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 Daugrliter 
 A. m. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 87141887 
 
 The Federal Judiciary Acts of 1875 and 1 
 
 3 1924 020 607 184 
 
Cornell University 
 Library 
 
 The original of this 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/cu31924020607184 
 
THE 
 
 FEDERAL JUDICIARY ACT 
 
 OF 1875 AND 1887. 
 
 WITS AN APPENDIX CONTAINING THE EQUITY RULES. 
 
 ANNOTATED BY 
 
 E O G E E ^O S T E E , 
 
 OF THE NEW TOEK BAK. 
 
 NEW rORK : 
 
 L. K. STEOUSE & 00., Law Publishers, 
 95 Nassatj Street. 
 
 1887. 
 

 Copyright, 18S7, 
 Bt KOGER FOSTER. 
 
TABLE OF CASES. 
 
 Ackley School District ▼. Hall, 24. 
 Adams v. Board of Commissioners, 6. 
 Adams Express Co. v. Denver & R. 
 
 a. By. Co. 8. 
 Akers v. Akt-rs, 34. 
 Alabama v. Wolffie, 11. 
 Albright v. Teas, 8. 
 Allen V. Ryerson, 35. 
 Alley V. Nolt, 30. 
 Ames V. Kansas, 3, 10. 
 Amory v. Amory, 34. 
 Amy V. Dubuque, 18. 
 Andreweg v. Smith, 20. 
 Anonymous, 38, 47. 
 Atkins V. Wabash, St. L. & P. R. R. 
 
 Co. 20. 
 Attleborough Nat. Bank v. N. W. 
 
 Mfg. &c. Co. 19. 
 Ayers v. Watson, 35, 37. 
 Ayres v. Wiswall, 28. 
 
 Baker v. Sleight, 29. 
 
 Baldwin v. Franks, 56. 
 
 Baltimore &0. R. R. Co. v. Bates, 57. 
 
 Bank of Augusta v. Earle, 14. 
 
 Barber v. Barber, 5. 
 
 Barclay v. Levee Comm'rs 35. 
 
 Barnesville & M. Ry. Co., Matter of, 
 
 49. 
 Barney v. Baltimore, 11. 
 Barney v. Globe Bank, 33. 
 Barney v. Latham, 10, 29. 
 Barron v. Burnside, 27. 
 Barrow v. Hun ton, 15, 19. 
 Barry v. Edmunds, 6, 41. 
 Barry v. Mercein, 5, 28. 
 Bartlett v. Sultan of Turkey, 53. 
 Barton v. Barbour, 51. 
 Bath County v. Amy, 3. 
 Beach v. Mosgrore 51. 
 Bean v. Smith, 33, 34. 
 Bein v. Heath, 17. 
 
 Bell V. Noonan, 30. 
 
 Bernard's Township v. Stebbins, 43. 
 
 Bible Society v. Grove, 57. 
 
 Bills V. New Orleans &c. R. R. Co. 45. 
 
 Biuinger, In re, 3. 
 
 Black V. Thorne, 14. 
 
 Blair v. St. Louis, H. & K. R. Co. 
 
 58. 
 Blake v. McKim, 10. 
 Blanchard v. Dwight, 37. 
 Bondurant v. Watson, 34. 
 Bonnafee v. Williams, 11. 
 Boom Co. V. Patterson, 5. 
 Borer v. Chapman, 16. 
 Bora v. Preston, 12,41. 
 Boston Electric Co. v. Electric Gas- 
 
 Light Co. 14. 
 Bowen v. Chase, 33. 
 Bowen v. Christian, 52. 
 Bowman v. Ely, 30. 
 Boyle V. Zacharie, 17. 
 Briges v. Sperry, 46. 
 Briggs V. French, 12. 
 Brigham v. Luddington, 51. 
 Bright V. Milwaukee &c. R. R.Co.48. 
 Brine v. Insurance Co. 17, 18. 
 Broderick's Will, 18. 
 Bronson v. Keokuk, 51. 
 Brooks V. Clark, 39. 
 Browne v. Browne, 13. 
 Bruce v. Manchester & K. R. R. Co. 
 
 5, 6. 
 Bryant v. Thompson, 46. 
 Buck V. Piedmont & A. Ins. Co. 19. 
 Buckner v. Fjnley, 20. 
 Budge v. Northam, 80. 
 Buford V. Strother, 16. 
 Burdick v. Hale, 36, 37. 
 Bushnell v. Kennedy, 21, 23, 46. 
 
