Weston V. City of Charleston, 56. Wetherbee v. Johnson, 5. Wexel, Merwin v., 17, 18. Wheeler, Merchants & Manufact- urers' Bank v., 84, 87, 99, 120. Wheeler, Merchants' National Bank v., 58,99. Wheeler, Ohio & Mississippi Rail- road Co. v., 69, 70. White, McGinnity v., 20, 63, 78, 88, 89. White, Watt v., 81. Whitehouse v. Insurance Com- panies, 28, 79, 81. White Lead Co., Ranlett v., 51. Whitney, Cook v., 16, 61. Whitou V. C'liieago& Northwestern Railroad Clu., 69, 108,109. Whiton, Railroad Co. v., 69, 71, 109. Whittier v. Hartford Insurance Co., 74, 75, 77, 78. Whitton"s Adnir., Cliicago, etc. Railway Co. v., 11, 25, 71. A\^icks et a?.. Weed Sewing Machine Co. v., 16, 57, 08. Wightnian, Baltimore & Ohio Rail- road Co. v., 69. Wilkinson, Salt Co. v., 5. Willard, Boggs v., 76. Williams v. Benedict, 54. Williams, Bonnafec v., 68. AYilluuns, Lowe v., 74. Williams v. Missouri, Kansas & Texas Railway Co., 69. Williams, Stevenson v.. 74, 75,77. Williams v. Williams. 75. Williams Mower, etc. Co. v. Eay- nor. 101. Wilson v. Btodgett, 33. Wilson v. City Bank, 18. Wilson, King v., 63. Winans v. McKean, etc. Navigation Co., 15. Winston etaL. Cape Girardeau, etc. Railroad Co. v., 19. Winter, New Orleans v., 33, 98. Wood V. Davis, 16, 33, 57, 68. Woodv. Matthews, 4, 105. Woodson v. Fleet, 5. Wormlej' v. Wormley, 16. Wormser v. Dahlman, 28, 30, 78, Wright, Hartshorn v., 63. Wright, Slason v.,.56. Wright V. Wells, 66, 94. y. Young V. Andes Insurance Co., 81, 83. Young, Ryan v., 102. Yulee V. Vose, 74, 121. Z. Zinc Co.v. Trotter, 28. REMOYAL OF CAUSES MOM STATE TO FEDERAL COUETS. CHAPTEK I. THE FEDERAL JUDICIAL SYSTEM ITS GROWTH AND IMPORTANCE. § 1. The Act of September 24, 1789 (1 Stats, at Large, 79), styled by way of eminence the judiciary act, was passed the same year in which the Constitution went into effect, and organized the National or Federal Judicial Sys- tem, substantially as it exists to-day. No structural changes have since been made in that system, and considering the complex and highly artificial nature of the Federal juris- diction, the Judiciary A.ct is justly to be regarded as one of the most remarkable instances of wise, sagacious, thoroughly considered legislative enactments in the history of the law. But while the National Judicial System as established by that Act remains without organic changes, yet changes of a minor, though impottant, character have been made from (1) 2 REMOVAL OF CAUSES. time to time. This has been done, hoAvever, without dis- turbing the nice adjustments and skillful arrangements of the original plan. The system of 1789 is, in form and essence, the system of 1880. If we consider the intricate nature of the relations of the Federal and Sta,te governments ; that each has a judicial system of its own ; that the two classes of courts sit in the same territory, and exercise day by day jurisdiction over the same subjects and the same persons ; that the judicial system provided by the Judiciary Act was untried and experimental ; that serious conflicts- between the State and Federal Courts have been almost wholly avoided ; that the Jadiciary Act remains, after the lapse of nearly a century, almost intact, — it will appear that the admiration with which it has been regarded by states- men, lawyers and judges, is not undeserved. And the changes which have been made are those which have been demanded by convenience, by the increase of the population and business of the country, and, during and since the Wax* of the Eebellion, by circumstances brought about by that unanticipated event, and they are not changes made neces- sary by want of foresight in the great minds which devised and enacted the original scheme. The altered condition of the country has made still further changes, or rather enlargements, of the plan necessary, such as, for example, an intermediate court of appeals, for the relief of the- Supreme Court and the convenience of suitors, and more judicial force in the districts, etc. ; but it is not our present purpose to enter upon this topic. § 2. The Amendments to the Judiciary Act made from time to time by Congress concerning the Federal Courts, and notably those made during and since the Eebellion, have tended uniformly in one direction, namely, an enlargement of their jurisdiction. And the recent Act of March 3, 1875, in connection with the legislation then existing, has amplified the Federal judicial power almost to the full limits of the Constitution. The history of the Federal jurisdic- tion is one of constant gi'owth ; slow, indeed, during the REMOVAL OF CAUSES. 3 first half-century and more, but very rapid within the last few years. From various causes, Avhich we need not stop to trace, the small tide of litigation that formerly flowed in Federal channels has swollen into a mighty stream. Certain it is that of late years the importance of the Fed- eral courts has rapidly increased, and that much, perhaps most, of the great litigations of the country is now conducted in them. This is noticeably so in the Western States. These observations have been made, because they are a fitting introduction to the special subject under consider- ation, — Removal of C auses from the State Courts to Federal Courts. They have, indeed, been suggested by that subject ; for, as will be seen as we proceed, the limited right in this regard given by the Judiciary Act has been enlarged from time to time, until a very considerable portion of the con- tested cases in the Federal courts now reach them through this channel. § 3. The Prefatory Note briefly recites the origin of this Monograph. The article in the Southern Law Review, there referred to, was prepared by the author at the request of its editor. In view of the many recent changes in^the legislation on this important subject, and of the uncertaiiaty which many lawyers suppose to surround it in consequence of those changes, the present Publisher has suggested the desirableness of enlarging the scope of the Tract, by the ad- dition of Practical Forms, and of such new matter as the judicial decisions down to date supply. This has accord- ingly been done. § 4. The Cognizance over Cases removed to the Federal Court has sometimes been referred to the appellate jurisdic- tion, on the ground that, as the suit is not instituted in the Federal court by original process, the jurisdiction of that court must be appellate ; ^ but Mr. Justice Nelson accurately characterized the jurisdiction in such cases ' ' original juris- 1 Martin v. Hunter's Lessee, 1 Wheat. 304, 349, 350. 4 REMOVAL OF CAUSES. diction, acquired indirectly hy a removal from the State court." ^ CHAPTEE II. THE PRINCIPAL STATUTES ON THE SUBJECT OF REMOVALS ACTS OF 1789, 1866, 1867 and 1875. § 5. There are some statutes giving the right of removal in special cases which we shall only mention generally, such as the right to remove causes, civil and criminal, in any State court, against persons denied Givil Rights; ^ and suits, civil and criminal, against Revenue Officers of the United States, and against officers and other persons acting under the Registration Laws;^ and suits by Aliens against Civil iDennistoun v. Draper, 5 Blatchf. 336; Fisk v. U. P. E. E. Co., 6 BlatGhf. 362, 367. ' U. S. Kev. Stats., §§ 641, 642, construed. State v. Gaines, 2 Woods C. O. 342, (1874) ; Gaughan v. N. W. Fertilizing Co., 3 Bissell, 485, (1873) ; Fowlkes V. Fowlkes, 8 Chicago Legal News, 41 ; Commonwealth v. Art- man, 3 Grant (Pa.) , 436 ; Hodgson v. Milward, 3 Grant (Pa.) , 418. 'Eev. Stats., title XXVI, "The Elective Franchise." Eev. Stats., §643. ACT OF March 2, 1833 (4 Stats, at Large, 633), known as the '■'■Force Aot. "This Act provided for the removal of suits and prosecutions com- menced in a court of any State, against any officer of the United States, for any act done under the revenue laws of the United States, or under color thereof. See Eev. Stats., § 643. This statute, as re-enacted, ap- plies to the removal of revenue cases under "• any revenue law of the United States." Eev. Stats., § 643. It was previously held to be in force as to removal of revenue cases, except those arising under the inter- nal revenue system. Peyton v. Bliss, 1 Woolw. 170 (1868) , Miller, J. ; Stevens v. Mack, 5 Blatchf. 514 (1867), Benedict, J. Construction of Act of 1833, see Dennistoun v. Draper, 5 Blatchf. 336, Nelson, J.; Abranches v. Sohell, 4 Blatchf. 256; Wood v. Matthews, 2 Blatchf. 370. The removal may be had without regard to the amount in controversy. Wood v. Matthews, 2 Blatchf. 370. A suit against an ofllcer of the United States is not removable under the Act of 1833 on the ground that the act complained of was done under the instructions of the treasury department. Victor v. Cisco, 5 Blatchf. REMOVAL OF CAUSES. 5 128— but see Eev. Stats., § 643. See Benchley v. {Gilbert (Act of July 13, 1866, § 67), 8 Blatchf. 147; Salt Co. v. Wilkinson, 8 Blatchf. 30. Cases arising under direct tax law are removable under Act of 1833. Peyton v. Bliss, 1 Woolw. 170, Miller, J. What are '■^revenue laws " under the Act of March 2, 1833? That Act extends to an action in the State court against a postmaster for a wrong- ful refusal to deliver a letter to the plaintiff, and such an action was held to be removable into the Federal com-t. Warner v. Fowler, 4 Blatchf. 311 (lS59),Ingersoll, J. An action of slander begun in a State court against a collector of customs, for words spoken while in the discharge of his official duty and explan- atory of it, may be transferred to the Federal court under the "Force Act " of March 2, 1833 (4 Stats, at Large, 633), which provides " that any case where suit or prosecution shall he commenced in a court of any State against any officer of the United States, for, or on account of any act done under the revenue laws of the United States, or under color thereof," may be removed by the defendant to the Federal court. The question arose on a motion to remand ; and as it appeared from the petition for the removal that the words complained of were spoken by the defendant, while in the discharge of his official duties as collector, and in connection with a seizure of goods for an alleged violation of the revenue laws (which fact the motion to remand necessarily admitted to be true), the court held that words thus spoken were to be consid- ered, under this statute, as an act done under the revenue laws of the United States. Woods, Circuit Judge, says: "Words spoken in eonneotion with the act of seizure, and in explanation or justification thereof, become part of the act, and together with the seizure form one transac- tion." Buttner v. Miller, 1 Woods C. C. 620 (1871). Act of March 3, 1863 (12 Stats, at Large, 757), and Act of March 2, 1867, as to removability of suits for acts done during the late rebellion under Federal authority. See Milligan v. Hovey, 3 Bissell, 13; s. c, 3 Ch. Leg. News, 321; Clark v. Dick (limitation), 1 Dill. C. C. 8; Wood- son V. Fleet, 2 Abb. U. S. 15; Bigelow v. Forrest (ejectment suit not removable) , 9 Wall. 339 (1869) ; Murray v. Patrie (removal after judg- ment) , 5 Blatchf. 343 (1866) , reversed in The Justices v. Murray, 9 Wall. 274 (1869) . This last case holds that so much of the 5th section of the Act of March 3 (1863) , as provides for the removal of a judgment in a State court, where the cause was tried by a jtiry, for re-trial on the facts and law in the Circuit court, is in conflict with the seventh amendment of the Constitution, and void. McKee v. Eains, 10 Wall. 22 ; Galpin v. Critch- low, 112 Mass. 341 (1873) ; Wetherbee v. Johnson, 14 Mass. 412 ; The Mayor V. Cooper, 6 Wall. 247; Lamar v. Dana, 10 Blatchf. 34; Bell v. Dix, 49 N. Y. 232; Anthon v. Morton, 15 Am. Law Eeg. (N. S.), 556; Hodgson V. Milward, 3 Grant (Pa.), 418. Criminal case can not be removed before indictment found in the State court. Commonwealth v. Artman, 3 Grant (Pa.), 436. b EEMOVAL OF CAUSES. Officers of the United States under specified circumstances ; ^ and suits against certain Federal Corporations, or their members as such members, may be removed upon verified petition, " stating that such defendant has a defense arising under or by virtue of the Constitution or of any treaty or law of the United States." ^ This Act is not repealed by the Act of March 3, 1875.' It applies, in its true construction, only to corporations organized under a law of Congress, and does not include national banks, which are expressly excepted, nor corpora- tions created by foreign governments or by the several States.* § 6. Under this Act, Mr. Justice Nelson decided at the circuit two important points, which we notice, as they illus- trate more or less questions which arise under other Eemoval Acts, and particularly the Act of March 3, 1875. He held : 1st. Where one or more of the defendants have presented a petition for removal conforming to the Act, and thus initi- ated the removal, it is not competent for the State court to take any proceedings in the cause, other than to perfect the 1 Kev. Stats., § 644. • "Act of July 27, 1868. (15 Stats, at Large, 227; Eev. Stats., § 640). This statute, as found in section 640 of the Eevised Statutes, is as follows : " Any suit commenced in any court other than a Circuit or District court of the United States, against any corporation other than a hanking corporation organized under a law of the United States, or against any memher thereof as such memher, for any alleged liability of such cor- poration, or of such member as a member thereof, may be removed, for ti'ial, in the Circuit court for the district wliere such suit is jDending, upon the petition of such defendant, verified by oath, stating that such de- fendant has a defense arising under or by virtue of the Constitution or of any treaty or law of the United States. Such removal, in all other respects, shall be governed by the provisions of tlie preceding section." Under the Act of July 27, 1868, a corporation seeking the removal of a cause, must show that it was organized under the laws of the United States, or that there is a defense arising under the Federal Constitu- tion, or some treaty or law of the United States. Northern Lin« Packet Co. v. Binninger, 70 111. 571, (1873). « Kain v. Tex.as Pacific B. R. Co., 3 Cent. L. J. 12, Duval, J. < Jones V. Oceanic Steam Nav. Co., 11 Blatohf. 406 (1873). REMOVAL OF CAUSES. 7 removal, as the other defendants may appear and present tiieir petitions, which they may do at different times. 2d. That the joining of defendants in a suit, not within the limitations of the Act, M'ith those who are, cannot have the effect to defeat the Federal jurisdiction. He adds: "If this were permitted, the privilege extended to parties setting up a right under the Constitution and Laws of the United States, would, iu most, if not in every instance, be de- feated," and " most of these Removal Acts, depending prin- cipally upon the subject-matter', and intended to secure the in- terpretation of the Constitution and Laws of the United States, at the original hearing, to its own judiciar}^ would be futile and worthless." In such cases, " if these outside par- ties are deemed material, or are really material, to a complete remedy in behalf of the plaintiff, they must be regarded as subordinate and incidental to the principal litigation in re- spect to which the Act of Congress has interposed the remedy of removal. In this way the right of the parties to have their defense, under the Constitution or Laws of the United States, tried in the Federal courts, is secured ; and, at the same time, the remedy of the plaintiff is unimpaired."^ § 7 . A Petition for Removal under this Act must state that the corporation or member thereof applying for removal has " a defense arising under or by virtue of the Constitu- tion of the United States or some treaty or law of the United States ;" but it need not state what the defense is, nor the facts constituting it ; — this is a matter for deter- mination in the Federal court, not on motion to remand, but on formal pleadings, or pleadings and proof .^ 1 Fisk V. Union Pacific K. K. Co., S Blatchf. 243, 248 (1871) . The Act of July 27, 1868 (Rev. Stats. 640) , held to provide only for a case in which the federal corporation or memher thereof was the sole defendant. Hazard v. Durant et al., 9 R. I. 602, G09 (1868), by Potter, J. But it was decided otherwise in Fisk v. Union Pacilic Railroad Co., 6 Blatchf. 362; s. c, 8 ih. 243, 299; and this latter is, undoubtedly, the true construction of the Act on this point. Further, as to construction of this Act, see •Oard V. Durant, 4 Clifford C. C. 113 (1879). 2 Jones V. Oceanic Steam Nav. Co., 11 B]atchf. 406. See on this point "The Mayor v. Cooper, 6 Wall. 247 ; Dennistoun v. Draper. 5 Blatchf. 336, 8 REMOVAL or CAUSES. § 8. The Important Acts of General Operation as to Re- movals, and which relate to cases that daily arise, are what is known as the 12th section of the Judiciary Act ; the Act of July 27, 1866,1 ^j^^ ^^t of March 2, 1867,^ known as the " Prejudice or Local Influence Act," and lastly the Act of March 3, 1875.^ This last-named Act was passed since the Kevised Statutes The 12th section of the Judiciary Act, the Acts of July 27, 1866, and of March 2, 1867, Nelson, J. ; Turton v. Union Pacific E. E. Co., 3 Dillon C. C. 366, Miller, J. Compare Magee v. U. P. E. E. Co., 2 Sawyer, 447, Hillyer, J. ; Haz- ard V. Durant et al., 9 E. I. 602, before Potter, J. ; Kain v. Texas Pacific R. R. Co. (East. Dist. Texas, Duval, J.) , 3 Cent. L. J. 12 (1875) ; Pisk v. U. P. E. E. Co., SBlatchf. 243; lb. 299. Under this Act, Hillyer, J., de- cided that the fact, that the corporation (the Union Pacific Eailroad Co.) was one organized under a law of the United States, is not enough to authorize the transfer of a cause to the Circuit court of the United States. The action was one for a personal injury to the plaintiff; and it appear- ing that the only defense made hj' the answer was in denial of the imputed negligence, the decision of which depended entirely upon common-law principles, and not upon the construction of any Act of Congress, the cause was, on motion, remanded to the State court. Magee v. U. P. E. E. Co., 2 Sawyer, C. C. 447 (1873). Under the same state of facts, Mr. Justice Miller has held precisely the other way. Tur- ton V. U. P. E. E. Co., 3 Dillon, C. C. 366 (1875). The question is a close one ; and the suggestion presents itself, if in every suit against a federal corporation, such a corporation necessarily has a defense under a law of the United States, because it is a corporation organized under a law of the United States, why did Congress not unconditionally pro- vide for the transfer of all suits, without requiring a verified statement that they have " a defense arising under or by virtue of the Constitution or a treaty or a law of the United States?" As bearing on this subject, gee Osborn v. U. S. Bank, 9 Wheat. 738; Cohens v. Virginia, 6 Wheat. 264; Hazard v. Durant eit a?., 9E.I. 602; Kain v. Texas Pacific E. E. Co.,. 3 Cent. L. J. 12 (1875) ; Fisk v. Union Pacific E. E. Co., 6 Blatchf. 362; s. c, 8 id. 243, 299. The view of Mr. Justice Miller in the case of Tur- ton, supra, derives strong support from the consideration that, under ita charter, this corporation may sue and be sued originally in the Circuit court, without reference to citizenship or other ground of jurisdiction, fBauman v. Union Pacific E. E. Co., 3 Dillon, 367), and jurisdiction by removal is but the exercise of original jurisdiction acquired in this man- ner. Ante, § 4. 1 14 Stats, at Large, 306. ' 14 Stats, at Large, 558. s 18 Stats, at Large, 470. REMOVAL or CAUSES. 9 above mentioned, although technically repealed by the Eevised Statutes of the United States, are substan- tially re-enacted in the 639th section thereof. These statutes are the foundation of the law on the subject of removals on the grounds therein provided for, and the prin- cipal purpose of this Tract is to give a reading on those statutes, or, in other words, an exposition of their meaning in the light of the adjudications which have been made under them. The Text of these Statutes is so essential to an under- standing of the subject, that we reproduce, for convenience, the more material portions of them in a note.^ ^ Section 639 of the Eevised Statutes is as follows: "Any suit com- menced in any State court, wherein the amount in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, to be made to appear to the satisfaction of said court, may be removed for trial into the Circuit court for the district where such suit is pending, next to be held after the filing of tlie petition for such removal hereinafter men- tioned, in the cases and in the manner stated in this section. " First. When the suit is against an alien, or is by a citizen of the State wherein it is brought, and against a citizen of another State, it may be removed on the petition of such defendant, filed in said state court at the time of entering his appearance in said State court." [This is, sub- stantially, section 12 of the Judiciary Act.] " Second. When the suit is against an alien and a citizen of the State wherein it is brought, or is by a citizen of such State against a citizen of the same and a citizen of another State, it may be so removed, as against said alien or citizen of another State, upon the petition of such defend- ant, filed at any time before the trial or final hearing of the cause, if, so far as it relates to him, it is brought for the purpose of restraining or enjoining him, or is a suit 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. But such removal shaU not take away or prejudice the right of the plaintiff to proceed at the same time with the suit in tha State court, as against the other defendants." [This is, substantiaUy, the Act of July 27, 1866.] '■^ Third. When a suit is between a citizen of the State in which it is brought, and a citizen of another State, It may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if before or at the time of filing said petition he makes and files in said State court an affidavit stating that he has reason to believe, and does believe that, from preju- dice or local influence, he wiU not be able to obtain justice in such State 10 REMOVAL, OF CAUSES. CI-I AFTER III. VALIDITY OF THE REMOVAL ACTS RIGHTS PROTECTED FROM INVASION OE DENIAL BY THE STATES. § 9 . The Power of Congress to authorize the transfer of cases, tH) which the Federal judicial power confeired by the Constitution extends, from the State courts to the Federal courts, has been frequently declared by the Supreme Court, and the constitutionality of the Eemoval Acts of 1789, 1833, 1863, 1866 and 1867, is established beyond question. " The validity of this legislation," says Mr. Justice Field, " is not open to serious question, and the provisions adopted court." [This is, substantially, the Act of March 2, 1867.] Section 639 of the Re^dsed Statutes continues as follows : "In order to such removal, the petitioner in the cases aforesaid must, at the time of filing his petition tlierefor, offer in said State court good and sufficient surety for his entering in such Circuit court, on the first day of its ses- sion, copies of said process against him, and of all pleadings, deposi- tions, testimony and other proceedings in the cause, or, in said cases where a citizen of the State in which the suit is brought is a defendant, copies of all process, pleadings, depositions, testimony, and other pro- ceedings in the cause concerning or affecting the petitioner, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein. It shall thereupon be the duty of the State court to accept the surety and to proceed no further in the cause against the petitioner, and any bail that may have been originally taken shall be discharged. When the said copies are entered as aforesaid in the Circuit court, the cause shall there proceed in the same manner as if it had been brought there by original process, and the copies of pleadings shall have the same force and effect, in every respect and for every purpose, as the original pleadings would have had by the laws and practice of the courts of such State if the cause had remained in the •State court." Act of March 3, 1875. The second and third sections of this Act in re- lation to the removal of actions are as follows : " § 2. That any suit of a civil nature, at law or in equity, now pending or hereafter brought iu any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Consti- tution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between REMOVAL OF CAUSES. 11 have been recognized and followed, with scarcely an excep- tion, by the Federal and State courts since the establishment of the government."^ § 10. In this connection, it may also be observed that the right to remove cases into the Federal court, when the citizens of different States, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens or subjects, either party may remove said suit into the Circuit court of the United States for the proper district; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, maj"^ remove said suit to the Circuit court of the United States for the proper district." "§ 3. Bemoval — Proceedings. — That whenever either party, or any one •or more of the plaintiffs or defendants entitled to remove any suits men- tioned in the next preceding section, shall desire to remove such suit from a State court to the Circuit court of the United States, he or they may mate and tile a petition in such suit in such State court before or at the term at which said cause could be first tried and before the trial thereof, for the removal of such suit into the Circuit court to be held in the district where such suit is peading, and shall make and tile therewith a bond, with good and sufficient surety, for his or their entering in such Circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said Circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for there appearing and entering special bail in such suit, if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged ; and the said copy being en- tered as aforesaid in said Circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally com- menced in the said Circuit court," etc., etc. ^ Gaines v. Fuentes, et al., U. S. Sup. Court, Oct. Term, 1875, 3 Cent. L. J. 371; s. c. 92 U. S. 10; Tennessee v. Davis, 100 U. S. 257; s. c, 10 Cent. L. J. 251; State v. Hoskins, 77 N. C. .530; State v. Deaver, 77 N". C. 555. See also Sewing Machine Companies' Case, 18 Wall. 553; John- eon V. Monell, I VVooUv. 394; Meadow Valley Co. v. Dodds, 7 Nev. 143; Chicago, etc. Eailway Co. v. Whitton's Admr., 13 Wall. 270; The Mayor V. Cooper, 6 Wall. 247; Strauder v. West Virginia, 100 U. S. 303; s. c, 10 Cent. L. J. 225;Barrowv. Huntoon, 99 U. S. 80 (1878) ; BaltimoreE. E. Co. V. Cary,28 Ohio St. 208 ri877) ; Owen v. New York Life Ins. Co., 1 Hughes, 322 (1877) ; Assurance Co. v. Pierce, 27 Ohio St. 155. Contra, Continental Ins. Co. v. Kasey, 27 Graft. (Va.) 216 (1876). 12 REMOVAL OP CAUSES. terms upon which the right is given by the Acts of Congress in that behalf are complied with, can not be defeated by State legislation. Therefore, a State statute which allows a for- eign corporation to do business in the State only on con- dition that it will agree not to remove suits against it to the Federal courts, is unconstitutional, and such an agreement, though entered into by the company, is void.^ But pro- visions of such a statute, authorizing and requiring the Secretary of State to revoke the license of any corpo- ration which shall ask a removal of a cause in violation of its provisions, are not inoperative, but may be carried out by the Secretary of State, or enforced by the State judici- ary. The effect of the statute is that foreign corporations must forego the right to remove causes to Federal courts, or cease to do business within the State. As the State Legisla- ture has the right to exclude foreign corporations, the means of enforcing such exclusion, or the motives of such action, will not be inquired into by a court of the United States.^ CHAPTEE IV. MATERIAL ELEMENTS OF THE EIGHT, AS GIVEN BY THE PRINCIPAL STATUTES. § 11. The Material Elements of the Statutes on this sub- ject, it will be perceived, are the nature of the suits which may be removed ; the amount or value in dispute ; \he parties ^ Insurance Co. v. Morse, 20 Wall. 445. See also Insurance Co. v. Dunn, 19 Wall. 214; Gordon v. Longest, 16 Pet. 97; Kanouse v. Martin, 14 How. 2.3; s. c, 15 How. 198; Stevens v. Phoenix Insurance Co., 41 IST. Y. 149; Holden v. Putnam Insurance Co., 4G N. Y. 1; Hadley v. Dun- lap, 10 Ohio St. 1. Home Insurance Co. v. Davis, 29 Mich. 238, is in- consistent with Insurance Co. v. Morse, supra. In Hartford Fire Ins. Co. V. Doyle (West. Dist. Wis., Hoplilns, J.), 3 Cent. L. J. 41, an aet of the legislature of the State, making it the duty of the Secretary of State to revoke licenses of companies for removing suits to Federal courts, was held void, and such revocation restrained by injunction. But see Doyle v. Continental Ins. Co., 94 U. S. 535, referred to infra. 2 Doyle V. Continental Ins. Co., 94 U. S. 535; State v. Doyle 40 Wis. 220. REMOVAL OF CAUSES. 13 to the suit, and in bhis connection the party entitled to the removal ; the time when the application must be made ; the mode of making the application, and herein of the surety or hond, etc., required, and the effect on the jurisdiction of the State court and of the Federal court of a proper appli- cation to remove a cause which is removable. CHAPTEE V. THE 12th section OF THE JUDICIARY ACT. § 12. Before entering in detail upon the several elements of the removal enactments, it is advisable to advert to some general considerations touching these several statutes. We commence with /Section 12 of the Judiciary Act. The reader may recur to its language as re-enacted in sub- stance in the Revised Statutes, given in a note to a preced- ing section ; and it is important to remember that from 1789 until the Act of July 27, 1866, above mentioned, the 12th section of the Judiciary Act was the only statute authoriz- ing the removal of causes from the State courts to the Cir- cuit court of the United States, on the ground of citizen- ship of the parties. § 13. Section 12 of the Judiciary Act, omitting the case of aliens, authorized the removal by the defendant (under limitations therein mentioned), where the suit is commenced in the State court " hy a citizen of the State in which the suitishrought, against a citizen of another State." Thatis, if the suit is by a resident plaintiff, the non-resident defend- ant may have it removed ; but the resident plaintiff could not. Under section 11 of the Judiciary Act as to original suits in the Circuit court, a non-resident plaintiff might sue in the Circuit court a resident defendant ; but if the non- resident plaintiff elected to sue in a State court, section 12 of that Act gave neither party the right to remove the cause from the State court to a court of the United States. The 14 REMOVAL OF CAUSES. plaintiff was not given the right, because he had voluntarily- selected the State court in which to bring his action ; the defendant was not given the right, because it was not sup- posed that he would have any grounds to object that he was sued in the courts of his own State. So that the right of removal by the 12th section of the Judiciary Act is limited to the non-resident citizen when sued by a resident plaintiff in the courts of the State. By section 11 of the Judiciary Act, the Circuit court lias jurisdiction when the suit is be- tween a citizen of the State in which it is brought and a citi- zen of another State. This was construed by tlie courts tO' mean that, if there were several plaintiffs and several de- fendants, each one of each class must possess the requisite character as to citizenship.^ For example, a citizen of New York and a citizen of Georgia could not join as plaintiffs in suing in New York a citizen of Massachusetts, if found in New York, because the plaintiffs were not each competent to sue ; for the citizen of Georgia could not, under section 11 of the Judiciary Act, sue a citizen of Massachusetts in New York.^ Some of the more important cases touching the jurisdiction of the Circuit court under the 11th section of the Judiciary Act, and concerning the effect of the Act of 1839 (5 Stats, at Large, 321), which relates to suits commenced in the Circuit court, are referred to in the note, as they have a bearing on the construction of the 12thi section.'' 1 Stra-wbridge v. Curtiss, 3 Cranch, 267 ; Coal Co. v. Blatchford, 11 Wall. 172. 2 Moffat V. Soley, 2 Paine, C. 0. 103. This restriction on the jurisdic- tion of the Federal courts is removed by the Act of March 3, 1875, and now these courts would have jurisdiction of such a suit as that men- tioned in the text. ' The case of the Commercial Bank v. Slocomb, 14 Pet. 60 (except so- far as it has been since overruled as to the suability of corporations in the Federal courts) , holds, and only holds, that under the Judiciary Act the jurisdiction of the Circuit court is defeated if some of the defendants are citizens of the same State with the plaintiff; and that this principle wa& not changed by the Act of February 28, 1839. Same principle affirmed, at the same term, in a case rightly decided, Ii-vine v. Lowry, 14 Pet. REMOVAL OP CAUSES. 15 § 14. But it should be borne in mind tliat in cases re- moved from the State courts the jurisdiction of the Circuit court is dependent upon the act tender which the suit is re- moved, and not upon the legislation which confers jurisdic- tion upon that court in cases originally brought therein ; and therefore the restrictions on the jurisdiction in the 11th sec- tion of the Judiciary Act have no application to cases re- moved under the 12th section of that Act.^ § 15. Under section 12 of the Judiciary Act regulating removals, it is settled that a cause can not be removed thereunder unless all the defendants ask for it; that to 293. See, also, Clearwater v. Meredith, 21 How. 489. In Taylor v. Cook et al., 2 McLean, 516, the plaintiffs were citizens of New York, and brought suit in the Circuit court of the United States in Illinois against Cook, a citizen of Illinois, and Spaulding, a citizen of Missouri, who entered a voluntary appearance, and the question ^vas, whether the court had jurisdiction, and, aided by the Act of 1839, it was held that it had. Judge McLean, in delivering his opinion says, arguendo, that prior to the Act of 1839, and under the 11th section of the Judiciary Act limiting the jurisdiction to suits between -'a citizen of the State where the suit is brought and a citizen of another State," as construed, "the court could not take jurisdiction of the case ; for as between the plaintiffs who are citizens of New York, and the defendant, Spaulding, who is a citizen of Missouri, the court could exercise no jurisdiction in the State of Illinois ; because in that case neither party would reside in the State where suit is brought." But see contra, the observations, arguendo, of Wayne, J., in Louisville Eaih'oad Company v. Letson, 2 Howard, on pp> 553, 554, in which he concludes that it is not necessary under the Judici- ary Act that all of the defendants should be citizens of the same State, provided none of them are citizens of the same State with the plaintiff. (See infra, Chapter 10.) The joinder of a defendant not served, and who does not appear, who is a citizen of the same State with the plaintiff, does not defeat the jurisdiction of the Ch-cuit court; at all events, it does not since the Act of 1839. Doremas v. Bennett, 4 McLean, 224. But the joinder of such a defendant who is served, if he be not a mere nominal defendant, does defeat the jurisdiction ; at all events, it did prior to the Act of March 3,1875. Ketchum v. Tanners' etc. Co., 4 McLean, 1; Coal Co. v. Blatchford, 11 Wall. 172; Sewing Machine Cos.' Case, 18 Wall. 553. i Green v. Custard, 23 How. 484; Barclay v. Levee Commissioners, 1 Woods, C. C. 254; Bushnell v. Kennedy, 9 Wall. 387; Sands v. Smith, 1 Dillon, 293, 297; Sayles v. N. W. Ins. Co., 2 Curtis, C. C. 212; Gaines v. Puentes, U. S. Sup. Court, Oct. Term, 1875, 2 Otto, 10, 3 Cent. L. J. 271; Winans v. McKean, etc. Nav. Co., 6Blatchf. 215. 16 EEMOVAL or CAUSES. bring the case within the Act, all the plaintiffs must be citi- zens of the State in which suit is brought, and all of the de- fendants must be citizens of some other State or States} But this rule, we may remark in passing, does not apply to persons who are mere nominal or formal parties.'' 2 Beardsley v. Ton-ey, 4 Wash. 286, (1822) ; Ward v. Arredondo, 1 Paine, 410, (1825) ; Hubbard v. E. E. Co., 3 Blatchf. 84; s. c, 25 Vt. 715, (1853) ; Beery v. Irlck, 22 Gratt. 484; Ex parte G-irard, 3 Wall. Jr. 263; Smith v. Eines, 2 Sumn. 330; Hazard v. Durant, 9 E. I. 602; In re Turner, 3 Wall. Jr. 260; lb. 263; Perkins v. Morgan, 27 La. Ann. 229, (1875) . Goodrich v. Hunton, 29 La. Ann. 372. 3 Browne v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheat. 421; Ward v. Arredondo, supra; Wood v. Davis, 18 How. 467. Who are nominal parties and who are not, see also Bixby v. Couse, 8 Blatchf. 73; Coal Co. v. Blatchf ord, 11 Wall. 172; Davis v. Gray, 16 Wall. 220; Weed Sewing Machine Co. v. Wicks, 3 Dillon, 261, 266; Knapp v. Troy & Bpston E. E. Co., Sup. Court, Oct. Term, 1873, 20 Wall. 117; where the cases are cited by Mr. Justice Davis. In this last case, the learned judge speaking of the Eemoval Act of 1867, says : " It does not change the settled rule that determines who are to be regarded as the plaintiff and the defendant; and as the plaintiff and defendant in this action were both citizens of New York, the Circuit court has no jurisdiction to en- tertain it." 20 Wall. 124. The fact that defendants are named who have not been served, or have not appeared, and who are citizens of the same State with the plaintiff, will not defeat the right of removal. Ez parte GixwcA,^ WaU. Jr. 263, (1858), Grier, J. Nominal parties, or persons made parties who are not necessary to a determination of the real controversy, vnll not defeat the right to a removal. Mayor etc. v. Cummins, 47 Ga. 321 (1872) ; Wood v. Davis, 18 How. 467 (1855) ; Ward v. Arredondo, 1 Paine, 410 (1825) , Mr. Justice Thompson; Arrapahoe Co. v. K. P. E. E. Co., 4 Dill. 277, (1877) ; s. c, 5 Cent. L. J. 102; Calloway v. Ore Knob Co., 74 N. C. 200; Edgerton v. Gilpin, 3 Woods C. C. 277. Infra § 25, note. Garnishees are not parties to suits ; the fact that the plaintiff and garnishee are citizens of the same State is no obstacle to removal. Cook v. Whitney, 3 Woods C. C. 715. Fraudulent or improper joinder of parties to prevent removal. See Smith V. Eines, 5 Sumner, 338 ; Ex parte Girard, 3 Wall. Jr. 253. Im- proper joinder of causes of action. Cook v. State Nat. Bank, 52 N. Y. 96 (1873). Officers of a corporation, joined vnth it as defendants to a bill in equity, but as to whom no relief was prayed in their individual capacity, and no relief which was not asked as against the corporation, are nominal parties in such a sense, as not to defeat the right of removal, if the right otherwise exists. Hatch v. Ch. E. I. & P. E. E. Co., 6 Blatchf. 105 (1868). _ Jn/raJ 25, note. REMOVAL or CAUSES. 17 Omitting the case of aliens, it will be perceived that the 12th section of the Judiciary Act (now Eev. Stats., section 639, sub-division 1), gave the power of removal only under the following circumstances : 1. The plaintiff, or if more than one, then all of the plaintiffs must be citizens of the State in which the suit is brought ; 2. The defendant, or if more than one, then all of the defendants must be citizens of another State or States ; 3. It is limited to civil suits, involving, besides costs, a sum or value exceeding $500 ; 4. The right of removal is limited to the defendant or defendants, and must be exercised or applied for by all of the defendants.^ As to effect, under the Act of July 27, 1868, as to removal of cases by Federal corporations, or the joinder of defendants who do not possess the right of removal, see ante, chapter^2, and notes. 1 Smith V. Eines, 2 Sumner, 338; Beardsley v. Torrey, 4 Wash. C. C. 286; Ward v. Arredondo, 1 Paine, 410; In re Turner, 3 Wall. Jr. 260, Grier, J.; In re Girard, lb., 263; Field v. Lownsdale, IDeady, 288; Fisk V. Union Pacific E. E. Co., 6 Blatchf. 362; s. c, 8 Blatchf. 243. 299; Pat- erson v. Chapman, 13 Blatchf. 395 (1876) ; Carswell v. Schley, 59 Ga. 17 ; Girardey v. Moore, 3 Woods, C. C. 397; s. c, 5 Cent. L, J., 78; Sawyer v. Switzerland Ins. Co., 14 Blatchf. 451 ; Taylor v. Eockefeller, W. D. Pa., June 1878, Strong, J., 7|.Cent. L. J. 349; Dart v. Walker, 4 Daly (X. Y.) 188; Merwia v. Wexel, 49 How. (Pr.) Eep. (N. Y.) 115. The above cases discuss the right to and effect of successive removals by dif- ferent defendants under various Eemoval Acts. In Fallis v. McArthur, 1 Bond, 100 (1856), it was held that, where one joint defendoMt removed the suit (the other not being served) , the plaintiff was entitled to process in the Federal court against the defendant who was not served with process in the State court at the time the cause was removed. In Field v. Lownsdale, supra, Deady, J., seems to be of a dif- ferent opinion. See opinion of Mr. Justice Nelson in Fisk v. Union Pa- cific E. E. Co., 8 Blatchf. 243 (1871) ; s. c, lb. 299; 6 Id. 362. If a suit be brought by a citizen against several non-resident joint debtors in a State where the statute authorizes the plaintiff to proceed against the defendants served, and if he recover judgment, it may be enforced against the joint property of all, or the separate property of the defendants served; and if the only defendants served are citizens of another State, such defendants are entitled to remove the cause, under the Judiciary Act, though the co-defendant not served does not join in the application. Davis v. Cook, 9 Nev. 134 (1874). (2) 18 REMOVAL OF CAUSES. 5. The Petition iov the removal must be filed at the time the defendant or defendants enter their appearance in the State court.^ Hence, if some of the plaintiffs were not cit- izens of the State in which the suit was brought ; or if some of the defendants were citizens of the same State with jjlain- tiff ; or if the defendants answered or submitted to the jurisdiction of the State court before applying for the re- moval ; or if all the defendants (other than formal or nom- inal parties ) did not apply for the transfer ; or if the amount in dispute did not exceed $500 — then, and in each of these cases, there could be no removal under the Judiciary Act.^ In an action for joint indebtedness, all the joint defendants, both under the Act of July 27, 1866, and under that of March 2, 1867, must apply for the removal ; — no one can remove under the Act of 1866, unless a sepa- rate judgment can he rendered against him without the presence of the other defendants. Mervvin v. Wexel, 49 How. (Pr.) Eep. 115. 1 Entering an appearance; meaning of, construed and applied. Chat- ham Nat. Bank v. Merchants' Nat. Bank, 1 Hun (N. Y.), 702 (Sup. Court, Special Term, 1874) ; Dart v. Cook, S Nev. 134 (1874) ; Hazard v. "Durant et al., 9 K. I. 602, 606; Hough v. West. Transp. Co., 1 Biss. 425 (1864); Sweeney v. Coffin, 1 Dill, C. C. 73, Treat, J.; McBratney v. Usher, 1 Dill. C. C. 367; Vfebster v. Crothers, 1 Dill. C. C. 301 ; Pugsley V. Freedmen's Sav. Bank, 2 Tenn. Ch. 130. Other cases cited infra, chap. 15. Under section 12 of the Judiciary Act the petition need not be verified. Sweeney V. Coffin, 1 Dill. C. C. 73. As to verification and mode of removal under other Removal Acts, lb. Infra, chaps. 14, 15, 17. 