 C. I. & N. P. R. Co. v. M. & N. W. 
 R. Co. 31. 
 
IT 
 
 TABLE OF CASES. 
 
 Calcutta Jute Mills Co. v. Nicholson, 
 
 14. 
 Carricb v. Landman, 28. 
 Oarrington v. Florida R. E. Co. 46. 
 Carson, v. Dunlaam, 34, 36, 37, 43. 
 Carson v. Hyatt, 10. 
 Case V. Clarke, 13. 
 Catlett v. Pacific Ins. Co. 12. 
 Central Trust Co. v. Wabash St. L. 
 
 & P. R. R. Co. 30. 
 Chapman v. Barger, 16. 
 Chapman v. Borer, 19. 
 Chappedelaine v. Dechenaux, 34. 
 Charlotte v. Chonteau, 30. 
 Chesapeake & 0. R. R. Co. v. White, 
 
 31. 
 Chicago, St. P. M. & 0. Ry. Co. v. 
 
 Dakota Co. 11. 
 Childress v. Emory, 24. 
 Christmas v. Rufsell, 15. 
 Civil Rights Cases, 56. 
 Claflinv. Insurance Cos. 27, 30. 
 Clark V. Smith, 17, 18. 
 Clarke v. Mathewson, 15. 
 ClarkbufE v. Wisconsin I. & N. R. R. 
 
 Co. 42. 
 Clarkson v. Msnson, 28. 
 Cleveland Ins. Co. v. Reed, 18. 
 Coal Co. V. Blatchford, 10, 11. 
 Cohb V. Globe Mutual Ins. Co. 49. 
 Coburn v. Cedar Valley L. & C. Co. 
 
 35, 37. 
 Cohens v. Virginia, 7. 
 Colson V. Lewis, 13. 
 Commercial & S. Bank v. Corbett, 49. 
 Commissioners v. Aspinwall, 3. 
 Conn. Mut. L. I. Co. v. Cushman, 18. 
 Continental Store Service Co. v. 
 
 Clark, 8. 
 Cook V. Hager, 14, 
 Cook V. Whitney, 30. 
 Cooke V. Seligman, 34, 37, 38. 
 Cooper V. Galbraith, 13. 
 Corbin v. County of Black Hawk, 23. 
 Core V. Vinal, 29. 
 Cortes Co. v. Thannhauser, 51, 53. 
 County of Greene v. Daniel, 3. 
 County of San Mateo v. Southern 
 
 Pac. R. R. Co. 3. 
 
 County of Tazewell v. Farmers' L. & 
 
 T. Co. 43, 44. 
 Cowardin v. Universal L. I. Co. 14. 
 Cowles v. Mercer Co. 11, 17. 
 Crellin v. Ely, 53. 
 Crescent City Co. v. Butcher's Union, 
 
 9. 
 
 Cummings v. National Bank, 17, 18. 
 
 t 
 Dart V. McKinney, 45. 
 
 Davenport v. County of Dodge, 3. 
 
 Davies v. Corbin, 3, 6. 
 
 Davies v. Lathrop, 11, 24, 41. 
 
 Davis V. James, 18. 
 
 Davis V. St. Louis & S. F. R. R. 
 
 Co. 46. 
 De Krafft v. Barney, 38. 
 Delancy v. Wallis, 52. 
 Dennis v. County of Alachua, 33( 35, 
 
 37. 
 Dennistoun v. Draper, 39. 
 Deshler v. Dodge, 23. 
 Detroit V. Dean, 43. 
 Dinsmore v. Phlla. & R. R. R. Co. 11. 
 Dow V. Chamberlin, 17. 
 Doyle V. Continental L. I. Co. 37. 
 Dudley v. Mayhew, 57. 
 Duncan v. Gegan, 46. 
 Dunn V. Clarke, 15. 
 Dwight V. Central Vt. R. R. Co. 19. 
 
 Eokert v. Banert, 53. 
 
 Edwards v. Conn, Mut. L. I. Co. 4G. 
 
 Elgin V. Marshall, 5. 
 
 Ellis V. Davis, 4, 16, 17. 
 
 Endy v. Commercial F. I. Co. 35. 
 
 Estes v. Gunter, 6. 
 
 Etting V. Mars, 18. 
 
 Evans v. Davenport, 18. 
 
 Everhart v. Huntsville College, 12. 
 
 Express Co. v. Kountze, 13. 
 