2 See Infra, chaps. 8, 11, 15, 17, and cases cited. There can be no removal under the Judiciary Act (Rev. Stats., sec. 640, sub- division 1) , if tTa.Iich., Brown, J),, 3Cent. L. J. .521 (1876). 1 See Dart V. McKinuey, 9 Blatchf . 359; Akerly v. Vilas, 2Bissell, 110; Green v. Custard, 23 How. 484 ; Fisk v. Union Pacific R. R. Co., 8 Blatchf. 299; Partridge v. Ins. Co., 15 Wall. 573; Sands v. Smith, 1 Dillon, 290j, Thompson v. Railroad Cos., 6 Wall, 134; Rev. Stats., sees. 639, 914. ■60 REMOVAL OF CAUSES. CHAPTER XII. PKOM WHAT COURT THE REMOVAL MAY BE MADE REMOVAL HOW ENFORCED CERTIORARI. § 48. The language of the Eevised Statutes, sec. 639, and of the Act of March 3, 1875, is : " Any suit in any State Court," etc. In Gaines v. Fuentes, the Supreme Court of the United States held that an action, in form and pur- pose to annul a will and to recall the decree by which it was probated, brought in a State court without separate equity jurisdiction, and which is invested Avith jurisdiction over the estates of deceased persons, might be removed under the Act of 1867 to the Federal court. Speaking of the case before the Court and the Act of 1867, Mr. Justice Field observed : " This Act covered every possible case involving controversies between citizens of the State where the suit was brought and citizens of other States, if the matter in dis- pute, exclusive of costs, exceeded the sum of $500. It mattered not whether the suit was brought in a Btate court of limited or general jurisdiction The only test was, did it involve a controversy between citizens ©f the State and citi- zens of other States, and did the amount in dispute exceed a specified amount ? And a controversy was involved in the sense of the statute whenever any property or claim of the parties, capable of pecuniary estimation, was the subject of litigation, and was presented by the pleadings for judicial ■determination.^ § 49. Under the Act of March 3, 1875 (sec. 7), the Cir- cuit Court of the United States, to which any cause shall be 1 Gaines V. Fuentes et al., B Cent. L. J., 371 ; s. c, 8 Ch. Legal News, 225; s. c, 2 Otto, 10. In The Kathbone Oil Co. v. Eaiich, 5 West Va. 79 (1871), referred to infra, it was held that no motion to remove a cause •can be made before a justice of the peace, that not being a "State court" within the meaning of the Act of Congress, — but the Act of Congress as, " any State court," wliether of general or limited jurisdiction. REMOVAL OF CAUSES. 61 removable, under its provisions has power to issue a writ of certiorari to the State court, commanding that court to make return of the record in the cause ; and the clerk of the State court is subjected to criminal punishment who refuses, after tender of fees, to the party applying for the removal a copy of the record.^ 1 Certiorari — Copies of Record — Mandamus to enforce Bemoval, etc. — The only object of a certiorari is to bring the record from the State court into the Federal Court; but the writ is unnecessary, ^^■hen the record of the State court is ah-eady before the Federal court. Scott et al., Trustees, v. Clinton and Springfield E. R. Co., 8 Ch. Legal News, 210, per Drummond, J. ; s. c, 6 Bissell, 529 ; Wells, in re, 3 Woods C. C. 128 ; s.c, 17 Alb. L. J. 111. The writ of certiorari is often resorted to as the means of effecting, pursuant to law, the removal of the record of a proceeding or cause from one court to another. In England and in some of the States in this country, indictments and other proceedings are removed for trial from the lower to the higher court. Bacon's Abridg., title Certiorari; 1 Bl. Com. 320, 321 ; 1 Chitty Cr. Law, 334, 571 et seq., 387 ; State v. Gibbons,. ISouth. (N. J.), 40, 44; United States v.McKee,! Dillon CO. 1; s. c, 3 Cent. L. J., 292, on motion in arrest of judgment. Section 7 of the Act of March 3, 1875, authorizing the Circuit court to issue the writ of certiorari, provides that it shall "command the State court to make return of the record " of the cause removed, which means an exemplified copy of the record. United States v. McKee, supra. And express power is given to the Circuit court "to enforce the said writ according to law." The provision in the Act of March 3, 1875, sec. 7, in respect to cer- tiorari, only extends to " causes which shall be removable under this Act.'''' There is no similar provision as to cases removable under sec. 639 of the Revised Statutes ; but there is a provision (Eev. Stats, sec 645) , allowing copies of the record in the State court to be supplied by affida- vit or otherwise, on proof that the clerk of the State court, after demand and payment or tender of his legal fees, refuses or neglects to deliver certified copies of the records and proceedings of the State court in the cause. As to provisions in special cases, see Kevised Statutes, sees. 641, 643; Benchley v. Gilbert (suit held not removable by certiorari under sec. 67, Act of July 13, 1866), 8 Blatchf. 147. Certiorari and habeas corpus under Act of 1833, " Force Act," in respect to removal of causes. Abranches v. Schell, 4 Blatchf. 256. A defect or omission in the transcript may he cured by certiorari; if it can be«cured, it is no ground for remanding the cause to the State court. Dennis v. Alachua Co., 3 Woods C. C. 683; Cook v. Whitney, 3 Woods C. C. 715. As to order allowing copies of the papers, etc., in the State court to be '62 REMOVAL OF CAUSES. CHAPTER XIII. AS TO VALUE. § 50. In the .Removal Acts to which we have referred, namely, the Revised Statutes, section 639, and the Act of March 3, 1875, it is made an indispensable element of re- nmovability, that the amount in dispute, exclusive of costs, shall " exceed the sum or value of five hundred dollars." This language, as well as that which precedes it, is descrip- tive of the nature of suits that may be removed. The sub- ject-matter of the dispute or of the suit must be property, or money, or some right, the value of which in money is sus- ceptible of judicial ascertainment. The language descrip- tive of suits that may be removed excludes criminal cases, and controversies relating to the custody of a child, or the right to personal freedom.^ 'filed in the Federal court, where the clerk refuses to certify such copies : Akerly v. Vilas, 1 Ahb. U. S. Eep. 284; s. c, 2 Bissell, 110 (1869) ; 24 Wis. 165; Hatch v. C, E. I. & P. E. E. Co., 6 Blatchf. 105. Without express authoritj- from Congress, the Federal court can not .issue a writ of mandamus to the State court, to require it to proceed no further in the case, and to certify the case to the Federal court. It was admitted that Congress could confer such a power, but denied that it had done so by the Judiciary Act. Per Drummond, J., Hough v. West. Transp. Co.,1 Bissell, 425 (1864). Orbythe Actof July 27, 1866; 77i re Cromie, 2 Bissell, 160 (1869). Or by the Act of July 27, 1868 (Eev. Stats., sec. 640) ; Fisk v. Union Pacific E. E. Co., 6 Blatchf. 362 (1869). See on subject of mandamus and process to enforce removal of cause from State to Federal court, Spraggins v. County Court, Cooke's Eep. 160; Fx parte Turner, 3 Wall. Jr. 258, Grier, J. Proceedings in the State court after the removal of the cause will not be STATED by writ from the Federal court; if the removal was not lawfully effected, such writ is improper; if effected, it is unnecessaiy. Bell v. Dix, 491sr. Y. 232 (1872); Fisk v. Union Pacific E. E. Co., 6 Blatchf . 362. See further on this point, post, chap. 19 and note. 1 Phillips' Pr. (2d Ed.), 82; Lee v. Lee, 8 Pet. 44; Barry v. Meroien, 5 How. 103; Pratt v. Pitzhugh, 1 Black, 271; De Krafft v. Barney, 2 Black, 704; Sparrow v. Strong, 3 Wall. 97; Gaines v. Fuentes, Sup. -Court, Oct. Term, 1875, 3 Cent. L. J. 371 ; s. c, 2 Otto, 10. The suits anust relate to claims or property capable ot pecuniary estimation. lb. REMOVAL OF CAUSES. 63 It is not sufficient that the value in dispute precisely equals |500 ; it must exceed that sum or amount.^ § 51. The value of the matter in dispute, for the purposes of remov^al, is to be determined by reference to the amount claimed in the declaration, petition or bill of complaint.^ In actions on a money demand, the value in dispute is the debt and damages claimed as stated in the petition or dec- laration, and in the prayer for judgment. For example, if the action be on a note for a fixed sum, and the principal and interest and damages do not all together exceed $500, it is not removable,^ although the prayer for judgment may be for an amount greater than $500. On the other hand, in the case supposed, though the plaintiff might have been en- titled to a recovery for more than $500, yet, if the prayer for judgment be for less than that amount, the case could not be removed.* It is sufficient that the amount in dispute exceeds $500 at the time when the right to a removal accrues and is applied for — and interest, when the right thereto exists and it is claimed, ma}' be regarded in determining the amount or value in controversy.* The State court decisions, proceed- ing on a different principle, are probably unsound. 1 Walker v. United States, 4 Wall. 163 ; W. U. Tel. Co. v. Levi, 47 Ind. 552. 2 Gordon v. Longest, 16 Pet. 97; Kanoiise v. Martin, 15 How. 198, 207; Ladd V. Tudor, 5 Woodb. & Minot, 325; Mans v. Dupont, 2 Wash. C. C. 463 ; Bennett v. Butterworth (detinue) , 8 How. 124 ; Peyton v. Kobert- son (replevin) , 9 Wheat. 527 ; United States v. McDowell (penal bonds) , 4Cranch, 316; Martin v. Taylor (penalty), 1 Wash. 0. C. 1; Postmaster- General v. Cross (penal bond), 4 Wash. C. C. 326; King v. Wilson (ille- gal taxes), 1 Dillon, 555; Hartshorn v. Wright (ejectment), 1 Pet. 0. C. 64; Crawford, V. Burnham (ejectment), 4 Am. Law Times, 228; W. U. Tel. Co. V. Levi, 47 Ind. 552; Sherman v. Clarlj, 3 McLean, 91. The amount in controversy must be affirmatively sliown. Keith v. Levi, West. Dist. of Mo., 2 Fed. Eep. 743, McCrary, J. 3 See Lee v. Watson, 1 Wall. 337. 4 MoGinnity v. White, 3 Dillon, 350; Bank, etc. v. Daniel, 12 Pet. 32; Merrill v. Petty, 16 Wall. 338. 64 REMOVAL or CAUSES. In actions sounding in tort, the damages laid by the iilain- tiff are the amount of the matter in dispute.^ A new and interesting point, under the second section of the Act of March 3, 1875, was recently (Nov. 1880) de- cided in Clarhson v. Manson, by Mr. Circuit Judge Blatch- FORD, who held that, where an action is brought in a State court for an amount less than $500, and the defendant in his answer j)leads a counterclaim exceeding the sum of $500, Avhich is replied to by the plaintiffs,— on an applica- tion by the defendant for removal from the State to a Fed- eral court, the counterclaim must be considered, and that the matter in dispute exceeds |500, and that the defendant was entitled to remove the whole suit.^ 1 Hulsecamp v. Teel, 2 Dallas, 358 ; Gordon v. Longest, 16 Pet. 97 ; West. Union Tel. Co. v. Levi, 47 Ind. 552. 2 The learned judge thus states the facts and legislation applicable to the question presented : Blatchford, J.— The plaintiff brought this suit against the defendant in the Marine Court of the City of New York, to recover the sum of $195 as the balance unpaid on a sale of the fixtures of a store and bake-house. The answer put in, in the State court, sets up that the plaintiffs, with in- tent to defraud, falsely represented to the defendants that the bake- house was a profitable business place, and that one Ott, a former pro- prietor of it, had done a profitable business at it, and thus induced the defendant to hire the store; that the plaintiffs also represented that they owned the store and the bakery fixtures in it, and offered to sell them to him ; that he, to secure for one day the right to purchase them, paid to plaintiffs $5. as a deposit, on the agreement that if he was not satisfied with the fixtures, the $5 should be forfeited; that the defendant, not being satisfied with the store and fixtures, immediately notified the plaintiffs thereof; that the place had never been a profitable business place for a bakery; that Ott closed it because he could not make it pay the expense of keeping it; that the fixtures were mortgaged and were owned by Ott, and not by the plaintiffs; that the plaintiffs knew this ; that the defendant, relying on said representations and believing them to be ti'ue, rented the store and furnished it with new fixtures, and made repairs in it, and fitted it up at great expense, and hired help to conduct the business of the bakery; and that he has not realized any moneys from the business carried on at the place, and was unable to make the business pay expenses, but was obliged to close it, to his damage $750, which he sets up as a counterclaim against the plaintiffs. The answer denies all the allegations of the complaint not thus admitted or denied. REMOVAL OF CAUSES. 65 § 52. Where the right to a removal has become perfect and complete, it is not in the power of the other party to and demands judgment against the plaintiffs, tha'^ the complaint be dis- missed with costs, and that he have judgment against the plaintiffs for $750. This answer was put in September 13, 1880. A reply, sworn to September 15, 1880, was put in by the plaintiff, replying " to the allega'- tions of counterclaim contained in the answer," and denying each and every of said allegations. A petition was duly presented by the defendant to the State court, praying " that the said suit may be removed " to the Federal court. The question was whether the cause was removable. The 2d section of the Act of 1875 provides that " any suit * * * where the matter in dis- pute exceeds, exclusive of costs, the sum or value of '$500,' in which there shall be a controversy betvy^een citizens of different States * * * either party may remove said suit." The defendant here contends that the matter in dispute, on the issue raised by the counterclaim in the an- swer, and the reply thereto, exceeds $500, exclusive of costs; that there is a controversy in regard to such matter, made a controversy exclu- sively by the plaintiff, by his reply to the counterclaim ; and that on this ground the defendant can remove the whole suit into this court. Under the New York Code of Civil Procedure (sec. 500) an answer may contain a counterclaim, that is, a statement of new matter consti- tuting a counterclaim. Such counterclaim (sec. 501) must tend in some way to diminish or defeat the plaintiffs recovery, and must be one of certain specified causes of action. A plaintiff may (sec. 49-t, 495, 496) demur to a counterclaim, distinctly specifying the objections, one of which may be that the counterclaim is not of the character specified in section 501 . Where a counterclaim is established which equals the plain- tiff's demand, judgment goes for the defendant. Where it is less than the plaintiff's demand, the plaintiff has judgment for the residue. Where it exceeds the plaintiff's demand, the defendant has judgment for the excess, or so much thereof as is due from the plaintiff (sec. 503). The plaintiff, if he does not demur, may reply to the counterclaim, deny- ing what he controverts (sec. 514) . The statutes of New York use the word " action," and discard all other terms. The proceeding by the defendant agaiast the plaintiffs, being a civil action, is a suit of a civil nature, and the matter in dispute in it exceeds, exclusive of costs, the sum or value of $500. It is brought in the State court, under the authority of the statute of New York, in the form in which it is brought, although the defendant is turned into a plaintiff and the plaintiff into a defendant, and jurisdiction of the per- son of the plaintiff is obtained by the fact that the plaintiff came into court and brought the defendant in first, in the action brought by the plain- tiff. It clearly makes a case for removal. But what is to be removed? The Act of 1875 says that " said suit " is to be removed. Is the proceed- (5) 66 REMOVAL OF CAUSES. defeat it in either court by release or hy amendment of 'peti- tion and declaring for less than five hundred dollars.^ It is made a condition of the right to an appeal or writ of error to the Supreme Court, that the ' ' matter in dispute ex- ceeds the sum or value of two (now five) thousand dollars, exclusive of costs." The cases arising under this clause are collected and accurately stated by Mr. Phillips,^ and will be found, in many instances, applicable to questions arising in this regard under the Removal Acts. In leaving this point, we may be permitted to observe that in our judgment the most serious objection to the Removal Acts, as they now exist, is the small amount required to authorize a removal. In view of the inconvenience and ex pense of litigatiug in the Federal courts, held often more than one hundred miles distant from the residence of the parties ; the crowded state of their dockets ; and consider ing that removals, especially by foreign insurance and rail way corporations, often have the effect to delay, if not to oppress, those having claims against them, it is quite clear that the amount to justify a removal should be enlarged, or the Federal courts multiplied, or at all events their judicial force increased. ing or action by the defendant, his affirmative claim, the only thing that is to he removed, leaving the claim of the plaintiffs to he litigated in the State court, the former claim heing $750, and the latter $195. In view of the facts, that the suit is in form one brought by the plaintiffs against the defendant, and includes the plaintiffs' claim, by the volun- tarjr act of the plaintiffs, and is made to include the defendant's claim ' by the operation of the statute of New York; and that thus there is but one suit, though there are two controversies in it, and that the whole suit is to be removed, and that either party may remove it, and that the counterclaim necessarily " must tend in some way to diminish or defeat the plaintiffs' recovery," it follows that the whole suit is removed, In- cluding all the issues, by the complaint, the answer and counterclaim and the reply. The motion of the plaintiff to remand is denied. As to removal of Ceoss-Bills in Equity suits, see supra, section 42, note. 1 Kanouse v. Martin, 15 How. 198; Wright v. Wells, 1 Pet. C. C. 220; Green v. Custard, 23 How. 468 ; Boberts v. Nelson, 8 Blatchf. 74. Practice of the Supreme Court, chap. VIII. REMOVAL OF CAUSES. 67 CHAPTER XIV. PARTY ENTITLED TO A REMOVAL CITIZENSHIP CORPORA- TIONS ALIENS. § 53. Under the 12th section of the Judiciary Act, omit- ting the case of aliens, the right of removal is limited, as we have shown, to the non-resident defendant, when sued by a resident plaintiff. Under the Act of 1866 it is limited, as we have seen, under the restrictions therein imposed, to the non-resident defendant, and it is not given either to the resident defendant or to the resident plaintiff. Under the Act of 1867 the right is given, as above shown, under the enumerated conditions, to the plaintiff or defendant ; but in either case it is only the non-resident citizen who can re- move the case.^ 1 Citizenship of a State^ for the purpose of conferring Federal jurisdic- tion, has reference to domicile and resilience, not the right of suffrage. D'Wolf V. Eabaud, 1 Pet. 476: s. c, Paine C. U. 580; Case v. Clarke, 5 Mason O. C. 70; Cooper v. Galbraith, 3 Wash. C. C. 546; Shelton v. Tiffin, 6 How. 163; Lanz v. Eandall (Dist. Minn., Miller, J), 3 Cent. L. J. 6SS; 4 Dillon, 425 (1876). Effect of bona fide change of domicile. Jones v. League, 18 How. 76; Morgan's Heirs v. Morgan, 2 Wheat. 290; United States V. Myers, 2 Brock. 516. Under the Act of Congress of 1875, providing for the removal of causes into the United States Circuit Court, a defendant may remove a suit brought against him in a State court by an assignee of the claim sued on, the assigjiee being a citizen of another State, though the assignor, in whose favor the debt was contracted, belonged to the same State as the defend- ant. Waterbury v. City of Laredo, 3 Woods C. C. 371 ; Leutze v. But- terfield, 7 Daly QS. Y.) 24, (1877). A State can not make the subject of a foreign government a citizen of the United States ; and resident unnaturalized foreigners may remove causes to the Federal court on the ground that they are aliens, although by State laws they may vote at elections or hold office under the State govern- ment. Lanz V. Kandall (Dist. Minn., Mr. Justice Miller), 4 Dillon, 425; s. c, 3 Cent. L. J., 688 (1876) ; ante, chap. 6, note. When the landlord or real owner assumes the defense, he makes himself a party, and, being the real defendant, has the right under the Act of 1875 to remove the cause to the Federal court, if he be a citizen of a State other than that of the plaintiff. Greene v. Klinger, W. D. Tex., Duval, J., 68 • REMOVAL OF CAUSES. § 54. Where' the jurisdiction of the Federal court depends on citizenship, it is the citizenship of the parties to the record that is alone considered, and not of those who, although not parties, may be beneficially interested in the litigation. This rule applies to executors and administra- tors and trustees.^ § 55. Corporations, created by the States, are within all the Removal Acts under consideration ; and after much un- certainty and fluctuation of opinion in the Supreme Court of the United States, the settled rule now is that a corpora- (1879), 10 Cent. L. J., 47. Such application to remove is in time, if made on the day after lie becomes a defendant, though this be not the first term to which the suit was brought, provided the cause had not been previously at issue or ready for trial. lb. ^ It the administrator or executor and the defendant are citizens of the same State, the Federal court has no jurisdiction, although the intestate or testator was a citizen of a different State. Coal Co. v. Blatchford, 11 AVall. 172; Dodge v. Perkins, 4 Mason C. C. 435; Childress v. Emory, 8 Wheat. 642; Carter v. Treadwell, 3 Story C. C. 25; Green's Administra- trix V. Creighton, 23 How. 90. If the action is by or against the deceased, the executor or administrator may prosecute or defend it without refer- ence to his own citizenship. Clarke v. Mathewson, 12 Pet. 164; s. c, below, 2 Sumner C. C. 262. The citizenship of executors is determined by the State of which they are citizens ; and the circumstance that they have taken out letters in another State does not make them citizens of such State. Amory v. Amory, 36 N. Y. Superior Court Kep. (4 Jones & Spen- cer), 520(1874); Geyerv. Lifelns. Co., 50 N.H. 224 (1870). The right to remove a cause, if founded on the citizenship of parties, depends upon their citizenship as pertons. A petition in a suit brought by executors, which alleged that the plaintiffs, as such executors, etc., are citizens, etc., is insufficient. Armory v. Armory, 95 U. S.186 (1877). If he re- move to another State and become, in respect of jurisdiction, a citizen thereof, he may sue in the Circuit court of the State in which his let- ters were granted. Kice v. Houston, 13 Wall. 66. Citizenship of trustees. Bonnafee v. Williams, 3 How. 574; Coal Co. v. Blatchford, 11 Wall. 172; Gardner v. Brown, 21 Wall. 36; Thompson v. Eailroad Companies, 6 Wall. 134; Weed Sewing Machine Co. v. Wicks et al., 3 Dillon, 261 ; BushneU v. Kennedy, 9 WaU. 391 ; Act June 1, 1872, 17 Stats, at Large, 197, § 5; Eev. Stats., § 914; Wood v. Davis, 18 How. 467; Knapp v. Railroad Co., 20 Wall. 117. Compare Suydam v. Ewing, 2 Blatchf. 359, as to which quaere. Who are to be regarded as parties to a bill in equity, filed by the com- plainant in behalf of himself and such others as might come in and become parties, see Hazard v. Durant, 9 E. I. 602 (1868). REMOVAL OF CAUSES. 69 tion, for all purposes of Fedei-al jurisdiction, is conclusively considered as if it were a citizen of the State which created it, and no averment or proof as to citizenship of its mem- bers elsewhere is competent or material.^ 1 Kailroad Co. v. Harris, 12 Wall. 65, 81 ; Eailroad Co. v. Whitton, 13 Wall. 270, 285; Louisville, etc. K. R. Co. v. Letson,2 How. 497; Marshall V. The Baltimore & Ohio Railroad Co., 16 How. 314; The CovingtOB Drawbridge Company v. Shepherd et al., 20 How. 232; Ohio & Missis- sippi Railroad Company v. Wheeler, 1 Black, 286; Trust Company v. Maquillan (Act of 1867) 3 Dillon, 379; Minnett v. Milwaul^ee & St. Paul Railway Co. (Act of 1867), 3 Dillon, 460; Baltimore & OhioR. R. Co. V. Cary, 28 Ohio St., 208; Shaft v. Phoenix Life Ins. Co., 67N. Y. 544; Quigley v. Central, etc. R. R. Co., 11 Nev. 350 (1876). It can also be " a citizen of anotlier State " within the meaning of the Act of Marcli 2, 1867. Quigley V. Central, etc. R. E. Co., 11 Nev. 350 (1876). As to the effect on Federal jurisdiction (where it is dependent upon the citizenship of the parties), of charters granted by different States to the same company or to companies constructing the same line of road, and as to the effect of consolidation on the jurisdiction of the Federal courts, the following are the principal cases: Ohio rfe Mississippi R. R. Co. v. Wheeler,! Blaclf, 286; Baltimore & Ohio R. R. Co. V.Harris, 12 Wall, 65; Ch. & N. W. R. R. Co. V. Whitton, 13WaU, 270; Williams v. M. K. & T. Railway Co., 3DiUon,267. See also, Marshall v. B. & O. R. R. Co., 16 How. 314; B. & O. R.R. Co. V. Gallahue's Administrator, 12 Grattau, 658; Goshorn v. Supervisors, 1 West Va.,308; Minotv.Phila.,Wil. &B. R. R. Co., 2 Abb. U. S. R. 323. See Chicago & Northwestern Railroad Co. v. Chicago & Pacific Railroad Co., 8 Chicago Legal News (Nov. 14, 1874), 57, (s. c, 6 Bissell, 219), decided by Circuit Judge Drummond, as to the effect of consolidation under charters of different States and the citizenship of the consolidated company. In Virginia, it is held that a railroad company, operating a road in that State as lessee, has no right to remove an action brought by representa- tives of a passenger killed, merely because the company is chartered by another State. Baltimore, etc. R. R. Co. v. Wightmau, 29 Gratt. 431 (1877). Compare with cases above cited. In Ohio, it is held, that under the clause of the Constitution of the United States, extend- ing the judicial power of the United States to controversies be- tween citizens of different States, a corporation, in respect to the jurisdiction of the Federal courts, is to be regarded as a citizen of the State where it was created ; and that a foreign railroad corporation, by merely leasing, possessing and operating in this State, tlie property of a domestic railroad corporation, does not thereby become an Ohio corpo- ration, nor such citizen of the State. Hence, when a corporation of another State, not being a citizen of Ohio, is sued by a citizen of the State, in the State court, it is entitled to have the case, under the 12th sec- 70 REMOVAL OF CAUSES. The same principle applies to public and municipal corpo- rations — they are for jurisdictional purposes, necessarily, cit- izens of the State under whose laws they are created and organized.^ tion of the Judiciary Act of Congress of 1789, removed from the State court to a United States court. B. & 0. K. K. Co v. Cary, 28 Ohio St., 208. The right of one of the class of corporations mentioned in sec- tion 640 of the Revised Statutes, when sued in a State court, to remove the cause to the Federal court, does not depend upon the citizenship of the parties. Under said section, the defendant may remove the cause, nothwithstandiug the State is the plaintiff in the action. Texas v. Texas &Paciflc E. R. Co., 3 Woods C. C, 308. What is a sufficient statement and averment of the citisenship of corpo- rations to sustain Federal jurisdiction : Expi-ess Company v. Kountze, 8 Wall. 342; lus. Co. v. Francis, 11 Wall. 210; Manuf. Bank v. Baack, 8 Blatchf. 137; s. c, 2 Abb. U. S. Rep., 232; Covington Drawbridge Co. v. Shepherd, 20 How. 227; Piquignot v. Pa. R. E. Co., 16 How. 104; Ohio & Miss. R. E. Co. V. Wheeler, 1 Black, 286. As to the right of joint stock companies, partly bnt not fully endowed with the attributes of corporations, to sue in the Federal court, or remove cases to the Federal court on thegTound of citizenship or alienage, there is some diversity of judicial decision. The leading cases on this point are: Liverpool Ins. Co. V.Massachusetts, 10 Wall. 566; Penn. v. Quick- silver Mining Co., 10 Wall. 5.53; Dinsmore v. Phila. etc. R. R. Co., (Mc- Kennan, Circuit Judge), 3 Cent. L.J. 157; Maltz v. Am. Express Co. (Brown, J.), 3 Cent. L. J. 784. 1 Cowles V. Mercer County, 7 Wall, 118; Barclay v. Levee Commrs., 1 Woods C. C, 254. In McCoy v. Washington County, 3 Wall. Jr. C. C. 381, it was contended " that the County of Washington, merely a sub- ordinate political division of the State of Pennsylvania, is not a citizen of this State, within the meaning of the Constitution or the Act of Con- gress, and therefore not suable in this court." " To this we answer," saysGrier, J., " that, though the metaphysical entity called a corpora- tion may not be physically a citizen, yet the law is well settled, that It may sue and be sued in the courts of the United States, because it is but the name under which a number of persons, corporators and citizens, may sue and be sued. In deciding tlie question of jurisdiction, the court look behind the name, to find who are the parties really in interest. In this case, the parties to be affected by the judgment are the people of Wash- ington County. That the defendant is a municipal corporation and not a private one, furnishes a stronger reason why a citizen of another State should have his remedy In this court, and not in a county where the parties, against whom the remedy is sought, would compose the court and jury to decide their own case. This point Is therefore overruled." A State statute can not limit the liability of a municipal corporation to REMOVAL OF CAUSES. 71 § 56. A corporation of another State may remove a cause commenced by attachment of property, although the action could not, by reason of a citizenship in a legal sense out of the district, and inability to serve it within the district, be commenced by original process in the Circuit court of the United States -^ and the right to a removal in such a case is not lost by reason of such corporation having an office for the transaction of business in the State in which the suit is brought.^ Nor can such a corporation be deprived of the right of removal by State legislation.^ Incorporated bodies, chartered hy foreign countries, may remove cases Under the provisions as to aliens.^ § 57. For jui-isdictional purposes, national banks are be sued in the courts of a State, so as to affect the Federal jurisdiction. Cowlesv. Mercer County, 7 Wall. 118; Eailway Co. v. Whitton, 13 Wall. 270. 1 Bliveu V. New England Screw Co., 3 Blatchf. Ill; Barney t. Globe Bank, 5 Id. 107; Sayles v. N. W. Ins. Co., 2 Curtis, 212. A suit, in which a citizen of this State is plaintiff, and a domestic cor- poration and two citizens of Missouri are joint defendants — the corpora- tion being a citizen of this State — is not between citizens of different States, and is not removable upon the petition of the foreign defendant. Howland, etc. Works v. Brown, 13 Bush, 681. See opinion of the Supreme Court of the United States on "The Kemoval Cases," anfe, sec. 29, and printed in full in the Appendix. 2 Hatch T. Chicago etc. K. E. Co., 6 Blatchf., 105. The right of a for- eign corporation to remove a cause is not affected by the legislature of the State authorizing service of process on its agent in the State. W. U. Tel Co. V. Dickinson, 40 Ind. 444 (1872); Hobbs v. Manhattan Ins. Co., 56 Maine, 417; Morton v. Mutual Life Ins. Co., 105 Mass. 141 (1870). A foreign corporation, sued by its own assent in another State, is notwith- standing a foreign corporation, and for all purposes of Federal juris- diction a citizen of the State which created it. Pomeroy v. N. Y. & N. H. E. E.Co., 5 Blatchf. C. C. 120; Hatch v. Ch., E. I. & P. E. E. Co., 6 Blatchf. 105. 2 Chicago, etc. Eailway Co. v. Whitton's Admrs., 13 Wall. 270; ante, chap. 3, and eases cited. * Terry v. Ins. Co., 3 Dillon, 408 ; 1 Kent's Com. 348 : see also Angell & Ames on Corporations, §§ 377, 378, and 1 Abbott's U. S. Practice, 216; Fi?k V. Ch., etc. E. Co., 33 Barb. 472; 3 Abb. Pr. Eep. (N. S.) 453 ; King of Spain V. Oliver, 2 Washington C. C. 429. 72 REMOVAL OF CAUSES. deemed citizens of the State in which they are located,^ and they may sue in the Circuit court, although the defendants are citizens of the same State in which the banlc is established.^ The Act of July 27, 1868 (Eevised Statutes, sec. 640, ante, chap. 2, note), expressly excludes national banks from its provisions ; but this has been considered not to prevent the right of removal in their favor, if their case is within any of the other Eemoval Acts.^ But there is a distinction between National Banking As- sociations and the Receivers of such associations ; neither under the Eevised Statutes (sec 640), nor under the Na- tional Banking Act (sec. 57), have such receivers as such the right to remove cases from the State courts into the Federal courts.* 1 ChathaiA JSTat. Bank v. Mer. JSTat. Bank, 1 Hun, (N. Y.), 702. See, also, to the effect that for jurisdictional purposes national banks are cit- izens of the State where they are located : Davis v. Cook, 9 N"ev. 134 (1874), following Manuf. Nat. Bank v. Baack, 2 Abb. U. S. Eep. 232; s. c, 8 Blatchf. 137, and approving of the reasoning of Blatchford, J. Same point, Cook v. State National Bank, 52 N. Y. 96 (1873) ; s. c. below, 50 Barb. 339; 1 Lans. 494, holding that national banks are citizens of the State in which they are located, and may apply as such for the removal of causes. 2 Union Nat. Bank v. Chicago, 3 Ch. Legal News, 369; Bank of Omaha v. Douglas County, 3 Dillon C. C. 298; Com. Bank v. Simmons, 6 Ch. Legal News, 344. 3 In the Chatham Nat. Bank of New York v. Mer. Nat. Bank of West Va., 1 Hun (N. Y.), 702, a national bank was regarded as a citizen of the State in which it is located and does business, and the national bank of another State may remove a suit in which it is a defendant, if the case is otherwise within the 12th section of the Judiciary Act, and the applica- tion is made in time, i. e., at the time of " entering its appearance; "and this, notwithstanding the Act of July 27, 1868 (15 Stats, at Large, 226; Bev. Stats., sec. 640) excludes national banking associations from its provisions — the latter being considered as providing for a new class of cases, and not affecting the right of removal given by preceding legisla- tion. * Bird's Executors v. Coclo-em, Eeceiver, 2 Woods C. C. 52, Brad- ley, J. REMOVAL OF CAUSES. 73 CHAPTER XV. THE TIIVIB WHEN THE APPLICATION MUST BE MADE. § 58. Under the 12th section of the Judiciary Act (now Revised Statutes, sec. 639, sub-division 1), the application must be made by the defendant ' ' at the time of entering his appearance in the State court." Under this provision the defendant must promptly avail himself of this right ; and he waives it if he demurs, or pleads, or answers, or other- wise submits himself to the jurisdiction of the State com-t.^ §59. Under the Acts of 1866 and 1867 (now Revised Statutes, sec. 639, sub-divisions 2 and 3), the time is en- larged, and the petition for the removal may be made "at any time before th.Q trial or final hearing of the suit" in the State court. The word "trial" refers to cases at law — "hearing," to suits in equity.^ Under this language the petition for the removal may, it is certain, be made at any 1 West V. Aurora City, 6 Wall. 139; Sweeney v. Coffin, 1 Dillon, 73; Webster v. Crothers, 1 Dillon, 301; Johnson v. Monell, 1 Woolw. 390; McBratney v. Usher, 1 Dillon, 367, 369; Eobinson v. Potter (too late after reference and continuance) , 43 N.H. 188 ; Savings Bank v. Benton, 2 Mete. (Ky.) 240. See supra, chap. 5, and cases cited. The filing of a pleading or agreement by the defendant, duly signed by his solicitor, and making an application thereon, is the entering of an appear- ance within the Act of Congress of 1879. Pugsley v. Freedman's Sav. Bank, 2 Tenn. Ch. 130. The right of defendants, under sec. 639, sub-division 1, Eev. Stats. IT. S., to remove is gone, after one of the material defendants has taken the opinion of the State court upon a question which goes to the merits of the litigation. lb. As to the right of different defendants to remove at different times, see Smith V. Kines, 2 Sumn. 338; Ward v. Arredondo,l Paine, 410; Beards- ley V. Torrey, 4 Wash. C. C. 286; Field v. Lownsdale, 1 Deady, 288; Fisk V. Union Pacific K. E. Co., 8 Blatchf. 243, 299; supra, chap. 5, and cases cited. The State court cannot restore the right of removal by allowing an ap- pearance to be entered nunc pro tunc. Ward v. Arredondo, 1 Paine, 410 ; Gibson V. Johnson, Pet. C. C. 44. 2 Vannevar v. Bryant, 21 Wall. 41, 43, per Waite, C. J. ; s. c. below, Bryant v. Rich, 106 Mass., 180. 74 REMOVAL OF CAUSES. time before entering upon the final trial, or the hearing on the merits ; and it must be made before _final judgment in the court of original jurisdiction, and it is too late to make it after the cause has reached, and is pending in the State ap- pellate court. ^ But where a judgment against a maker and indorser of a promissory note is affirmed as to the maker, And reversed as to the indorser, granting him a new trial, he may cause a removal of the case to the Federal court, under tlie Act of July 27, 1866. ^ " Before final hearing or trial clearly means," says Mr. Justice Field, " before final judgment in the court of orig- inal jurisdiction, where the suit is brought. Whether it may not mean still more — before the hearing or trial of the 1 Stevenson V. Williams, 19 Wall. 572; Vannevar v. Bryant, 21 Wall. 41, 43; Waggener v. Cheek, 2 Dillon, 560; Kellogg v. Huglies, 3 Dillon, 357 ; Dart v. McKinney, 9 Blatchf . 359 ; Johnson v. Monell (change of residence pending suit), IWeolw., 390; Mlnnettv. Milwaukee & St. Paul Hallway Company, 3 Dillon, 460, denying Galpiii v. Critchlow, 13 Am. Law Keg. (JT. S.),137; s. c, 112 Mass. 339, and Whittier v. Hartford Ins. Co., 14 Am. Law Keg. (N. S.),12i; s. c, 55 N. H. 141; see Ins. Co. v. Dunn, 19 Wall. 214, 225; Akerly v. Vilas, 1 Ahb. U. S. Eep., 284; s. c, 2 Bissell, 110; Murray v. Justices, 9 Wall. 274; Miller v. Finn, 1 Neb. 254 (1867) ; Price v. Sommers (N. D. Ohio, Welker, J.), 8 Ch. Legal News, ■290 (1876); Fasnacht v. Frank (U. S. Sup. Court, Oct., 1874), 23WaU. 416; Craigie V. McArthur, 4 Dill., 474; 9 Ch. Legal News, 156; Lowe v. Williams, 94 U. S. 650; s. c, 4 Cent. L. J. 482; Fraser, in re, 18 Alb. L. J. 353; s.c.,7 Cent. L. J. 227. What was a " final trial " within the meaning of the Act of 1867 (Rev. Stats, sec. 639, cl. 3) , was considered in West Virginia in a case of un- lawful detainer, commenced before a justice of the peace, where judg- ment went against a citizen of another State, who appealed to the Cir- cuit court, and then applied to remove the case to the Federal court un- der the Act of 1867. The lower court denied the application, and rendered judgment against the defendant ; and, on appeal, the Court of Appeals re- versed the judgment, resting its decision upon two grounds: 1. No mo- tion to remove could have been made before the justice, that not being a " State court " within the meaning of the Act of Congress. 2. The case, on appeal from a justice, is to be tried denovo in the Circuit court, the same as if never tried, and hence there was no "final trial " within the intent of the Act of Congress. Kathbone Oil Co. v. Eauch, 5 West Va. ■79 (1871). 2 Yulee V. Vose, 99 U. S. Eep. 539, (1878). REMOVAL OP CAUSES. 75 suit has commenced, which is followed by such judgment — may be questioned ; but it is unnecessary to determine that question in this case.''^ It would seem, however, that it would be too late to defer the application , until the trial was actually entered on.- § 60. Although there is some conflict between the State and Federal courts on the point, yet the weight of the cases and the authoritative view is, that if the trial court has wholly set aside a verdict and granted a new trial, or if the State appellate court has wholly reversed the judgment and remanded the case to the court of orighuil jurisdiction for a trial de novo ; then, in either event, it is not too late under the Act of 1866 or 1867, to apply to remove the cause, as it is in the same posture as before the first trial or hearing was had.^ So a trial in a State court, after a jury has dis- 1 Stevenson v. Williams, supra ; Beery v. Irick, 22 Gratt. (Va.) , 487 (1872); Williams v. Williams, 24 La. Ann. 55; Douglas v. Caldwell (•' final hearing " what?) , 65 K. C. 248 (1871) . 2 Application for removal, under the Acts of 1866 and 1867, must be made before trial or hearing commences ; it is too late if made during the progress of the trial, and this principle is not varied bj' the fact, that during the trial an amendment of the declaration was allowed on which issue wasnotjoined at the time the petition to remove the case was filed. Adams Express Co. v. Trego, 35 Md. 47 (1871) ; see also Lewis v. Smythe (Woods, Circuit Judge) , 2 Woods C. C. 117 (1875) , referred to infra. 2 Barber v. St. Louis, etc. E. E. Co., 43 Iowa, 223; Vannevar v. Bryant, 21 Wall. 41, 43, per Waite, C. J.; s. c, 106 Mass. 180; Steven- son V. Williams, 19 Wall. 572; Waggener v. Cheek, 2 Dillon, 560 Sims V. Sims (North. Dist. New York), Blatchford, J., December, 1879 Kellogg V. Hughes, 3 Dillon, 357; Dart v. McKinney, 9 Blatchf. 359 Johnson v. Monell (change of residence pending suit) , 1 Woolw. 390 Minnett v. Milwaukee & St. Paul Eailway Co., 3 Dillon, 460, denying Oalpin v. Critchlow, 13 Am. Law Eeg. (N. S.) 137; s. c, 112 Mass. 339 and Whittier v. Hartford Ins. Co., 14 Am. Law Eeg. (N. S.) 121; ». c, 55 iS. H. 141. See Insurance Co. v. Dunn, 19 Wall. 214, 225; Akerly v. Vilas, 1 Abb. U. S. Eep. 284; s. c, 2 Bissell, 110; Murray v. Justices, 9 Wall. 274^^ Fasnaeht V. Frank, U. S. Sup. Court, Oct. 1874, supra; Dart v. Walker, 4 Daly (N. Y.), 188 (1871), also holding that under Act of 1866 or 1867 removal may be had after a reversal and order for a new trial; and this principle held applicable to Act of 1875, as to causes pend- ing when the Act was passed. Hoadley v. San Francisco, 3 Sawyer, 553(1875). 76 REMOVAL OP CAUSES. agreed, does not preclude a removal under the Acts last named. ^ § 61. The case of the Insurance Co. v. Dunn (19 Wall. 214), affords a striking illustration of the meaning of the phrase "Jinal judgment" in the Acts of 1867. The plain- 1 The cases in the State courts, holding a different doctrine from that stated in the text, are not sound expositions of the statute. The follow- ing are some of the more important of these : Hall v. Kioketts, 9 Bush (Ky.), 366 (1872); Akerly v. Vilas, 24 Wis. 165; Home Life Ins. Co. V. Dunn, 20 Ohio St. 175; Crane v. Eeeder, 28 Mich. 527 (1874); Gal- pin V. Critchlow, 112 Mass. 339 (1873) ; Chandlery. Coe, 56 K. H. 184; Continental Ins. Co. v. Kasey, 27 Graft. 216 (1876). Where the Supreme Court of a State has reversed the decree of the lower court, and remanded the cause with instructions to dismiss the bill, it is too late to apply for a removal to the Federal court under the Act of March 2, 1867. Boggs v. Willard, 3 Bissell, 256 (1872), Blodgett J.; s. c, 70 111. 