 Falls Wire Mfg. Co. v. Broderick, 
 
 28. 
 Fargo V. L. N. A. & C. Ry. Co. 11. 
 Farlow v. Lea, 11. 
 Farmington v. Pillsbury, 43. 
 Fidelity Ins. Co. v. Huntington, 39. 
 Fidelity Trust Co. v. Gill Car. Co. 46. 
 Fisk, Ex parte, 39. 
 
TABLE OF CASES. 
 
 Fisk V. Union Pacific R. R. Co. 37, 
 
 46. 
 Fitcli V. Creighton, 17, 18. 
 FJasli V. Dillon, l(j. 
 Fletcher v. Hamlet, 29. 
 Fogg V. St. Louis H. & K. R. R. Co. 
 
 19. 
 Forsytli v. Pierson, 51. 
 Fouvergne v. New Orleans, 4. 
 Frank V. Avery, 33. 
 Eraser v. Jennison, 38. 
 Freeman v. Howe, 15. 
 FrelingUuysen v. Baldwin, 30. 
 French v. Roe, 53. 
 Friedman v. Israel, 39. 
 Friezen v. Allemania F. 1. Co. 46. 
 Fuller V. County of Colfax, 5. 
 
 Gaines v. Fuentes, 4, 16, 17. 
 
 Gassies v. Ballon, 13. 
 
 Gibbs V. Crandall, 9. 
 
 Gibson v. Bruce, 34. 
 
 Oilman v. Perkins, 19. 
 
 Gloucester Ferry Co. v. Pennsylva- 
 nia, 37. 
 
 Godden v. Kimmell, 18. 
 
 Gold Washing & Water Co v. Keyes, 
 9, 34. 
 
 Gordon v. Hobart, 17. 
 
 Grace v. American Cent. Ins. Co. 31, 
 34, 41. 
 
 Gracie v. Palmer, 14. 
 
 Graham v. B. H. & E. R. R. Co. 11. 
 
 Graham v. Norton, 3. 
 
 Green v. Custard, 27. 
 
 Greene County v. Daniel, 3. 
 
 Greenwood v. Freight Co. 43. 
 
 Gregory v. Hartley, 30. 
 
 Hagan v. Lucas, 19. 
 Hamilton v. Chouteau, 19. 
 Hanover Nat. Bank v. Smith, 37. 
 Hans V. Louisiana, 9. 
 Hartell v. Tilghman, 8. 
 Barter v. Kernochan, 10. 
 Hartog V. Memory, 41. 
 Harvey v. Virginia, 9. 
 Hat Sweat Manufg. Co. v. Reinoehl, 
 8. 
 
 Hawes v. Oakland, 43. 
 
 Heath v. Erie Ry. Co. 53. 
 
 Heidritter v. Elizabeth Oil-Cloth Co. 
 19, 30. 
 
 Hendrickson v. Chicago R. I. & P. 
 R. R. Co. 46. 
 
 Hepburn v. Ellzey, 11. 
 
 Herndon v. Ridgway, 53. 
 
 Hess V. Reynolds, 4, 16, 57. 
 
 Hinckley v. Railroad Co. 39. 
 
 Hitner v. Buckley, 53, 53. 
 
 Hoadley v. San Francisco, 31. 
 
 Hodge y. Hudson River R. R. Co. 
 14. 
 
 Holland v. Challen, 17, 18. 
 
 Holland v. Cliambers, 56. 
 
 Hone V. Dillon, 30. 
 
 Hook V. Payne, 16. 
 
 Houser v. Clayton, 35. 
 
 Houston & T. C. R. R. Co. v. Shir- 
 ley, 29, 34. 
 
 Hovey v. Rubber Tip Pencil Co. 57. 
 
 Hubbard v. Bellew, 19. 
 
 Hull v. Dills, 19. 
 
 Hummel v. Moore, 46. 
 
 Huntington v. Palmer, 43. 
 
 Hurd V. Moiles, 30. 
 
 Hurt V. Hullingsworth, 45. 
 
 Hutchinson v. Green, 19. 
 
 Hyde v. Ruble, 38, 56. 
 
 Hyde v. Stone, 16. 
 
 Ingersoll v. Wilson, 30. 
 Insurance Co. v. Comstock, 31. 
 Insurance Co. v. Dunn, 31, 38. 
 Insurance Co. v. Morse, 37. 
 Iowa & Minn. Construction Co. In 
 re, 19. 
 
 Johnson v. Johnson, 5. 
 Johnson v. Monell, 39, 30. 
 Johnston v. Donvan, 35. 
 Jones V. Andrews, 15. 
 Josslyn f. Piiillips, 38. 
 