315. But where the State Supreme Court has ordered a new trial, the plaintiff may dismiss and commence in the Federal court. Hazard v. Chicago, etc. K. E. Co., 4 Bissell, 453. Effect of the decis- ion of the State Supreme Court in such a case considered. lb. The case of McKinley v. Chicago & N". W. Railway Co., now in the Supreme Court of the United States on a writ of error to the Supreme Court of Iowa (44 Iowa, 314) , presents anew and interesting point. The case in the State court was for personal injury. The plaintiff had a ver- dict and judgment below. The railway company appealed to the Su- preme Court of the State, which reversed the judgment and ordered a new trial, and issued its procedendo, which was tiled within sixty days in the lower court. Thereupon the railway company in due form made and filed its petition and bond for removal of the cause to the Federal court under the Acts of 1867 and 1875. This was in vacation, and there was no order upon it. By the law of the State, causes in the Supreme Court are to he remanded for a new trial, if a new trial be ordered (Code, sec. 3206), and there is a provision for recalling a ^rooei^endo, if a petition for rehearing be filed in sixty days (Code, sec. 3201) . After the petition and bond for removal had been filed as above, but within the sixty drys, a petition for rehearing was filed in the Supreme Court of the State, and the procedendo was recalled. The railway company moved the State Supreme Court to dismiss the petition for rehearing, because the courthad no further jurisdiction of the cause, inasmuch as the same was duly removed to the Federal court, after the procedendo was filed and before it was recalled. The State Supreme Court overruled the mo- tion, and subsequently granted the rehearing and rendered judgment against the railway company, which has sued out a writ of error, which is now pending in the Supreme Court of the United States. Clark v. Delaware, etc. Canal Co., 11 Eho. Is. 36. REMOVAL OF CAUSES. 77 tiff in that case had a verdict and judgment thereon in one of the courts of Ohio. The defendant (the Insurance Com- pany), under the statute of the State, applied for a new trial, and gave bond in that behalf. This had the effect, under the statute of the State, to vacate the verdict and judgment as if a new trial had been granted, except that lien of the judgment remained as security for the jjlaintiff. When the case was in this status, the company applied to remove the cause under the Act of 1867, and it was held that there had been no final trial , that the application was in time, and that the suit was removable ; and the subse- quent judgment in the State court was i-eversed by the Su- preme Court of the United States.^ § 62. A cause cannot be removed where a verdict has been rendered, and a motion is pending to set the verdict aside. 1 In Ohio, where a case is commenced in the Court of Common Pleas, where a trial is had, and an appeal taken to the District court of the State, it is too late, under the Act of 1875, to apply to remove the case to the Federal court. Welker, J., distinguishes this case from Ins. Co. v. Dunn, 19 Wall. 214, and applies the doctrine of Stevenson v. Williams, 19 Wall. 572, and regards the hearing in the Common Pleas as -'final " within ihe meaning of the Removal Act, although the effect of the appeal is to vacate the decree and entitle the party to a trial de novo. Price v. Sommers, (North. Dist. Ohio), 8 Ch. Legal News, 290 (1876). Similar principle in respect to attempt to remove from an appellate court a case which originated in the t'rohate court, after a decision and appeal; it was held not removable. Craigie v. McArthur, 4 Dillon, 474; s. c, 9 Ch. Legal News, 156 (1876) ; s. c, 4 Cent. L. J. 237; s. c, 15 Alb. L. J. 121. The plaintiff had a judgment on a verdict ; the defendants sued out a writ of review and then applied, the judgment remaining unreversed, to re- move the cause under the Revised Statutes, sec. 639, cl. 3; held, under the legislation of the State as to effect of the first judgment and of the proceeding for review, and distinguishing the case from Ins. Co. v. Dunn (19 Wall. 214), that the cause was Lot removable at that stage. Whittier v. Hartford Fire Ins. Co., 55 N. H. 141 (1875), commented on, and its principle applied to a case where the application for removal was made after verdict set aside and a new trial granted. Chandler v. Coe, 56 N. H. 184. Contra, Minnett v. Mil. & St. Paul Railroad Co., 3 Cent. L. J. 281 ; s. c, 3 Dillon, 460, and see cases cited ante. The doctrine of Ins. Co. V. Dunn, 19 Wall. 214, re-affirmed and applied in Railroad Co. T. State of Mississippi by the Supreme Court, October Term, 1880. This case is printed at large in the Appendix to this Tract. 78 REMOVAL or CAUSES. Such a motion must be disposed of, and be granted, so that the right to a second trial is complete, before the cause can be transferred; since, says the Chief Justice, " every trial of a cause is final until, in some form, it has been vacated. Causes cannot be removed to the Circuit court for a review of the action of the State court, but only for trial. The Circuit court can not, after a trial in a State court, deter- mine whether there shall be another. That is for the State court. To authorize the removal, the action must, at the time of the application, be actually pending for trial. ^ § 63. Under the Acts of 1866 and 1867, it is sufficient, it seems, as respects citizenship, that the defendant apply- ing for the removal is, at the time of filing his petition therefor, a citizen of another State, and the plaintiff a citi- zen of the State in which the suit is brought.^ One of several defendants sued as copartners may, if the other requisites exist, have the cause removed into the Federal court, so far as concerns himself, under the Act of 1866.=- § 64. Under the Act of March 3, 1875 (sec. 3), the time for the removal is greater than under the Judiciary Act, but not so great as under the Acts of 1866 and 1867 last noticed. The Act of 1875 requires the petition in the State court to be made and filed therein ' ' before or at the term at which such cause could be fi,rst tried, and before the trial thereof." The word term as here used means, ac- cording to the construction which it has received in the 8th Judicial Circuit, the term at which, under the legislation of the State and the rules of practice pursuant thereto, the cause is first triable, i. e., subject to be tried on its merits ; not necessarily the term when, owing to press of busi- 1 Vannevar v. Bryant, 21 Wall. 41, 43 ; s. c, 106 Mass., 180; see Whit- tier V. Hartford Ins. Co., 55 N. H. 141. 2 McGinnity V. White, 3 Dillon, 350. Contra, Dart v. Walker, 4 Daly (N". Y.) 188 (1871) . See infra, chap. 16. 3 lb.; and see supra chap. 6 and chap. 11, note; Wormser v. Dahlman, 57 How Pr. 286. REMOVAL OP CAUSES. 79' ness or arrearages, it may be first reached, in its order, for actual trial. The Act gives the right of removal to either party — the resident as well as the non-resident party — and no affidavit of prejudice is required ; and it was the obvious purpose of Congress by the use of the words " he- fore or at, etc., the term at which the cause could be first tried," etc., to require the election to be taken at the first term at which, under the law, the cause was triable on its merits. The judicial construction elsewhere of the Act of 1875 is in accordance with these views.^ 1 Ames V. Colorado Central E. R. Co. (Hallett. J., February, 1877), 4 Dillon C. C. 260; s. c, 4 Cent. L. J. 199; Fulton v. Golden, 20 Alb. L. Journal (August, 1879, Nixon, J. ), 229; s. c, 9 Cent. L. J. 286; McLean V. Chicago & St. Paul R. W. Co., South. Dist. N. Y. (Blatchford, J.),. 16 Blatuhf. 319; s. c.,21 Alb. L. J. 47 (December, 1879) ; 10 Cent. L. J. 94; American Bible Society v. Grove, 101 U. S. 610 ri879) ; s. c, 10 Cent. L. J. 175 ; 21 Alb. L. J. 155 ; Huddy v. Havens, 3 Week. N. C. 432 ; s.c, 5 Cent. L. J. 66; Taylor v. Rockefeller, W. D. Pa. (1878), Strong, J. ; s. c, 7 Cent. L. J. 349; Murray v. Holden, 2 Fed. Rep. 740, McCrary^ J. See also on this point, BlackYtfell v. Braun, 1 Fed. Rep. 351 (Dist. of Md., January 16th, 1880); Whitehouse v. Ins. Cos. (E. D. Pa., 1880), 2 Fed. Rep. 498. Gurnee v. County of Brunswick, 1 Hughes, 270, fol- lowed Forrest v. Edwin Forrest Home, 1 Fed. Rep., March, 1880 (S. Dist.- X. T., Blatchford, J.) In an action in a State court to foreclose a mortgage, only two of the de- fendants appeared. At the time of their appearance they filed a bond and petition for removal on the ground that they were residents of Iowa, and plaintiff a resident of New York. The petition set forth that the con- troversy was only between plaintiff and petitioners. Held, that a re- moval was flot authorized. The effect of a removal would be to divide- ■ the suit into two parts, one to be determined in the State, and the other- in the Federal court; and further, under the Act of March 3, 1875, which, provides for a removal " in any suit of a civil nature in which there shall be a controversy between citizens of different States," it shonld appear that there is a controversy. The defendants in this case, who sought a' removal, did not answer a petition or demur thereto, and the record does not show that there is any controversy between the parties. The statute contemplates a controversy in a suit, and not a mere suit in which there is no defense. Stanbrough v. Griffln, 47 Iowa (1879) ; but quaere'} " We understand that Judge Davis, when sitting as circuit justice for the District of Indiana, held that the application for removal must be made at the first term at which the cause could be put at issue, and be- fore the trial thereof." Buskirk's Indiana Practice, 459. 80 EEMOVAL OF CAUSES. § 65. The decisions under the Acts of 1866 and 1867, that a removal may be applied for after a verdict lias been set aside and a new trial granted, or the judgment of the A cause was at issue and could have been tried, but hy consent was con- tinued. Judge Drummond beld, under the Act of 1875, that it was too late to remove the case at a subsequent term, as the continuance was neither the act of the law nor of the court. Scott et 'al., Trustees, v. Clinton & Springfield E. R. Co., 8 Chicago Legal News, 210; s. c, Bis- sell, 529, where the case thus decided is referred to and distinguished. A chancery cause can not be tried until the issues are made up ; — if there is no delay in completing the issues on the part of the applicant for the removal, the application is in time, if made before the lapse of a term at which the cause could have been tried. Whether laches in making up issues wfU defeat right of removal, if removal be applied for before the issues are completed, quoere? Scott et a?., Trustees, v. Clinton & Springfield R. E. Co., 8 Chicago Legal News, 210 ; s. c, 6 Bissell, 529, Drummond, J. For the removal of an equity cause, it is held in New Jersey, that applica- tion must be made at or before the first term at which the cause could, on due notice, be regularly set down for hearing. The petition can not be filed afterwards, although the cause is not in fact heard at that term. Wanner v. Sisson, 28 N. J. Eq. 117 (1877). Eemoval of chancery eases under Iowa statute and practice, see 4 Dillon C. 0. Eep. 559, 563, 566. Where a replication under the local law and practice is necessary to complete the issue, and where there is no default in making up the issues by the party who applies for a removal of the cause, no term has passed at which the cause could have been tried within the meaning of the Act of March 3, 1875, sec. 3. Mich. Central E. E. Co. v. Andes Ins. Co. (S. D. Ohio, Swing, J.), 9 Ch. Legal News, 34. In this case. Swing, J., approves of the construction of the Act of 1875, in respect to the time of removals given by Drummond, Circuit Judge, in Scott etal., Trustees, v. Clinton, etc. E. E. Co., supra. The requirement of the statute must be complied with before the trial in the State court is commenced. The calling of a jury to try a cause is, in Minnesota, part of the trial; producing the security after a jury is called is too late. St. Anthony's Falls Water Power Co. v. King, etc. Bridge Co., 23 Minn. 186 (1876). A State court is umder no obligation to delay atrial, in order to give the applicant time to prepare for a re- moval. U. S. Savings Bank v. Brockschmidt, 72 111. 370 (1874) . What is a case in Law oe Equity arising undee the Constitu- tion OE Law op the United States, see the opinion of the Supreme Court, October, 1880, in New Orleans,' etc. E. E. Co. v. State of Missis- sippi, printed in full in the Appendix, where the doctrines of the court are succinctly stated by Mr. Justice Harlan. REMOVAL OF CAUSES. 81 trial court has been wholly reversed and a trial de novo awarded, are, it is supposed, inapplicable under the Act of 1875, which requires the petition for the removal to bo made " before or at etc., the term at which the cause could hQ first tried and before the trial thereof. It is clearly too late to apply for the removal after a trial has once begun, although it may result in a mistrial, or in a verdict or judg- ment that may be set aside with an order for a new trial. ^ Accordingly it has been held, under the Act of March 3, 1875, that the application for removal must be made, be- fore the trial on its merits, or on a question which results in a final judgment or decree, commences. It is therefore too late to apply for the removal after the pleadings have been read and the evidence submitted, and before the argu- ment has begun. ^ 1 A party entitled to a removal of a cause, who proceeds to trial with- out applying for a transfer to the Federal court, is not, under the Act of 1875, entitled to a removal at a subsequent term, although a new trial may have been granted him; in this respect the Act of 1S75 is different from the Acts of 1866 and 1867. Young v. Andes Ins. Co. (S. D. Ohio, Swing, J.), 3 Cent. L. J. 719 (1876). An application filed, after a cause is called for trial and the plaintiff has announced himself ready, and time is granted defendant to apply for continuance, is too late. W^att v. White, 46 Tex. 338. See, on this point, the following decisions: Guruee V. County of Brunswick, 1 Hughes, 270 ; followed Blackwell v. Braun, 1 Fed. Eep. 351 (Dist. of Md., January 16th, 1880); V^hitehouse v. Ins. Companies (E. D. Pa. 1880) 2 Fed. Eep. 498; Chicago, etc. K. E. Co. v. Welch, 44 Iowa, 665 (1876) ; Baker v. St. Louis, etc. E. E. Co., 43 Iowa, 223; Phoeaix Life Ins. Co. v. Saettel, 33 Ohio St. 278. 2 Lewis V. Smythe (Woods, Circuit Judge), 2 Woods C. C. 177 (1875). Construing the word " trial," as used in section 3 of the Act of 1875, in reference to the time when the removal must be applied for, Woods, Cir- cuit Judge, in Lewis v. Smythe, 2 Woods C. C. 117, 118, 119, says : "By the word 'trial,' as used in the statute, I do not understand the argu- ment, investigation or decision of a question of law merely, unless it is decisive of the case, and the question results in a final judgment or de- cree. The decision of the court on a demurrer, for instance, or on exceptions to the sufficiency of a plea, which is followed by amendment or new pleadings, and which does not end the case, is not the trial meant by the statute." The trial meant is one which "involves the facts of the case ; and whenever the investigation of the facts of a case simply, or the facts in connection with the law, is entered upon by the court alone, or by (6) 82 REMOVAL OF CAUSES. So, under the Act of 1875, a cause can not be removed after a default has been entered and before the default has been set aside, even though the service was by publication, and the default has not been made absolute.^ Under the practice in New York, where a cause is noticed for trial in a State court, and is on the calendar, but is not tried, an ap- plication to remove the cause to the Federal court is made too late.^ If the term at which the cause could otherwise be first tried, is one which occurs during the time a trial of the the court and jury, the trial may be said to have begun." The petition must be filed not only before " the trial is completed and ended, but be- fore it commences." Construing the word " trial " in the Act of 1875, sec. 3, see Price v. Sommers (North. Dist. Ohio) , cited supra, 8 Ch. Legal News, 290. In Ames v. Colorado Central E. E. Co. (Dist. Col. ; Dillon & Hallett, JJ.) , 4 Cent. L. J. 199, 4 Dill. 251, it was ruled, under the Act of 1875, that the application to remove a cause must be made to the State court at or before the term in which, according to the local law and practice of the court, the cause could have been finally heard. Accordingly where issue was joined nearly one month before the end of a term of the State court, and it does not appear but that a final hearing could have been had at that term, ah application thereafter made to remove the cause under the Act of 1875 is too late. It was also decided that the Act of 1875, which provides that any suit "now pending or hereafter brought in any State court," of the description therein specified, may be removed into a Federal court, is not applicable to a suit brought in a Territorial court, although on the admission of the Territory as a State such suit passed into the jurisdiction of a State court. lb. Further, as to the time in which application for removal must be made under the Act of March 3, 1 875 : see the Kemoval Cases, 100 U. S. 457 ; ante, sec. 29; post, Appendix, A; and New Orleans, etc. E. Co. v. State of Missis- sippi, decided by the Supreme Court of the United States, October 1880, and printed in full in the Appendix hereto. iJIcCallon V. Waterman (East. Dist. Mich.), Brown J., 4 Cent. L. J. 413; S. P. Bright v. Milwaukee E. E. Co., 1 Abb. New Cases, 14 (1876>. For a criticism on this decision, and a discussion of the question whether a default is a " trial " within the meaning of the Act of 1875, see 4 Cent. L. J. 592. No right of removal after a stipulation filed ad- mitting the claim sued on. Keith v. Levi, 2 Fed. Eep. (West. Dist. Mo.) 743, McCrary, J. 2 Stough V. Hatch, N. Y. Southern District, 1879, Benedict J., 8 Beporter, 7. EEMOVAL OF CAUSES. 83 cause is stayed by an order from the State court, that is not such a term as is meant by the statute.^ § 66. Where the only objection in the Federal court to the removal is that the application was not made in the State court in time, this objection may undoubtedly be waived by acquiescence, or even the failure of the other party to make it the ground of an objection to the jurisdiction of the Federal court in proper time ; and it will be waived, we think, un- less the objection be made by the party entitled to make it, before he takes any affirmative action in the Federal court, or voluntarily submits himself to its action.^ In one case, the mere failure to move to remand at the same term at which the record was filed, the party making the motion not having taken any steps in the cause after its removal, was held not to preclude making the objection at the next term.^ § 67. The Act of March 3, 1875, sec. 2, extends, inter alia, to " any suit * * now pending ;" and by section 3, the petition for removal must be filed in the State court "be- fore or at the term at which said cause could be first tried, and before the trial thereof." It has been contended that the general language of the Act " now pending," does not include cases where, prior to the passage of the Act a term of the State court had passed, at which the cause 1 Warren v. Pennsylvania E. R. Co., 13 Blatchf. 231 (1876). See Bright V. Milwaukee, etc. E. E. Co., 1 Abb. New Cas. 14 (1876) ; For- rest V. Edwin Forrest Home, 1 Fed. Eep. 489 (S. D. N. Y.) , BlatcMord, J. 2 The objection that the application to remove the cause was not made in time may be conclusively waived by submitting to the jurisdiction of the Circuit court by taking testimony and by delaying the objection for an unreasonable time. French v. Hay, 22 Wall. 244; Ames v. Colorado Central E. E. Co. (Dist. Col.), 9 Ch. Legal News, 132, (1876) ; s. c, 4 Cent. L. J. 199; Young v. Andes Ins. Co., (S. D. Ohio; Swing J.), 3 Cent. L. J. 719 (1876). ' See opinion of Yaple, J., in Kaufman v. McJTutt (Sup. Court of Cin.) , 3 Cent. L. J. 408; Kain v. Texas Pacific E. E. Co. (under Act of .July 27, 1868, East. Dist. Texas, Duval, J.), 3 Cent. L. J. 12 (1875) ; Carrington V.Florida E. E. Co. (Benedict, J.) , 9 Blatchf . 467 (1872). 84 REMOVAL OF CAUSES. might have been tried, though it was not ; nor to cases where there had been a trial prior to the passage of that Act, and a new trial had been ordered, and the cause was pending for such retrial when the Act took effect. But the Federal Circuit courts have uniformly, and we think, properly de- cided otherwise, and have held that causes which might have been tried before the passage of the Act of March 3, 1875, but were not, and which were pending for- trial when that Act went into operation, as well as causes once tried, but in which a new trial had been ordered, and which were pending, ready for retrial when the Act took effect, are removable,^ if the application therefor be made after the passage of the Act and within the time therein re- quired.* CHAPTEK XVI. MODE OP MAKING APPLICATION FOE REMOVAL BOND, ETC. § 68. Under the Revised Statutes, sec. 639, the applicant for the removal must file Ms petition therefor, stating the grounds for the removal, and offer in the State court good and sufficient surety for his entering in the Circuit court, on the first day o± its next session, copies of the process [pro- 1 Crane v. Eeeder (Emmons, Circuit Judge) , 15 Albany L. J. 103, de- nying correctness of the contrary decision of the Supreme Court of Mich- igan, 28 Mich. 527; Andrews, Exec., v. Garrett (Swing, Dist. Judge), 3 Cent. L. J. 797 ;s. c, Ch. Legal News (January 8, 1876), p. 132; Mer. & Manuf. Bank v. Wheeler (Johnson, Circuit Judge), 3 Cent. L. J. 13; Hoadley v. San Francisco (Sawyer, Circuit Judge) , 8 Chicago Legal News, 134. The decisions in the 8th judicial circuit have always been in accordance with this view. See Sims v. Sims (N. D. N. Y.),Dec. 1879, Blatchford, J. As to right to a second bemoval of the same cause, after it once has been remanded, see McLean v. Chicago & St. Paul K. R. Co., infra, sec. 89. 2 Ames V. Colorado Central R. K. Co. (Dillon & Hallett, JJ.), Feb., 1877, cited supra. REMOVAL OF CAUSES. 85 ceedings] against him, and of all pleadings, depositions and other proceedings in the cause, etc. This petition is not re- quired to be verified. § 69. Under the Act of 1867 (Revised Statutes, sec. 639, subdivision 3), there is required in addition to the petition for removal an affidavit of prejudice or local influence, which, wherever possible, should be made by the party him- self ; or, if the petition is on behalf of a corporation, by the president or managing or other proper officer, or by some person authorized to control the case.^ The decisions upon 1 See Anon., 1 Dillon 298, note; Trust Co. v. Maquillan, 3 Dillon, 379, 380, where Mr. Justice Miller is reported as saying: "lam not impressed ■with the soundness of the argument that, because corporations can not make an affidavit, except through the proper officers, they were not within the contemplation of Congress. I think that the proper officers of corporations may make the necessary affidavit to procure the removal." TUhe president, and perhaps the general manager of a railway company, is prima facie authorized to make the required affidavit in such a case. Minnett v. Milwaukee, etc. Eailway Co., 3 DiUonC. C. 460 (1875), Nel- son, J. ; s. c, 13 Alb. Law J. 254. In Kain v. Texas Pacific R. R. Co., 3 Cent. L. J. 12, the petition for removal was verified by the solicitor of the corporation defendant, authorized to appear and conduct suits for it in the State of Texas ; no question was made as to his authority or right to file and verify the petition, which was under the Act of July 27, 1868 (Eevised Statutes, sec. 640) . The superintendent of a railroad company having, as incident to his office as such, no authority to represent the company in judicial proceed- ings, the Supreme Court of Massachusetts decided that such an officer, unless specially authorized by the corporation, has no power to make the afiidavit of local influence or prejudice required by the Act of 1867, and on this ground held, that the State Court rightfully refused to transfer the cause. Gray, C. J., observed: "The petition may doubtless be signed, and the afiidavit made, by some person authorized to represent the corporation. But the authority of any person assuming to represent it must appear. No officer of a corporation, unless specially authorized, has power to bind the corporation, except in the discharge of his ordi- nary duties." Mahone v. Manchester, etc. E. E. Corp., Ill Mass. 72 (1872) . The affidavit must be in substantial accordance with the words of the statute. An omission of the words and does is fatal, from an affidavit for the removal of a cause on account of local prejudice, as that he has reason to and does believe that, etc., and renders it insufficient. Balti- more, etc. E. E. Co. V. New Albany E. E. Co., 53 lad. 597. 86 REMOVAL OF CAUSES. the point whether an attorney may naake the affidavit in any case, or what officers of a corporation may make it, are few.-' It is not necessary to state in the affidavit the reasons or facts showing the local influence or pr'ejudice ; for this is not a traversable matter either in the State or Federal Court. ^ As the party himself is a non-resident, and may not be as well advised as his local agent or attorney as to the exist- The affidavit of local prejudice or influence under the Act of 1867, may be taken and certified in conformity with the laws of the State, as there is no Act of Congress regulating this subject. Bowen v. Chase, 7 Blatchf . 255. 1 An application under the Act of Congress of 1867, for the removal of a cause into the United States Circuit court, may be made by a corpora- tion of another State, through its authorized agent or attorney. Mix v. Andes Ins. Co., 74 N. Y. 53; Shaft v. Phoenix Life Ins. Co., 67 N. Y. 544. In the case of Mix. v. Andes Insurance Co., the court say, by Earl, J. : " It is true that, literally speaking, a corporation can not believe nor have motives or knowledge. Yet a corporation can legally entertain malice, be guilty of fraud, libel, and other torts. Notice to its managing agents is notice to it; and their motives and knowledge and belief may be at- tributed to it. We do not think there was any purpose in the phraseol- ogy used to exclude corporations from the benefit of the Act. A corpo- ration could make the required aflidavit, as it would do any other Act, by its authorized agent, and this view is sanctioned by respectable au- thority. Ins. Co. V. Dunn, 19 Wall. 214; Loan Co. v. McQuillan, 3 Dill. 379; Minnett V. E. E. Co., 3 Dill. 460; Shaft v. Ins. Co., 67 N. Y. 544. The decision in Cook v. Bank, 52 N. Y. 96, that a corporation could not make the affidavit, was merely pro /orma to facilitate the final disposition of the cause. In this case the bond was sufficient in form and substance. The court to which it was presented could not arbitrarily reject it with- out specifying a cause. An orderly administration of justice requires that the defects should be pointed out, so that they can be remedied. Taylor v. Shew, 54 N. Y. 75; Pisk v. E. E. Co., 6 Blatchf. 362, 380; Bowen v. Chase, 7 lb. 255. The petition and affidavit contain all the facts which the statute requires to be stated therein. But it is objected that the affidavit, which was made in Ohio, was not properly certified as required by c. 133, LL. 1869, so as to authorize it to be read on the motion at special term. It was not properly certified; but the objection should have been taken when the affidavit was read ; and, not having been taken then, it was waived. The cause having been removed, the court had no jurisdiction thereafter to proceed in the action. 'Anon., 1 Dillon, 298, note; Meadow Valley Mine Co. v. Dodds, 7 Nev. 143; Quigley v. Central, etc. E. E. Co., 11 Nev. 350 (1876) ; Loffler V. Ins. Co., 1 Weekly Notes, 346. REMOVAL OF CAUSES. 87 euce of local influence or prejudice, there would seem to be no reason for requiring the affidavit in all cases to be made by the party; and some parties, as infants or persons non compos mentis, could not make it. If an attorney or agent makes the affidavit, it is good practice to state why it is not made by the party himself.^ § 70. Under the Act of March 3, 1875, the removal is ef- fected by the proper party making and filing, in the State court, a petition in the suit to be removed, setting forth therein the grounds for the removal. This petition is not required to be verified.^ Petitions for removal usually state not only the grounds for the removal arising from the citizenship or the nature of the subject-matter, but also that the amount in dispute exceeds $500. Where, however, the amount is shown by the pleadings in the case to exceed this sum, it is not necessary, although it is not improper, to make a statement in the petition for the removal as to the sum or value in dispute.' The petition for removal should be carefully framed, and in removals under the Revised Statutes, sec. 639, the prudent practitioner will follow the exact language of the statute in stating the grounds for the removal.* § 71. It has been decided by some of the Slate courts, that the petition for the removal must expressly state that the parties were citizens of the respective States at the time the 1 The party seeking to remove the cause must "make and file" the afflda- Yit; if he does not, and tliere is no reason given therefor, an afladavit by his agent or attorney is insufficient. Where the agent and attorney swears that '■'■he has reason to and does believe," it was held not to be suflScient. Cooper v. Condon, 15 Kas. 572. 2 Connor v. Scott, 4 Dillon, 242 (1877), 3 Cent. L. J. 305; Merchants', etc. Bank v. Wheeler, 3 Cent. L. J. 13, per Johnson, Circuit Judge ; Houser v. Clayton, 3 Woods C. C. 373. 3 Abranches V. Schell, 4 Blatchf. 256; Turton v. U. P. K. E. Co., 3 Dil- lon, 366. * Kail way Co. v. Ramsey, 22 Wall. 328, where the requisites, function and effect of the petition for removal are tersely stated by the Chief Jus- tice. Amory v. Amory, 36 N. Y. Sup. Ct. Rep. 520. See also the Re- moval Cases Appendix. ' 88 REMOVAL OF CAUSES. suit was commenced, and that it is not suflBcient to state it in the present tense, or as of the time when the petition for removal was made or filed. ^ It has been expressly held by the Supreme Court of the United States, that, where the removal is under sec. 12 of the Judiciary Act, the petition for removal must, in connection with the record, affirmatively show that the plainti:ff was, at the commencement of the suit, a citizen of the State in which the suit is brought.^ This view is open to some doubt. It overlooks the purpose of the Con- stitution and of Congress in providing for removals, which was to give a resof t by the non-resident party to a tribunal in wliich the citizen of the State should have no advantage over him. It is inconsistent with several adjudications un- der the latter Acts.^ Whatever may be the law on the point, the careful attorney will state in his petition for re- moval that the plaintiff, when the suit in the State court was commenced, was and still is a citizen of the State in which the suit is brought, etc., etc. § 72. Under the Act of March 3, 1875, it is sufficient, to entitle a party to a removal of the cause, if the requisite cit- izenship exists at the date of the timely filing of the petition, for removal ; and hence it need not be stated in such petition that the plaintiff was, at the date of the commencement of the suit in the State court, a citizen of a State other than that of which the defendant is a citizen.* In this respect 1 Pechner v. Phoenix Ins. Co , K. Y. Court of Appeals, May 1875 ; s. c, 6 Lans. 411 ; Holden v. Putnam Fire Ins. Co., 46 N. Y. 1 ; Indianapolis, etc. E. E. Co. V. Eisley, 59 Ind. 60; Savings Bank v. Beuton, 2 Mete. (Ky.) 240; People v. Superior Court, 34 111. 356; Tapley v. Martin, 116 Mass. 275 a874) ; Eawle v. Phelps, E. Dist. Mich. (1879), 8 L. Eep. 356; Weed Sewing Machine Co. v. Smith, 71 111. 204 (1873). 2 Ins. Co. V. Pechner, 95 U. S. 183 (1877), affirming on this point the judgment of the Court of Appeals of New York; whether the same con- struction is applicable to the Acts of 1866, 1867 and 1875, the court say that it gives no opinion. 3 Johnson v. Monell, 1 Woolw. 390 ; McGinnity v. White, 3 Dillon, 350. * McLean v. St. Paul, etc. Eailway Co., U. S. Cir. Ct., South. Dist. N. Y. (1879), 20 Alb. L. Jour. 78 (before "Blatchford, Circuit Judge) ; s. c. REMOVAL OF CAUSES. 89 the Act of 1875 differs from sec. 12 of the Judiciary Act.^ § 73. Where it is sought to remove a suit on the ground that it is one "arising under the Constitution, or laws or treaties of the United States (Act of March 3, 1875, sec. 2), it should appear from the pleadings or the petition for the removal, or both, that the case is one of this character." If this does not appear from the pleadings, that is, from the averments of facts therein or the nature of the case made thereby, then it must be made to appear by the petition for the removal ; and the Circuit Judge for the Ninth Circuit, in a recent opinion where the point is carefully examined, has reached the conclusion, and enforced it by very persua- sive arguments arising from the delay, inconvenience and abuse which would follow from a different practice, that the petition for the removal must state the facts (unless they •appear in the pleadings) which show the case to be one of Federal cognizance, and that it is not sufficient to state gen- erally that the case is one arising under the Constitution or laws of the United States.' 16 Blatohf. 309; S. P. Jackson v. Mutual Ins. Co., 3 Woods C. C. 413; .s. c, 60 Ga. 423. 1 McLean v. St. Paul. etc. Eailway Co., supra, approving Johnson v. MoneU, Woolw. 390, and McGinnity v. White, 3 DiUon, 350. 2 Construction of this clause in Act of 1875, see ante, chap. 8. What is a case '• arising under the Constitution or laws of the United 6'toto " is succinctly and clearly stated in an opinion of the Supreme ■Court delivered at the October term, 1880, and printed at large in the Appendix, to which the reader is referred. New Orleans, etc. E. P. Co. v. State of Mississippi. sTraffcon v. Nougues, 4 Sawyer, 178 (1877) ; 13 Pacific Law Pep. 49; s, c.,4 Cent. L. J. 228. After stating the delay and obstruction to the administration of justice, which would result from allowing the peti- tioner for the removal to effect it on his mere statement that the case was ■one arising under the Constitution or laws of the United States, — the duty of the Federal court to remand the cause at any stage when its non- federal character appears — the territorial extent of the Federal jurisdic- tion — the increased cost of litigation in the Federal courts — the abuse •of the right by unscrupulous persons, to obtain delay or to harass then- ad- versary, — Mr. Circuit Judge Sawyer concludes his opinion, in the ease just cited, as follows : " In view of these, in my judgment, weighty coa- siderations, therefore, I think it of the highest importance to the rights 90 REMOVAL OF CAUSES. § 74. Surety — Bond. — Under section 639 of the Ee- vised Statutes, good and sufficient surety is to be offered in the State court, at the time of filing the petition for the re- moval, for the petitioner's " entering in the Circuit court on the first day of its next session copies of the process," etc. This is substantially the requirement in this regard of the Act of March 3, 1875 (sec. 3), except that the surety is to be given by a " bond " which is conditioned, not only for the entering of a copy of the record of the State court in the suit, but for " paying all costs that may be awarded by said Circuit court, if said' court shall hold that such suit was wrongfully or improperly removed thereto." But if the Circuit court should hold that the suit was removable, it would not, probably, dismiss or remand it, because the bond did not contain this condition as to costs, or was other- wise informal.^ This section has been construed by the of honest litigants, and to the due and speedy administration of justice,, that a petition for transfer should state the exact facts^ and distinctly point out what the question is, and how and where it will arise, which gives jurisdiction to the court, so that the court can determine for itself from the facts, whether the suit does really and substantially involve a dispute or controversy within its jurisdiction. Whenever, therefore, the record/ fails to distinctly show such facts in a case transferred to this court, it will be returned to the State court, and under the authority given by section 5, at the cost of the party transferring It. If I am wrong in my construc- tion of the Act and the recent decisions of the Supreme Court, the stat- ute, section 5, happily affords a speedy remedy by writ of error, upon which this decision and the order remanding the case may be reviewed without waiting for a trial, and the question may as well be set at rest in this case as in any other. It is of the utmost importance that a final de- cision of the question be had as soon as possible. If counsel so desire, I will order the clerk to delaj"^ returning the case till they have an oppor- tunity to sue out and perfect a writ of error." 1 Section 5 of the Act of March 3, 1875. The defendants, under the Act of 1789, must give several, or joint and several bonds, and not joint bonds, — so held by Potter, J., in Hazard v. Durant, 9 K. I. 602; but gaoere? Sufficiency of bond, under' Act of March 3, 1875, see The Removal Cases, anie, sec. 29; post. Appendix "A." A case was remanded by Gresham, J., because the bond did not com- ply with the Act of 1867, the penal sum being left blank, and because it did not contain the conditions required by the Act of 1875. Burdeck v.. Hale, 8 Ch. L. N. 192, 7 Biss. 96 (1876). REMOVAL OF CAUSES. 91 learned Circuit Judge of the 7tli Circuit, who holds that "it did not intend that the suit should be dismissed or remanded on account of irregularities, provided it satisfactorily ap- pears that the Circuit court has jurisdiction of the case." ^ But if the removal was not applied for in time, this is not treated as an unimportant irregularity, and the uniform practice is to remand the case. This objection must, how- ever, be made seasonably, or it will be deemed waived.^ CHAPTEE XVII. EFFECT OF PETITION AND BOND FOR REMOVAL ON THE JURIS- DICTION OF THE STATE COURT. § 75. The Removal Acts provide that, upon the filing of the proper petition and the offer of good and sufiicient surety or bond, " it shall be the duty of the State court to accept the surety," [under Act of March 3, 1875, "to ac- A suit was brought in a State court, in August, 1875, and proceedings- for its removal into the Circuit Court of the United States were taken u.nder subdiv. 3 of sec. 639 of the Kevised Statutes of the United States.-^ The bond given was such a bond as is provided for by said section, and not such a bond as is provided lor by sec. 3 of the Act of March 3, 1875- (18 U. S. Stat. 470) . It contained no provision for costs. Held, that the suit was not properly removed. Torrey v. Grant Works, 14 Blatchf . 269^ Where the party seeking a r^oval presents a bond apparently ample,, the atate court (assuming that that court may insist upon " a good and sufficient bond) cannot arbitrarily refuse to receive the bond, and refuse to remove the case without giving the party an opportunity to correct the bond or make it ample. In an action where the claim was less than, $600, and where a bond for $2000, in due form, with two sureties who- justified in the sum of $4000 each, was presented, which the court re- fused to accept, without stating any reasons, the appellate court re- versed the judgment, and held that it could not assume, under the cir- cumstances, that the lower court refused the bond, because not satisfleA with the sureties. Taylor v. Shaw, 54 N. Y. 75 (1873.) 1 Osgood Y. Chicago, etc. E. B. Co., 7 Ch. Legal Wews, 241; s. c.,%. Cent. L. J. 275, and, on re-argument, 2 Cent. L. J. 283. See also Parker- V. Overman, 18 How. 137, 141 ; infra, chap. 17. ^French v. Hay, 22 Wall. 244;' supra, chap. 15. "32 REMOVAL OP CAUSES. -cept said petition and bond " ] " and to proceed no further in the suit," [under the Act of 1866, "no farther in the -cause"] "against the petitioner for removal."^ If the case be within the Act of Congress, and the petition is in due form, accompanied with tlie offer of the required surety •or bond, the statute is that the State court must accejat the surety or the petition and bond, and proceed no further in the case. Under such circumstances the State court has no power to refuse the removal, and can do nothing to affect the right, and its rightful jurisdiction ceases eo instanti; no order for the removal is necessary, and every subsequent •fexercise of jurisdiction by the State court, including its judgment, if one is rendered, is erroneous.** And if the ' Eev. Stats., sec. 639. It is doubtful whether parties can remove a ■cause by a stipulation of the jurisdictional facts. At all events, the practice should not be encouraged ; and where a minor was a party, it was held he was incapable of consenting to the removal, and the cause was remanded. .Kingsbury v. Kingsbury, 3 Bissell, 60 (1871), Davis, Drummond and Blodgett, JJ. , concurring. Further as to effect of filing a sufficient petition •and bond ore the jurisdiction of the atate court., see The Eemoval Cases, 100 TJ. S. 457; areJe, sec. 29; post^ Appendix. 2 Taylor v. Rockefeller, 6 Rep. 226 ; 18 Am. L. Reg. (N . S.) 298 ; McMun- ■dry V. Ins. Co., 4 W. N. C. 18 ; Picklin v. Tarver, 59 Ga. 263 (1879) ; Ful- ton V. Golden, U. S. 0. C, N. J. (1879) ; 8 Rep. 517: 20 A. L. J. 229; Bery v. Chicago, etc. R. R. Co., 64 Mo. 533 (1877) ; Durham v. Southern 'Life Ins. Co., 46 Tex. 182 (1876) ; Blair v. West Point, etc. Co., 7 Neb. 146; Shaft V. Phoenix Life Ins. Co., 67 1&. Y. 544; St. Anthony's Falls Water Power Co. v. King, etc. Bridge (Jo., 23 Minn. 186 (1876) ; Fisk v. Union Pacific R. R. Co., 6 Blatohf. 362; s. c, ib. 243, 299; Hatch v. Chi- -cago. Rock Island & Pacific R. R. Co., 6 ib. 105; Matthews v. Lyall, 6 McLean, 13. The petition or application " for removal is ex parte., and '■depends upon the papers on which it is founded, and if they are regular •and conform to the requirements of the statute, the [State] court has no ■disci'etion " — and the adverse pai'ty is not entitled to notice of tlie time and place ©f presenting the petition. Fisk v. Union Paciflc R. R. Co. {ISTelson, J.), 8 Blatchf. 243, 247 (1871); Ficklin v. Tarver, 59 Ga. 263 •(1877). When a removal is granted, the cause is to be removed as of the ■date when the motion is made, and the papers should be certified as of that date. Clark v. Delaware, etc. Canal Co., 11 R. I. 36. " In cases where the proceedings are in conformity with the Act, the removal is imperative, both upon the State and Circuit court; and if the Jacts [upon which the removal is based]' are seriously contested, it must REMOVAL OF CAUSES. 93 right of removal has once become perfect, it cannot be taken away by subsequent amendment in the State court, be done in a formal manner, by pleadings and proofs, in the latter court. The question of jurisdiction [in such a case] belongs to the Federal- com-t, and must be heard and determined there." Nelson, J., iiiDen- nistoun v. Draper, 5 Blatchf. 336, 33S (1866) ; Taylor v. Rockefeller, 7 Cent. L. J. 349; Cobb v. Globe Mut. Life Ins. Co., 3 Hughes, 452. No ORDEK of removal necessary. Hatch v. C, K. I. & P. R. R. Co., 6' Blatchf. 