 Kanouse v. Martin, 27, 31. 
 Kansas v. Bradley, 9. 
 Kauffman v. Kennedy, 46. 
 Kelly V. Virginia P. I. Co. 46. 
 
Yl 
 
 TABLE OF CASES. 
 
 Kenwortliy v. Accunor, 53. 
 Kern v. Huidekoper, 19, 38. 
 Kerr v. Whitaker, 33. 
 Kilgour V. New Orleans G. L. Co. 
 
 51. 
 King V. Cornell, 56. 
 King V. Wilson, 6. 
 Kirby v. Lake Shore & M. S. Ry. Co. 
 
 18. 
 Kirk V. Milwaukee D. C. Mfg. Co. 
 
 39. 
 Kounsalear v. Clarke, 33. 
 
 Krippendorf v. Hyde, 15. 
 
 Kurtz V. Moffitt, 38. 
 
 Lacroix v. Lyons, 43, 45. 
 
 La Mothe Mfg. Co. v. National T. 
 
 W. Co. 45. 
 Lanier v. Nash, 43. 
 Lanz V. Eandall, 13. 
 Leather Manuf'rs. Bank v. Cooper, 
 
 9, 39, 55. 
 Lee V. Lee, 5, 38. 
 Levi V. Columbia Ins. Co. 19. 
 Levy V. Laclede Bank, 20. 
 Lewis V. Fire Ins. Co. 30, 33. 
 Little V. Giles, 39, 43. 
 Liverpool Ins. Co. v. Massachusetts, 
 
 11. 
 Loomis V. Carrington, 46. 
 Lorman v. Clarke, 17. 
 Louisiana v. Jumel, 3. 
 Louisville, C. & C. R. R. Co. v. Letson 
 
 11. 
 Louisville & N. R. R. Co. v. Ide, 38, 
 
 39. 
 
 Mac Naughton v. Southern Pao. C. 
 
 E. R. Co. 35. 
 Mahoney Mining Co. v. Bennett, 49. 
 Maine v. Gilman, 27. 
 Maloy V. Duden, 13, 31. 
 Maltz V. American Express Co. 11. 
 Manhattan Ry. Co. v. New York, 10. 
 Market Co. v. Hoffman, 6. 
 Marshall v. Balto. & 0. R. R. Co. 11. 
 Martin, In, re, 3. 
 Martin v. Thompson, 9. 
 Maryland v. Baldwin, 11. 
 
 Matthews v. Warner, 17. 
 McBratney v. Usher, 49. 
 McClung V. SilHman, 3. 
 McCluny v. Silliman, 18. 
 McCormick v. Gray, 6. 
 McGinnJty v. White, 38. 
 McGregor v. McGillis, 48. 
 McHenry v. N. Y. P. k 0. R. Co. 30. 
 Mclntire v. Wood, 3. 
 Meath v. Phillips County, 18. 
 Merchants' &c. Nat. Bank v. Wheeler, 
 
 45. 
 Mersman v. Werges, 21. 
 Meyers v. Block, 17. 
 Miles V. Scott, 17. 
 Miller v. C. B. & Q. R. R. Co. 30. 
 Miller v. Tobin, 49. 
 Milligan v. Lalance & G. Mfg. Co. 
 
 46. 
 Millison v. Holmes, 30. 
 Minnesota Co. v. St. Paul Co. 15. 
 Miss. & M. R. R. Co. v. Ward, 6. 
 Mix V. Andes Ins. Co. 37. 
 Mollau V. Torrance, 33. 
 Moore v. Chicago, St. P. M. & 0. Ry. 
 
 Co. 11. 
 Mossman v. Higginsou, 11. 
 Muller V. Dows, 11. 
 Murray v. Holden, 38. 
 Murray v. N. J. R. R. Co. 30. 
 Mutual L. I. Co. v. Champlin, 29. 
 
 Neves v. Scott, 17. 
 New Jersey Zinc Co. v. Blood, 30. 
 New Orleans v. Winter, 11. 
 New Providence v. Halsey, 34, 42. 
 New Windsor T. E. v. Wilson, 39. 
 Nickerson v. Atchison, T. & S. F. 
 
 R. R. Co. 17. 
 Noonan v. Lee, 17. 
 
 Ober V. Gallagher, 33, 24, 38. 
 
 Oglesby v. Attrill, 53. 
 