105 (1868) . Petition for removal was founded on the Act of 1867. It did not show a right under this Act, but did state a case within the Act of 1866, and it was held sufficient to require a removal so far as authorized by the last- named Act. Dart v. Walker, 4 Daly (N. Y.) , 188 (1871) . " Where a suit is legally removed," says Gray, C. J., "into the Circuit Court of the United Sta.tes, the jurisdiction of the State courts over it ceases,^ and the suit is thenceforth to proceed to trial, judgment and execution in the Federal courts, and can not be remanded to the State courts for any purpose. Kanouse v. Martin, 15 How. 198; Ins. Co. v. Dunn, 19 Wall.- 214 ;Mahone V.Manchester etc. R.R. Co., Ill Mass. 72. Such removal of a case from the State to the Federal courts for trial does not change the nature of the issue to be tried or the judgment to be rendered. West v. Aurora, 6 Wall. 139; Partridge v. Ins. Co., 15 Wall. 573." Du Vivier v. Hopkins, 116 Mass. 125, 128. In the text we purposely use the phrase " the rightful jurisdiction ceases eo instanti," and a subsequent judgment of the State court " is erro- neous," — wedo not say null and void. Sucha judgment is perhaps valid, unless reversed or set aside ; but in many of the cases every subsequent exercise of jurisdiction is said to be null and void, and every step coram non judice. How far the subsequent proceedings in the State court have any validity, if a proper application for removal be refused, see Herry- ford v. ^tna Ins. Co., 42 Mo. 151, 153, where it is said " they are corom non judice;" S. P. Akerly v. Vilas, 1 Abb. U. S. 284; s. c, 2 Bissell, 110;., Fisk V. Union Pacific R. R. Co., 6 Blatchf. 362; s. c, 8 ib. 243, 299; Stevens v. Phasuix Ins. Co., 41 N. Y. 149; and compare with Kanouse v.. Martin, 15 How. 198; Gordon v. Longest, 16 Pet. 97; Ins. Co. v. Dunn, 19 Wall. 214; French v. Hay, 22 Wall. 250; Amory v. Amory, 36 N. Y. Superior Ct. R. 520 ; Bell v. Dix, 49 N. Y. 232 ; Stanley v. Ch., R. I. & P. R. R. Co. (Sup, Ct. of Mo.) , 3 Cent. L. J. 430 (1876) ; Hadley v. Dnnlap, 10 Ohio St. 1, 8, where the matter is discussed by Scott, J. ; Du Vivier v. Hopkins, 116 Mass. 125, 126; The Removal Cases, 100 U. S. 457, ante, sec. 29. The doctrine of the text to the effect that, if the petition for the re- moval presents a case within the Removal Acts, and is made in due time and accompanied with the proper surety, no order for the removalis neces- sary, is very strongly combated by Chancellor Cooper in the Southern Law Review for April, 1877. This learned writer contends that under^ •94 REMOVAL OP CAUSES. 1867. , Form of Writ o/Ceetioraei, under Section 7 of the Act of March 3, 1875. The President of the United States of America to the Judge OF THE Court of [here describe the State court by name.] Whereas it hath been represented to the Circuit Court of the tlnited States for the District of , that a certain suit was commenced in the court of [here name the State court] wherein , a citizen of the State of , was plaintiff and , a citizen of the State of •, was defendant, and that the said duly filed in the said State court his petition for the removal of said cause into the said Circuit Court ot the United States, and filed with said petition the bond with surety required by the Act of Congress of March 3, 1875, entitled an Act to determine the jurisdiction of the Circuit Courts of the United States, and to regulate the removal of causes from State courts and for 148 APPENDIX. other purposes," and that the clerk of the said State court above-named has refused to the said petitioner for the removal of said cause a copy of the record therein, though his legal fees therefor were tendered by the said petitioner : You, THEREFORE, ARE HEREBY COMMANDED that you forthwith Cer- tify, or cause to be certified, to the said Circuit Court of the United States for the District of , a full, true and complete copy of the record and proceedings in the said cause, in which the said petition for removal was filed as aforesaid, plainly and distinctly, and in as full and ample a manner as the same now remain before you, together with this writ; so that the said Circuit Court may be able to proceed thereon and do what shall appear to them of right ought to be done. Herein fail not. Witness the Honorable Morrison E. Waite, Chief [SEAI..] Justice of the Supreme Court, and the seal of the said Ckcuit Court hereto affixed this the day of , A. D. 188 . Clerk of said Circuit Coart. The writ of certiorari should be directed to the judge or judges of the State court, but a return to the writ duly certified may be made, it is supposed, by the clerk of the said court. Stewart v. Engle, 9 Wheat. 426. See Bacon's Abridg., title Certiorari; ante, chap. 12. INDEX. Tke references aie to pages; references to notes are indicated by the letter n. A. ABATEMENT. Plea In, proper practioe where the petition sets out, as ground of removal, facts that are not true, 105. Motion to remand and plea in abatement contrasted ; grounds on which each proceeds, 105, n. 1. ADMINISTEATORS. See Executos* aitd Akministbatobs. AFFIDAVIT. See also Cokporatioits. Of local prejudice not necessary under Act of 1866, '20, note. Of prejudice or local influence, under the Act of 1867, by whom made, 85, 86. Must substantially conform to the TTords of the statute; •what omission fatal, 85, n. But need not state reasons or facts showing the local influence etc., 86. As to the authority of tie preaident, or general manager, or su- perintendent, of a railroad company to make the aflBdavit, see COEPOEATIONS. May be taken and certified in conformity with the local laws, 86, n. Infants and persons nan compos msKtit, need not, and can not, make affidavit, 87. Keasons v/hy affidavit should not always be required to be made by the party himself, 86-87. The proper practice, where attorney or agent makes It, 87, and note. Case of an affidavit by an ageat and attorney, that was held in- sufficient, 87, n. 1. ALIENS. Kight of, to remove suits against eivil officers, etc., under sec. 644 of Kev. Stats., 4, 6. 150 INDEX. AliIENS— Continued. Can not remove suit, under Judiciary Act (Rev. Stats., § 640, sub- division 1 ), 18, n. 2. Alienage as the ground of Federal jurisdiction, 18, n. 2. Eesident unnaturalized foreigners, deemed aliens, 18, n. 2 ; see also, 67, n. 1. Indians, not aliens, 18, n. 2. Effect of subsequent naturalization upon suit removed on account of alienage, 18, n. 2. Alienage, no cause of removal under Act of 1867, 23, n. 1. A point recently ruled by Blatoliford, J. in a case, \?h.ere the plaintiff was an alien, one defendant an improper party, and the others, citizens of various States, 37,, note. A State can not make the subject of a foreign government a citizen. of the United States, 67, n. 1. Corporations chartered by foreign countries, deemed aliens for purposes of removal, 71. AMENDMENTS. See also Pkactice and Pleading. In the pleadings, allovsred after removal, 59. Subsequent amendment in State court can not take away right of removal when once perfected, 93. Allowed, where attorney of petitiofaing plaintiff has misstated his citizenship, 99, n. 5. AMOUNT IN DISPUTE. See Value. APPEAL. See also Pkactice. As to appeal, from decision of nisi prius State court granting or refusing removal, to State appellate court, and e:^ct thereof, 109-110, n. APPLICATION. See Petition. ATTACHMENT. Suits by, removable underact of 1875, 53, n. 1. And a controversy as to \hB validity ot an attachment, removable when, 53|, n. 1. Suits commenced by, may be remqyed by corporation of another State, 71, §.56. Of property, by express provision, holds after removal, until dis- solved by Circuit court, 100, § 81 and n. 3. ATTOENEY. . , Whether an attorney may make the affidavit of loc^ influence ia any case, 86. Mistake of, in stating citizenship of plaintiff in petition, permit- ted to be corrected after removal, 99, n. 5. Case in which an attorney's signature to the petition for removal was held to be the signature of the petitioners, 37, n. AVERMENT. See Pkactice and Pleading. LNDEX. 151 B. BANKRUPT ACT. Case iavolving construction of , removable under Act of 1875, 30, n. 2. BOND. See also Surety. The defendants, under the Judiciary Act, must give several, or joint and several 'bonda, 90, n. 1. Instance of case remanded, because of non-compliance of bond with Act of 1867, 90, n. 1. Sufficiency of, under Act of March 3, 1875, 90, n. 1; 35, § 29. See also Appendix A, " The Removal Cases," 113-130, passim. Full text of the bond which was given in " The Removal Cases,"' and held sufficient, 36, n. A state of facts under which a bond, containing no provision foi- costs, was held insufficient to remove a suit brought in August, 1875, 91, n. Power of State court to refuse bond, where tbe same is appiu-cntly ample, 91. ISffect of petition and bond on the jurisdiction of State i^ourt. Chap. XVU; pp. 91-97. Sufficiency of, by what court determined, 95. Judge Drummond's and Chancellor Cooper's conflicting doctrines on the subject; the author's view, 95, n. Bond of indemnity valid, after removal, until when, 100. Condition in bond to procure discharge from a writ of ne exeat, that will estop the defendant to remove the cause, 102, n. 3. FOEMS of Bond. See Appendix B. BURDEN OF PROOF. As to the jurisdictional facts, where contest is made after removal, 105, n. 2. C. CAUSES OF ACTION. Improper joinder of, 16, n. In an action for joint indebtedness, who must apply for removal under Acts of 1866 and 1867, 18, note. GERTIORAEI. Will issue from Federal court having jurisdiction under Ac^ of 1875, to enforce removal, bring up record, etc., 61. Object of the writ; — for what frequently resorted to, 61, n. 1. Cures defects or omissions in transcript, 61, n. 1. Improper return to writ, for State court to make, 108, note. FOKMS of writ of Certiorari. See Appendix B. CHANCERY CAUSE. See Equity. 152 INDEX. CITIZENSHIP. See also Cobpokations. Of parties, as ground of removal, under sec. 12 of Judiciary Act, 13-14. Same, under sec. 11 of same Act, 14. Same, under Act of 1S6G, 19-21. (See also, 78). Same, under Act of 1867, 22-25. (See also, 78) . Same, under Act of March 3, 1875, 26-38, passim ; see also Apper- Dix A, " The Kemoval Cases," passim. Citizenship of what parties only essential in the detei-mination of Federal jurisdiction, where such jurisdiction depends at all OB citizenship, 67-68. State citizenship, for jurisdictional purposes, depends on what merely, 67, n. 1. Effect of bona fide change of domicile, 67, n. 1. As to citizenship of executors and administrators, see Exbcutok8 AND ADMINISTRATORS. Citizenship of trustees, 68, n. 1. Of corporations, by what alone determined, 68-70. Same rule applicable to public and municipal corporations, 70. Effect of consolidation under charters of different States upon cit- izenship of consolidated company and jurisdiction, 69, n. 1. Citizenship of corporation chartered by several States, 69, n. 1. Citizenship of railroad company operating road in Virginia as lessetj no right to remove cause on that ground alone, 69, n. 1. But held differently in Ohio, 69-70, note. Citizensliip of national banks, for jurisdictional purposes, 71, 72. Distinction drawn between national banliing associations and their receivers, 72. What petition should state in relation to citizenship of the partiee, under sec. 12 of the Judiciary Act, and what under the Act of March 3, 1875, 87-89, Mistake in original petition as to citizenship of plaintiff, allowed to be corrected after removal, 99, n. 5. Citizenship, requisite for removal, when presumed in Supreme Court, in a case where the papers were afterwards destroyed by lire, 107, n. 1. Citizenship and residence not synonymous terms, 107, n. 1. CIVIL EIGHTS. Bight, to removal of cause, of persons denied civil rights, 4, § 6, and n. 2. CLEKK OF STATE COmiT. Criminally liable foj- refusing copy of record to party applying for removal, when, 6l. CONSPIEACY. See Torts. CONSTITUTIONAL LAW. Validity of the Acts of 1789, 1833, 1863, 1866 and 1867, 10, 11. INDEX. 153 OONSTrrUTIONAL LAW— Continued. The light to removal can not be defeated by State legislation^ 11-12. State statute attempting to restrict such right, void, 12. And injunction will be granted to restrain revocation of license under such statute, 12, n. 1. Eight of State Legislature to exclude foreign corporation, 12. Means of enforcing such exclusion, or motives of such action, not inquired into by the Federal judiciary, 12. Constitutionality of the Act of 1866, 19, n. 1. And that of the Act of 1867 adjudged by the Supreme Court, 25. Whether Congress has repealed it, 25. Constitutional limitations of the Federal judicial power, 32, tt seq. Section 641, of the Revised Statutes, as to the removability of "any- civil suitor criminal prosecution," etc., under given conditions, construed by the U. S. Supreme Court, and held constitutional, 41-43. Section 643, U. S. Bev. Stats., construed by the U. S. Supreme Court, and held constitutional, 44. OONTINUAIirCE. Effect of continuance, by consent, of cause that was at issue and could have been tried, under Act bf 1875, 80, note. COEPOKATIONS. See also Joint-Stock Companies. Suit against Federal, when removable under Act of July 27, 1868 (Rev. Stats., sec. 640), 6, n. 2. Scope of the Act; — ^what corporations excluded from its operation; conditions essential to make it operative, 6-7. Officers of, as defendants to a bill in equity, when, and in what sense, nominal parties, 16, note. Corporations are citizens of State, that created them, 68, 69. Citizenship of members immaterial, and averment or proof thereof incompetent, 69. Municipal corporations governed by same principle for jurisdio- tional purposes, 70. Citizenship of corporation chartered by different States ; its effect on jurisdiction, 69, n. 1. Effect of different companies constructing same line of road, 6>, n. 1. Effect of consolidation of different companies, 69, n. 1. Citizenship of consolidated company, 69, n. 1. ' Eight of railroad company, in Virginia, to remove an action, where it merely operates a road in that State as lessee, 69, n. 1. Effect of a similar state of facts, under rulings in Ohio, 69, n. 1. Eight of removal of one of the class of corporations mentioned in Rev. Stats., § 640, not dependent upon citizenship of the parties, 70, note. 154 INDEX. •COEPOE ATIOKS— Co ntin ued . Eight of foreign corporation to remove cause, not affected by State legislation authorizing service of process on its agent in the State, 71, § 56, and n. 2. And its citizenship not affected even hy its own assent to be sued in another State, 71, n. 2. Corporations within the contemplation of the Eemoval Acts, though they can make affidavit only through their proper olli- cers, 85. President and general manager of railway company, prima facie autliorized to make the affidavit, 85, note. Case where the solicitor of the corporation defendant was hold authorized to verify petition, 85, note. Superintendent of railway company, when only competent to make affidavit, 85, note. Corporation of another State may make application for remo\-a1, under Act of 1867, through its authorized agent or attorney, 86, n. 1. OOSTS. In suits removed from State courts, by what statutes governed, 59, note. D. DECLAEATIOSr. See Pleading and Practice. DEFENSE. What is a defense " arising under the Constitution," etc., " of uio ■United States? " Act of July 27, 1868, discussed ; its scope and operation, 6-8. DISMISSAL. See Eemanding Cause. DOMICILE. The only essential element of State citizenship, for jurisdictional purposes, 67, n. 1. Effect of bona fide change of, on citizenship, 67, n. 1. E. EJECTMENT. Ejectment suit not removable under Acts of March 3, 1863, and March 2, 1867, 5. But otherwise, under Act of 1875, 53, u. 1. A petition'mevely ancillary to an ejectment suit, when not remov- able, 53, n. 1. EMINENT DOMAIN. Suit to determine value of private property which an incorporated company seeks to appropriate under the right of, removable, 49, n. 3, et seq.; 53, n. 1. INDEX. 155 ENTEEDSTG AST APPEABANCE. Meaning of, construed and applied, 18. State court allowing an appearance to ke entered nunc pro tunc, does not restore right of removal under sec. 12 of Judiciary Act, 73, n. 1. EQUITY. Bill in, to reform an insurance policy, is such an original suit as may be removed, 51, note ; 53, n. 1. Parties to bill in, filed in behalf of complainant and sudh others as might come in, etc., 6S, n. 1. Chancery cause, when only triable, 80, note. Application for its removal, when in time, under Act of 1875, 80, note. Whether laches in making up issues will defeat right of removal, SO, note. Effect of local law or practice requiring replication to complete the issue, in absence of laches on part of party applying for removal, 80, note. What necessary, in New Jersey, for the removal of an equity cause, SO, note. And what under Iowa statute and practice, SO, note. ESTATES. Eemovability of suits for the establishment of claims against the estates of deceased persons, 53,54, note. ESTOPPEL. Acts of party entitled to removal, that will estop him to apply for it, 102, §84, andn.3; 103. Estoppel by conduct ; illustration by a case arising under Kev. Stats, § 639, subdivision 3, 103, n. 1. EXECUTOKS AND ADMESTISTKATORS. Citizenship of, how affects Federal jurisdiction, 68, n. 1. Such citizenship disregarded in what actions, 68,n.l. Citizenship of executors, how determined, 68, n. 1. Effect of removal of executor to another State, 68, n. 1. FEDEEAL JUEISDICTION. See also Suits; Attachment; Bank- BTJPT Act; Civil Eights; Ejectment; Eminent Do- main; Equity; Estates; Garnishee ; Injunction ; Land Title; Mining Claims; EBPtEViN; Slander; Wills and various other appropriate titles. Its historical development; causes of its constant growth and present importance, 1-3. Whether appellate or original, in case of causes removed from State courts, 3, § 4. Jurisdiction of Circuit Courts, under sees. 11 and 12 of Judiciary Act, 13, 14, and notes, 14-15. Such jurisdiction dependent on what, 15-16. 156 INDEX. FBDEEAL JUEISDICTICN— Continued. Essential conditions of same, under sec. 12 of Judiciary Act, 17, 18. Alienage, as the ground of, 18, n. 2. Original jurisdiction of U. S. Circuit Courts under the Act of March 3, 1S75, 26-27. Enlarged Federal jurisdiction under this Act, in respect of sub'- ject-matter, 27. In respect of citizenship, under this Act, 26-38, passim. Limits of the Federal judicial power under the clause of th« Constitution of the United States: " All cases arising under thA Constitution and Laws of the United States," 37-40. The jurisdiction unquestionable, when the main controversy is be- tween citizens of different States, and a mere incident cannot defeat the removal (Act of 1875), 41-43, notes. Power of Federal court to continue, modify or dissolve injunc*- tion of State court restraining execution of a Judgment of thtf latter court, 55, note. Power of Federal court to enforce removal by writ of certiorari to State court, 60-61. To determine the Federal jurisdiction, citizenship of parties bene^ ficially interested, not considered, 68. Executors, administrators and trustees embraced in the rule, 68, notes. Effect on, of charters granted by different States to same company, 69, n. 1. Effect on, of several companies constrncting same line of road^ 69, n. 1. Effect on, of consolidation, 69, n.l. Over municipal corporation, not ousted by State statute, 70, n. 1< Federal court must determine the question of jurisdiction, wher« proceedings are in conformity with the Eemoval Act, but th» facts are seriously contested, 92-93, note. Effect on, of erroneous determination by the State eourt, that pe- tition is either sufficient or insufficient, 97- Federal court not in all cases concluded by action of State court in regard to sufficiency of bond, 97. Federal jurisdiction not affected by subsequent death of defend*- ant, wlien, 98, note. Effect of petition for removal on the Federal jurisdiction. Chap, XVIII, pp. 98-101. Until when the Federal jurisdiction does not attach, 99. But not lost for want of averment of citizenship in original blU ot amendments, when cause once removed, 100. Includes power to allow amendments, 99. The true test of, under .sec. 5 of the Act of 1875, 102. Inquiry into the facts of the petition, exclusively one for Jedraral court, 105. INDEX. riNAL HEARING. See Trial. FINAL JUDGMENT. See Judgment. FINAL TEIAL. See Trial. FORCE ACT. G. GARNISHEE. A garnishee or trustee, holdins: property of principal defendant, may not as co-defendant remove cause as to himself only, 51, note. H. HABEAS CORPUS. Certiorari and, under "Force Act," 61. I. INDIANS. Not deemed aliens, 18, n. 2. INJUNCTION. Will be granted to restrain revocation of license of insurance company under State statute restricting right of removal, 12, n. 1. Injunction suit to restrain execution of judgment of State court, removable, 55, note. Writs of, issued by State court, continue in force after removal, till dissolved by Circuit Court, 99, § 80; 100, n. 3. ENTERPRETATIOJil . Defense "arising under the Constitution," etc., of the United States, 6-8. "Citizenship" and "residence," 107. "Entering an appearance," 18. "Final judgment," 76-77. Justice of the Peace not a " State court," 74. "Record," 61. "Suit;" "action;" "case;" "cases inlaw and equity," 56. Suit "arising under a law of the United States," 56. "Any suit * * now pending," S3. '■'■Before or at the term, at which the cause could be first tried," 1%-81, passim. "Trial," 81. "Trial" and "Hearing," 73. "Pinal Trial," 74, 75. 