 Ohio & Miss. R. R. Co. v. Wheeler, 
 
 11. 
 Orvis V. Powell, 18. 
 Osborn v. U. S. Bank, 7, 8. 
 Osgood V. Chicago, D. & V. R. R. Co. 
 
 37, 38. 
 
TABLE OP CASES. 
 
 vn 
 
 Ott V. McHenry, 30. 
 
 Owens V. Ohio Cent. R. R. Co. 19. 
 
 Pacific RR. Co. v. Ketchum, 10, 41. 
 Pacific RR. Co. v. Mo. Pac. R. R. 
 
 Co. 15, 53. 
 Pacific R. R. Removal Cases, 7. 
 Parker, In re, 58. 
 Paul V. Virginia, 37. 
 Pawlet V. Clark, 13. 
 Payne v. Hook, 16, 17, 19. 
 Peale v. Pliipps, 19. 
 Pennsylvania v. Quicksilver Co., 13. 
 Peuna R. R. Co. v. St. Louis, A. & T. 
 
 H. R. R. Co. 11. 
 People v. Long Island R. R. Co. 30. 
 People V. "Webb, 30. 
 People V Williams, 30. 
 People V. Wright, 30. 
 Perkins v. Hendryx, 45. 
 Plielps V. Canada Cent. R. Co. 39. 
 Phelps V. -Elliott, 45. 
 Phelps V. O'Brien County, 17. 
 Phila. Fire Ass'n v. New York, 37. 
 Picquet v. Swan, 51. 
 Pilla V. German School Ass'n, 45. 
 Pirie v. Tvedt, 39. 
 Plymouth Mining Co. v. Amador 
 
 Canal Co. 39. 
 Poole V. Thatcherdeft. 16. 
 Pratt V. Fitzhugh, 5, 38. 
 Providence & M. Y. S. S. Co. v. Hill 
 
 Mfg. Co. 54. 
 Provident Savings Society v. Ford, 
 
 9,10. 
 Public Grain &c. Exchange v. W. U. 
 
 Tel. Co. 37. 
 Pulliam V. Pulliam, 18. 
 Pullman Palace Car Co. v. Speck, 38. 
 Putnam v. Ingraham, 38, 39. 
 
 Quincy v. Steel, 43, 44. 
 
 Rabaud v. De Wolf, 13. 
 Railroad Co. v. Hftrris, 11. 
 Railroad Co. v. Koontz, 48, 49. 
 Railroad Co. v. Wiswall, 31. 
 Railroad Companies v. Chamber- 
 lain, 15. 
 Railway Co. v. Ramsey, 84. 
 
 Railway Co. v. Wliitton, 11, 17. 
 Rateau v. Bernard, 11. 
 Read v. Consequa, 53. 
 Removal Cases, 10, 31, 35, 38. 
 Reynolds v. Crawfordsville_ Nat. 
 
 Bank, 17, 18. 
 Riggs V. Johnson County, 3. 
 Roberts v. Nelson, 37. 
 Robertson v. Carson, 13. 
 Robinson v. Anderson, 43. 
 Rosenbaum v. Bauer, 3. 
 Ross V. Prentiss, 6. 
 Rowell V. Hill, 48. 
 Rubber Co. v. Goodyear, 53. 
 Rumsey v. Call, 43. 
 Russell v. Farley, 17. 
 
 Sahlgard v. Kennedy, 19. 
 
 St. Clair v. Cox, 14. 
 
 St. Louis cSs S. P. Ry. Co. v. Wilson, 
 39. 
 
 St. Paul & C. Ry. Co. v. McLean, 35, 
 48. 
 
 Sanderson v. Bayley, 58. 
 
 Sands v. Smith, 30. 
 
 San Mateo County v. Southern Pac. 
 R. R. 3. 
 
 Sawyer v. Gill, 53, 53. 
 
 Sayles v. Northwestern Ins. Co. 4G. 
 
 Scharffv. Levy, 30. 
 
 Schnadig v. Flescher, 30. 
 
 Schollenberger, Exparte, 14. 
 
 Segee v. Thomas, 53, 53. 
 
 Sere V. Pitot, 31, 34. 
 
 Seymour v. Phillips Construction Co. 
 15. 
 
 Shaw V. Hamilton, 30. 
 
 Sheldon v. Sill, 31, 33. 
 
 Sheldrick v. Cockcroft, 37. 
 
 Shelton v. Tiffin, 13. 
 
 Shields v. Thomas, 6. 
 
 Sloan V. Smith, 33. 
 
 Sloane v. Anderson, 39. 
 