1S8 INDEX. J. JOINDER. See Parties ; Causes of Action. JOENT-STOCK COMPANIES. Diversity of judicial decisions as to the right of, but partially en- dowed with the attributes of corporations, to sue in, or remove cause to Federal court, 70, note. JUDGMENT. "Final judgment; — meaning of the phrase in the Acts of 1867, and strilsing illustration, 76, 77. JUDICIAKY ACT. The Federal Judicial Sj'stem, as established by the Act of 1789; — its nature, extent and wisdom pointed out, 1-2. Its growth and importance, 2-3. Text of section 12, 9, n. 1. Citizenship of the parties as the ground of removal under sec. 12 of this Act, 13-14. Jurisdiction of the Circuit Coiu-t under sec. 11 of the same Act, 14. "What circumstances must concur to give the power of removal under sec. 12 of this Act, 17-18. JURISDICTION. As to JtiRiSDiCTiON of State Courts, see State Courts. As to Jurisdiction of Federal Courts, see Federai> Juris- diction. Conflict of jurisdiction; comity; expense and embarrassment re- sulting therefrom, 108-109, note. JUSTICE OF THE PEACE. Not a " State court," within tiie meaning of the Act of 1867, 74, n. 1. LACHES. In making up issues, how affect party applying for removal of ehancery cause, 80, note. Effect of local law requiring replication to complete issue, when, there is no default in malting up the issues by the applicant for removal, 80, note. LAND TITLE. Case relating to, not one of Federal jurisdiction, except when, 40, § 31, and note 1. LAW ACTION. See Practice and Pleading. LOCAL INFLUENCE. Affidavit of, not required by the Act of 1866, 20, note. The Act of March 2,1867. Chap. II, pp. 21-26; and see ^5, et seq- INDEX. IS^ LOCAL INFLUENCE— Continued. Construction and extent of application of this Act, 23, n. 1. Affidavit of, sliould be made by the party himself, If possible, 85- By whom made, if filed on behalf of a corporation, 85. Whether an attorney may make the affidavit in any case, 86. M. MANDAMUS. From Federal to State court not authorized, unless when, 62, note- Writ of, or other process, to restrain State court from proceeding with cause remanded, not issued by State Supreme court until when, 106, n. 2. MINING CLAIMS. Removal of suits in relation to, under Act of 1875, 39, n. 2. JIISTAKE. See Amendments; Petition; Citizenship. Pkactice AND Pleading. MODE OF MAKING APPLICATION. See Bond; Petition; Affi- davit; Practice; Local Influence. Exposition of subject in full. Chap. XVI, pp. 81-91. MUNICIPAL COEPORATIONS. See also Corporations; Citizen- ship. For jurisdictional purposes, governed by same principles as pri- vate corporations, 70. Season why a citizen of another State should have his remedy against a municipal corporation in the Federal court, 70, n. 1. The Federal jurisdiction over, cannot be ousted by State statutes, 70, n. 1. N. NATIONAL BANKS. Citizenship of, for jurisdictional purposes, 71-72. Excluded from the provisions of the Act of July 27, 1868, 72. But entitled to removal under any of the other Acts, 72. A similar right not granted to tlie Seceivers of such associations,. 72. NOMINAL PABTIES. See Parties. NOTICE. Adverse party not entitled to, of time and place of filing peti- tion. 92, n. 2. O. OFFICERS. As to Officers of Corporations, see Corporations. Suits against Seoemie Officers of the United States, and against 160 UVDEX. •OFFICEES— Continued. officers and other persons acting under the Begistration Laws, when removable, and when not, under '■'■Force Act," 4, § 5, and note, 4r-5. P. PARTIES. Who are, and who are not, nominal parties, 16, n. 3. Nominal parties, as affecting the right of removal, 16, n. 3. Fraudulent joinder of parties, 16, n. 3. Officers of a corporation, in what sense nominal parties as defend- ants to a bill in equity, 16, n. 3. In an action for joint indebtedness, under the Acts of 1866 and 1867, 18, note. Parties entitled to removal under Judiciary Act, 13, 14. See also 67. Parties entitled to removal under Act ©f 1866, 19-21. See alao 67, 78. Parties entitled to removal under Act of 1867, 22-25. See also 67. Joinder of resident and non-resident plaintiffs under this Act, 24, note. Necessary party, though refused by State court the right to be- come a party, entitled to removal, 42-43, note. Parties entitled to removal under Act of March 3, 1875. Chap. XIV, 67-72. Citizenship of the parties to the record alone determines the juris- diction, — not that of parties beneficially interested, 68. Who are parties to a bill in equity tiled by complainant in behalf of himself and such others as might come in, etc., 68, n. 1. PAETNEES. Eight of one of several co-partners to remove cause as to himself under Act of 1866, 73. PETITION. Verification of, under sec. 12 of Judiciarj' Act, 18, n. 1. Eequisites of, under Eev. Stats., § 639, 84-85. Under Act of '1867 (Eev. Stats., § 639, sub-div. 3), 85-87. Eequisites, function and effect of petition, under Act of March 3, 1875, 87-89. No necessity of verification, 87. Wlieu necessary to state that the case is one " arising under the Constitution, or laws or treaties of the United Stales," 89. Effect of petition and bond for removal on jurisdiction of State court. Chap. XVII, pp. 91-92. A petition founded on the Act of 1867, though showing no right under that Act, held sufficient to effect removal under Act of 1866, 93, note. The filing of petition and bond with the clerk of the State court INDEX. 161 PETITION— Co nt i imed . in vacalion, ipso facto ousts the jurisdiction of State court, 97, Amendment of, after removal had, when allowed, 99. The facts set out in, subject of inquiry by the Federal courts ex- clusively, 105. Forms of petitions for removal. See Appendix B. PLEADING. See Practice and Pleading. PRACTICE AND PLEADING. See also, Repleader ; Amendments ; Affidavits; Remanding Cause; Petition; Bond; Time, and various other appropriate titles. The uuithig of legal and equitable relief in the same suit, in the code States; effect on removal, 51-53. Law action, when removed to Federal court, must proceed as such, 5i, et seq. Uniform practice in equity causes after removal, 57. Proper practice after removal, where the suit in the State court unites legal and equitable grounds of relief or defense; neces- sity of repleader in such case, 58, §§ 45, 4G, 47, and notes. Piling of new declaration required under Judiciary Act, 59, note. What is a snfHcient averment of citizenship of corporations, to sus- tain Federal jurisdiction, 70, note. Proper practice in regard to affidavit of local influence 'or preju- dice, 85, et seq. Mode of effecting removal under Act of March .3, 1875, 87-91. Qucere wiiether parties can remove a cause by a stipulation of the jurisdictional facts, 92, u. 1. Nature of issues to be tried and judgment to be rendered, not changed by removal, 92, n. 2. Manner of procedure in Federal court, after removal is effected ; — effect and force of copies of the pleadings in State court, 98, et seq. New pleadings not generally necessary, though sometimes advis- able, 99. Amendments in respect to jurisdictional facts, when allowed, 99. Case of petitioning plaintiff, whose attorney had misstated his citizenship, 99, n. 5. Proper practice, where State court has improperly ordered re- moval, 106. Remedy where State court improperly asserts jurisdiction, and denies the removal, 107, et seq. Sufficient averment of citizenship exemplified, 107, n. Remedy where Federal court entertains jurisdiction over cause improperly removed, 110. Second removal after cause remanded to State court, 110, 111. PP.EJUDICE. See Local Influence. PROBATE OF WILLS. See Wills. (11) 162 INDEX. K. EAILWAY FORECLOSURE. See Suits. EEBELLIOKT, THE. Suits for acts done during, when removable under Act of March 3, 1863, and Act of Marcli 2, 1867, 5. RECEIVERS. See National Banks. itECORD. Meaning of " record " in sec. 7 of tli 5 Act of March 3, 1875, 61. KEMAXDIISTG CAUSES TO STATE COURT. The subject expounded, Cliap. XIX, pp. 101-111. Uniform practice as to remanding cause before the Act of 1875, 101. Practice wider that Act, 101, et seq. Duty of Circuit Court, under 5th section of the Act, 102. When a cause once removed will not be remanded for defects or irregularities, 102. Motion to remand, must be based on what; plea in abatement, 105. Motion to remand, when proper; when not, 105, n. 1. When cause should be remanded at any stage of proceedings, 105. Truth of averments in petition not inquired into on motion to re- mand, 106, n. 1. Remedy, where Federal court improperl}' remands, or refuses to remand, cause, by writ of error or appeal to Supreme Court, 106. Remanding cause, does not operate as discontinuance, 106, u. 3. EEMEDIES. See Practice, and various other appropriate titles. 3REM0VAL ACTS. Statutes giving the right of removal in special cases, mentioned, 4-7. Acts of general operation, 8-11. Construction of sees. 641 and 642 of the U. S. Revised Statutes, 4, n. 2. The "Force Act" of March, 2, 1833. Its provisions; — its re-en- actment; — construction ;— cases removable under it, 4-5, note. Section 644, Rev. Stats., in regard to suits by aliens, 6-6. The Act of March 3,, 1863, as to removability of suits for acts done during the late rebellion, 5, n. The Act of March 2, 1867, as to same, 5, n. The Act of July 27, 1868 (Rev. Stats., sec. 640), as to suits against Federal Uorporations. Text of the statute, 6, n. 2. Provisions, scope, construction of this Act, 6-7. Section 12 of the .Judiciary Act; text of, 9 note. Act of July 27, 1S66; text of, 9, note.— Chap. VI, pp. 19-21. Act of March 2, 1867; text of, 9 note. Chap. VII, pp. 21-26. iRevised Statutes, sec. 639; text of, 9-11. INDKX. 163^ REMOVAL ACTS— ContiLued. Validity of the Acts, 10-12. Construction of the Act of 1866, as to cases where there can be a partial final deteiniination of the controversy, 19, n. Limited practical value of the Act, 20. ^^ . ,, Act of March 3, 1875; text of, 10, note. //y7 / '^ •' Nature and extent of right given by this Act, pp.;'26-40. Previous Acts, as embodied in Eev. Stats., sec. 639, how^affected^ by implication, by the Act of 1875, 28,29. REPLEADER. When necessary after removal of cause to Federal court, 58, 59. When not necessary, but advisable, 59, § 47. REPLEVIN. See Suits. RESIDENCE. See Domicile; Citizenship; Federal Jurisdiction^ REVENUE LAWS. What are, under Act of March 2, 1833, 5. RIGHT OF REMOVAL. Material elements of the right, under the principal statutes^ Chap. IV, 12-13. The right, as based upon citizenship of the parties, under sees. 11 and 12 of the Judiciary Act, 13, 14. Necessary conditions, under sec. 12 of Judiciary Act, upon which the right depends, 17-18. Right to successive removals by different defendants, under va- rious Removal Acts, 17, n. 1. Conditions that must co-exist to authorize removal under the- Act of 1866, 19. Conditions under Act of 1867, 22, et seq. Right, as affected by citizenship, under same Act, 23, et seq, n. Right, under this Act, to remove suits on account of "prejudice," conditioned on what, 23. Nature and extent of, under Act of March 3, 1875, pp. 26-40. Where main controversy is between citizens of different States, case removable, and carries with it all incidents, 41-42, note. Right of removal sustained, where a necessary party had been wrongfully excluded by the State court, 42-43, note. Right of joint-stock companies but partly endowed with attributes of coiporations, 70. Right of corporation of another State to remove cause commenced by attachment of property, 71. State legislation powerless to defeat this right, 71. Right of corporations chartered by foreign countries, 71. Right of national banks to sue in Circuit court under any of the- Aets, except that of July 27, 1868, 72. Right of removal, how affected by laches of party applying there- for, in case of a chancery cause, 80-81. 164 INDEX. EIGHT OF EEMOVAL— Continued. And how affected by local laws requiring replication to complete the issue, in the absence of laches on the part of the applicant, 80, note. Failure of party entitled to removal to apply for the transfer be- fore proceeding to trial, defeats his right at subsequent term, under Act of 1875, 81, n. 1. Wlien once perfected, the right of removal not taken away by subsequent amendment in the State court, or otherwise, 93-94. Eight not waived by party entitled to removal contesting in State court asserting jurisdiction after proper application, 107, et seq. Eight to second removal of cause, once remanded, 84, 110, 111. EIGHT OF SUFFEAGE. Not considered in determining State citizenship for jurisdictional purposes, 67, n. 1. S. SLANDEE. An action of, when removable under " Force Act," 5. SPLITTING ACTION . Under Act of 1866; obvious purpose; probable reason for, 20-21. Not admissible under Act of 1867, 23, n. 1. Nor under the Act of 1875, 30, 31. .STATE COUETS. From what courts removal may be had. Chap. XII, pp. 60, 61. Proceedings in, after removal, not stayed by writ from Federal court, 62, note. Do not embrace "Justices of the Peace," within the meaning of the Act of 1867, 74. Nor Territorial- courts, within the meaning of the Act of 1875, even after admission of the territory as a State, where the suit was brought in the territorial court, 82. Duty of, upon filing of proper petition and offer of suffloient surety, 91, et seq. Whether order of removal is necessary, where the petition pre- sents a case within the Eemoval Acts, 92-94. Exercise of jurisdiction by State court, subsequent to filing of petition and bond, erroneous. 92. Jurisdiction not ousted, where petition and pleadings do not show removable case, 94. Semble, same principle applies, where no security or bond was offered, 95. i^cBre, whether State court has power, under Act of 1875, to judge of the sufHciency of surety offered, 95. An erroneous determination, by State court, as to sufficiency of petition neither confers nor ousts Federal jurisdiction, 97. INDEX. 165 STATUTES. See also Removai. Acts. Si'ction 641, Eev. Stats., construed by U. S. Supr. Court, 41-45. The Fourteenth Amendment considered in comparison with §641, 43-45. Construction of § 643, Eev. Stats., as to actions against Federal officers, 46-48. SUBJECT-MATTER. In respect of, what suits may be removed under Act of 1875, 27. The subjeot-matter of the controversy must be money, or some- thing capable of pecuniary estimation, 62. Requisites of petition in regard to, under Act of 1875, 87. ^UITS. Xature of, that may be removed, under special statutes, 4-8. Under the Judiciary Act, 14, et seq. Under the Act of 1866, 19, 20. Under the Act of 1867, 23, et seq. Under the Act of 1875, 26, et seq. ; 30-40 passim. Suits involving construction of the Bankrupt Act, removable under Act of 1875, 39, n. 2. Suit involving title to land, when only removable, 40. Suit in relation to mining claims, when removable, 39, n. 2. Nature of, that may be removed under the several Removal Acts; practice as to repleader. Chap. XI, pp. 48-59. Suit to determine value of land appropriated under right of emi- nent domain, 49, n, 3 ; 53, n. 1. Suits by attachment, 53, n. 1. Ejectment actions, 53, n. 1. See also, 5, n. Controversies as to the validity of an attachment, 53, n. 1, Original suit which may be removed, and supplement or sequence of former suit, distinguished, 51, note. A bill in equity to reform an insurance policy, 51, note; 53, not*. Suit against garnishee as co-defendant, 51, note. Party brouglit into State court by order to interplead, if otherwise qualified, may remove the cause, 52, n. 1. Suit removable by complainant, when, though equitable defenses are set up by defendants between themselves, 52. n. 1. Action by attorneys to recover fees, removable when, 52, n. 1. Proceeding by mandamus in State court, under statutes of Kansas, to compel defendant company to register transfer of certificates of stock held by plaintiff, removable, 52, u. 1. But mandamus suit in State court not removable on plea raising issue of title to office, 52, n. 1. Action in nature of quo warranto to determine title to the offices of President and Vice Pres. of U. S., not removable, 52, n. 1. Suit in I'eplevin, removable under Act of March 3, 1875, 53. Special statutory preceeding to confirm a tax title, 53, n. 1. 166 INDEX. SUITS— Continued. Suits to annul a will, in effect suits in equit}', and, removable un- der Act of March 2, 1S67, 53, n. 1. Suits for the establishment of claims against the estates of de- ceased persons, probate of wills, etc., 53-55, note. Suits in State court, to restrain execution of a judgment by a seiz- ure of plaintiff's lands, removable,J55, note. Railway foreclosure suit removable underJAct of 1875 ; right sus- tained even when, 55, note. Removal of torts; — conspiracy, 56. Definition of "suit," "action," "case," "cases in law and equity," 56. Suits '■^arising under a law of the United States," 56. " >4ra2/ suit * * Hoto^encZ!n3" (Act of 187S, sec. 2) construed; — what cases embraced by this term, 83, 84. SURETY.— BOND. See also Bond. Requirements of sec. 639, of the Rev. Stats, as to, 90. Same, under sec. 3 of the Act of 1875, 90. Construction of this section, 91. What irregularities will be deemed important, and wliat unim- portant, 91. T. TERRITORIAL COURTS. ■ eaa. Are not " State courts," within the meaning of the Act of 1875, even after admission of the Territory as a State, 82, n. "THE FOURTEENTH AMENDIVIENT." See Statutes. " THE REMOVAL UASES." Rulings by the U. S. Supr. Court upon several important ques- tions under Act of 1875, 34-38. Pull text of opinion in, 113-130. TIME OF APPLICATION. Full discussion of subject. Chap. XV, pp. 73-84. When removal must be applied for, under Act of 1875, 28. When application for removal must be made under sec. 12 of the Judiciary Act, 73. The right of removal, under this provision, deemed waived, when, 73, § 58. Right of different defendants to remove at different times, 73, n. 1. Application too late after reference and continuance, 73, n. 1. Right of defendants to remove gone, after taking opinion of State court, by one of the material defendants, upon a question that goes to the merits, 73, n. 1. The filing of a pleading or agreement by the defendant, when " the entering of an appearance," 73, n. 1. INDflX. 167 TIME OF APPLICATIOX— Continued. I State court may not restore right by allowing- an appearance nunc pro tunc, 73, n. 1. Enlarged time under Acts of 1856 and 1867, 73, § 59. The words "trial "and "hearing" refer respectively to what, 73, § 59. ''Final trial" defined, within the meaning of "he Act of 1867, 74-75. Application, under Acts of 1S66 and 1867, when too late, 74-75. Finzl j!(*/nie«*;— construed in reference to time of application under same Acts, 74-77, j^assim. Application not too late, under Acts of 1866 and 1867, where the trial court has set aside verdict and granted new trial, 75, § 60, and note 3. Same principle applicable to Act of 1875, as to what causes, 75. So, also, where the State appellate court has wholly reversed judgment and remanded case, 75. Conflicting doctrines on this point announced by the State and Federal courts, with enumeration of the most important cases in support of both doctrines, 75, n. 2; 76, n. 1. A new and interesting point, now awaiting decision in U. S. Su- preme Court, 76, n. 1. Application, when too late under Act of 1875;— the question, as affected by State legislation (Ohio and Minnesota), as to effect of first judgment and of proceeding for review, 77, n. 1. See also The Removal Cases, Appendix A, 113, et seq. The provisions of the Act of 1875, in regard to the time for removal, 78, et seq. ^' Before or at * * " tfte ferm at which the cause could he first tried," construed, 79 et seq., passim. Chancery cause cannot be tried until issues are made up ; applica- tion lor removal of such cause,'when in tiaie, 80, note. Whether laches in^makiug up issues will defeat right of removal, 30, note. The word " trial," as used in sec. 3 of the Act of 1875, in refer- ence to the time when removal must be applied for, construed, 82, note. The objection in the Federal court, "that the application for re- moval was not made in time in the State court," deemed waived when, 83, § 66, and note 2. Time allowed defendant under Revised Statutes, sec. 639, and under sec. 7 of the Act of 1875, for filing copies of the record and entering his appearance, 103-104, § 85. See also, 104, n. I. Time of filing record; effect of delay, 104. TOETS. Action of tort, when removable under Acts of 1866 and 1867, 56. 168 INDEX. TEIAL. See also Time of Application. Every tnal final, until in some form vacated, 78. Doctrine applied to cause, where verdict has been rendered, and a motion to set the verdict aside is pending, 77, § 62. The word " trial " construed, as used in sec. 3 of the Act of 1875, in reference to time when removal must be applied for, 81, n. 2, Term of court at which a cause might be finally heard, governed by the loca. law and practice, 82, n. '■•Any suit * * 7iow pending^'' (sec. 2, Act of 1875) eonstrued; what cases fall into the category intended by this language, 83.. TRUSTEES. See Citizenship. V. VALUE OK AMOUMT IN DISPUTE. Under Act of March 3, 1875, 27; Chap. XIII, pp. 62-66. It must exceed a certain amount, 63. How determined, 63. Case of an action for an amount less than $500, where defendant pleads a counterclaim exceeding that sum, 64, et seq. Eequisites of petition, in regard to amount in dispute, 87, § 70. VEBIFICATION. See Petition. W. WAIVER. What constitutes a waiver of the right of removal, under sec. 12 of the Judiciary Act, 73. Of the objection to the removal, "that the application was not made in time in the State court," by acquiescence, 83, § 66. Objection not made in proper time, deemed waiver, 83, § 66. And such waiver conclusive, when, 83, n. 2. Case where the objection was allowed at next term, S3. When waiver of objections|on account of irregularities in bond will be presumed, 91. • Waiver of right to have cause remanded, 101, n. 2. Waiver of right of removal by subsequent conduct, 102, e« seq. Appearance of party entitled to removal, after proper application^ in State court refusing the transfer, not a waiver, 107. Practice in such case;— the proper remedy, 107, § 88. WILLS. See also Suits. Removabilitj- of suits concerning probate of, etc., 53, etseq.