 Smith V. Qreenhow, 9. 
 
 Smith V. Hortler, 30. 
 
 Smith V. Kemochen, 33. 
 
 Smith V. Railroad Co. 17. 
 
 Smith V. Standard Laundry Machin- 
 ery Co. 8. 
 
 Southern Pac R.R.Co. v. California, 7. 
 
vni 
 
 TABLE OF CASES. 
 
 Soutbwortli V. Adams, 4. 
 
 Sparrow v. Strong, 5. 
 
 Spring Co. v. Knowlton, 46. 
 
 Stafford V. Ainer. Mills Co. 14. 
 
 Starin v. New York, 7, 39. 
 
 State ex rel Barker v. Bowen, 3, 9. 
 
 Steamship Co. v. Tugman, 11, 13, 31, 
 
 34. 
 Stephen v. Cini, 52. 
 Stevens v. Richardson, 37. 
 Stewart v. Dunham, 38. 
 Stoddart v. Nelson, 68. 
 Stone V. South Carolina, 37, 43. 
 Strauder v. West Virginia, 56. 
 Supervisors v. United States, 3. 
 Sutherland v. Jersey City & B. E. 
 
 Co, 33. 
 Sutro V. Simpson, 46. 
 Suydam v. Broadnax, 16. 
 Sweeney v. Coffin, 35. 
 Symonds v. Greene, 6. 
 
 Table Mountain &c. Co. v. Wallers 
 
 &c. Co. 30. 
 Taylor v. Carryl, 19. 
 Taylor v. Holmes, 10. 
 Taylor v. Shew, 37. 
 Tazewell County v. Farmers' L. & T. 
 
 Co. 44. 
 Tennessee v. Davis, 7, 56. 
 Thompson v. Railroad Cos. 17. 
 Tooms V. Randall, 83. 
 Torrey v. Grant Works, 37. 
 Trafton v. Nougues, 34. 
 Tredway v. Sanger, 21. 
 Turner v. Bank of North America, 
 
 12, 23. 
 
 Union Bank v. Jolly, 16. 
 
 Union Mut. L. I. Co. v. Univ. of Chi- 
 cago, 19. 
 
 Union Pacific RR. Co. v. Hall, 3. 
 
 Union Trust Co. v. Rockford, R. I. & 
 St. L. R. R. Co. 20. 
 
 United States v. American Bell Tele- 
 phone Co. 14. 
 
 United States v. New Orleans, 3. 
 United States v. Pratt Coal & Coke 
 
 Co. 7, 35. 
 United States v. Thompson, 18. 
 United States v. Union Pao. R. R. 
 
 Co. 3. 
 United States v. Waddell, 56. 
 
 Van Norden v. Morton, 17. 
 Van Orden, Ex parte, 3. 
 Van Rensselaer v. Douglas, 30. 
 Virginia v. Rives, 56. 
 
 Wagner v. Baird, 18. 
 Ward V. Seabry, 53. 
 Warren v. W. V. R. R. Co. 5. 
 Webb V. Vermont Cent. R. R. Co. 19. 
 Webber v. Humphreys, 16. 
 Weber v. Lee County, 3. 
 Webster v. Crothers, 45. 
 Wescott v. Fairfield, 11. 
 Western Union Tel. Co. v. Atlantic 
 
 & P. T. Co. 54. 
 Wheeler v. McCormick, 14. 
 Whitman v. Hubbell, 6. 
 Williams v. Nottawa, 40, 42. 
 Williams M. & R. Co. v. Raynor, 39. 
 Wilson v. City Bank, 12. 
 Wilson V. Daniel, 6. 
 Winberg v. B. C. R. R. & Lumber Co. 
 
 38. 
 Winchell v. Coney, 48. 
 Winnemans v. Edgington, 36. 
 Wolf V. Conn. Mut. L. I. Co. 38. 
 Wolff V. Archibald, 34. 
 Woodman v. Ijatimer, 6. 
 Woolridge v. McKenna, 13, 35. 
 Wormley v. Wormley, 10. 
 Wormser v. Dahlman, 35. 
 Wright V. Wells, 27. 
 
 Yarbrough, Ex parte, 56. 
 Yonley v. Lavender, 19. 
 Young V. Bryan, 23. 
 Young V. Merchants' Ins. Co. 38. 
 
 Zobieskie v. Bander, 29. 
 
SECTION I. OF JUDICIARY ACT OF 1875, 
 
 AS AMENDED IN 1887. 
 
 PUBLIC -NO. 159. 
 
 An Act to amend the Act of Congress approved March 
 third, eighteen hundred and seventy-five, entitled ' ' An 
 Act to determine the jurisdiction o^ circuit courts of 
 the United States, and to regulate the removal of causes 
 from State courts, and for other purposes," and to 
 further regulate the jurisdiction of circuit courts of the 
 United States, and for other purposes. 
 
 Appeoved Maroli 3, 1887. 
 
 Be it enacted by the Senate and House of Representa- 
 tives of the United States of America in Congress assem- 
 bled. That the first section of an act entitled " An Act to 
 determine the jurisdiction of circuit courts of the United 
 States, and to regulate the removal of causes from State 
 courts, and for other purposes," approved March third, 
 eighteen hundred and seventy-five, be, and the same is 
 hereby, amended so as to read as follows : 
 
 "That the circuit courts of the United States shall 
 have original cognizance, concurrent with the courts of 
 the several States, of all suits of a civil nature,' at common 
 law or in equity, where the matter in dispute exceeds, 
 exclusive of interest and costs, the sum or value of two 
 thousand dollars, and arising under the Constitution or 
 laws of the United States, or treaties made, or which shall 
 be made, under their authority, or in which controversary 
 the United States are plaintiffs or petitioners, or in which 
 there shall be a controversary between citizens of different 
 States, in which the matter in dispute exceeds, exclusive 
 of interest and costs, the sum or value aforesaid, or a con- 
 
2 SECTION 1 OF ACTS OF 1875 AND 1887. 
 
 troversary between citizens of the same State, claiming 
 lands nnder grants of different States, or a con troversary 
 between citizens of a State and foreign States, citizens or 
 subjects, in which the matter in dispute exceeds, exclu- 
 sive of interest and costs, the sum or value aforesaid, and 
 shall have exclusive cognizance of all crimes and offences 
 cognizable under the authority of the United States, ex- 
 cept as otherwise provided by law, and concurrent juris- 
 diction with the district courts of the crimes and offences 
 cognizable by them. But no person shall be arrested in 
 one district for trial in another in any civil action before 
 a circuit or district court ; and no civil suit shall be 
 brought before either of said courts against any person 
 by any original process of proceeding in any other dis- 
 trict than that whereof he is an inhabitant ; but where 
 the jurisdiction is founded only on the fact that the 
 action is between citizens of different States, suit shall be 
 brought only in the district of the residence of either the 
 plaintiff or the defendant ; nor shall any circuit or dis- 
 trict court have cognizance of any suit, except upon for- 
 eign bills of exchange, to recover the contents of any 
 promissory note , or other chose in action in favor of any 
 assignee, or of any subsequent holder of such instrument 
 be payable to bearer and be not made by any corporation, 
 unless such suit might have been prosecuted in such court 
 to recover the said contents if no assignment or transfer 
 had been made ; and the circuit courts shall also have 
 appellate jurisdiction from the district courts, under the 
 regulations and restrictions prescribed by law. " 
 
 SUITS OF A CIVIL NATURE. 
 
 " The terms used in the Act of 1875 — ' suits of a civil nature ' — 
 are less comprehensive than the term ' cases ' in the Constitution. 
 The latter may embrace proceedings not usually or strictly termed 
 snits and prosecutions of a criminal nature." (Field, J., in County 
 of San Mateo v. Southern Pacific R. R. Co. 13 Fed. R. 145.) 
 
 MANDAMUS. 
 
 An application for a mandamus is not such a suit (Mclntire 
 V. Wood, 7 Cranch, 504 ; McClung v. Silliman, 6 Wheaton, 598 ; 
 
SUITS OP A CIVIL NATURE. 3 
 
 County of Greene v. Daniel, 102 U. S. 187, 195 ; Davenport 
 V. County of Dodge, 105 U. S. 237, 242, 243 ; Louisiana v. Jumel, 
 107 IT. S. 711, 727 ; Bath County v. Amy, 13 Wallace, 244 ; 
 Graham v. Norton, 15 Wallace, 427 ; Rosenbaum v. Bauer, 120 
 XJ. S. 450) unless it is ancillary to some other proceeding cognizable 
 by the Federal courts. (U. S. R. S. § 716 ; Riggs v. Johnson County, 
 6 Wallace, 166 ; Davies v. Corbin, 112 U. S. 36 ; Commissioners 
 V. Aspinwall, 24 Howard, 376 ; Supervisors v. United States, 4 Wal- 
 lace, 435 ; Weber v. Lee County, 6 Wallace, 210 ; United States 
 V. New Orleans, 98 U. S. 381.) Special statutory provisions em- 
 power the circuit courts of the United States to issue a mandamus to 
 compel compliance with its charter by the Union Pacific Railroad, 
 " to operate its road as required by law" (Act of March 3d, 1873 ; 
 17 St. at Large, 509 ; United States v. U. P. R. R. Co. 2 Dillon, 
 627 ; U. P. R. R. Co. v. Hall, 91 U. S. 143), and to compel an 
 officer of the United States to perform any of the duties prescribed 
 by the act regulating the taxation of costs due clerks, marshals, 
 and district attorneys, etc. (Act of February 22d, 1875 ; 18 St. at 
 Large, 333; Supplement to U. S. R. S., ch. 90, pp. 143-145.) 
 The Inter-State Commerce Act may also be enforced by mandamus. 
 
 HABEAS CORPUS. 
 
 Writs of habeas corpus are regulated by U. S. R. S. §§ 751, 752, 
 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 
 766. 
 
 QUO WARRANTO. 
 
 Under the Judiciary Act of 1875, it was held that an action in the 
 nature of a quo warranto brought by a State in one of her own 
 courts against a corporation chartered by her could be removed into 
 a Federal Court when it was a case arising under the constitution or 
 laws of the United States. (Ames v. Kansas, 111 U. S. 449. See, 
 however. State ex rel. Barker v. Bowen, 8 S. C. 382.) 
 
 WRITS OF PROHIBITION. 
 
 It seems that writs of prohibition can only be issued by the Su- 
 preme Court. (U. S. R. S. § 688 ; Be Binninger, 7 Blatchford, 159.) 
 
 WRITS OF CBRTIORARI. 
 
 A Circuit Court of the United States has no power to issue a writ 
 of certiorari (ex parte John Van Orden, 3 Blatchford, 166, per Betts, 
 J.), except as process ancillary to a case of which the statutes give it 
 jurisdiction. (In re Robert M. Martin, 5 Blatchford, 308, per 
 W. D. Shipman, J,) 
 
4 SECTION 1 OF ACTS OP 1875 AND 1887. 
 
 PROBATE OF WILLS. 
 
 It has been said that "the courts of the United States have no 
 probate jurisdiction." (Fouvergne v. New Orleans, 18 Howard, 
 470 ; Southworth v. Adams, 11 Eeporter, 46.) When, however, 
 the statute or customary law of a State gives its courts jurisdiction of 
 a suit to establish a lost will (Southworth v. Howard, 11 Reporter, 
 46), or to set aside the probate of a will, it was held, under former 
 statutes, that the Federal court might take jurisdiction of such a suit 
 upon removal. (Gaines v. Fuentes, 92 U. S. 10.) 
 
 PROCEEDINGS TO ANNUL A WILL. 
 
 Under the Judiciary Act of 1875, it was held that a proceeding to 
 annul a will under the Louisiana statute was removable when citizens 
 of different States were on opposite sides of a controversy therein. 
 (Gaines v. Fuentes, 92 U. S. 10.) Judge Field then said (ibid. 
 p. 20) : "A controversy was involved in the sense of the statute when- 
 ever any property or claim of the parties, capable of pecuniary esti- 
 mation, was the subject of the litigation, and was presented by the 
 pleadings for judicial determination." Whether such a proceeding 
 could then be originally instituted in a circuit court of the United 
 States was not then decided. (See, however, Ellis v. Davis, 109 
 U. S. 485.) The language of the Act of 1875 concerning suits of 
 which that court had original cognizance was the same as that con- 
 strued in this case, and, so far as this point is concerned, is retained 
 in the Act of 1887. If such a proceeding cannot now be instituted 
 in a Federal court, it cannot be removed to one. (See Sub-Section 2 
 of Section 1 of Act of 1887, infra, p. 26.) 
 
 CLAIMS AGAINST DECEDENTS' ESTATES. 
 
 Under the Judiciary Act of 1875, it was held that a proceeding in 
 a court of probate under a Michigan statute providing for the trial 
 there of claims against a decedent's estate could be removed to the 
 Federal circuit court when citizens of different States were on opposite 
 sides of a controversy therein. (Hess v. Reynolds, 113 U. S. 73.) 
 See observations under Proceedings to Annul a Will for the applica- 
 tion of this case to the present statute. 
 
 CONDEMNATION PROCEEDINGS. 
 
 Under the Judiciary Act of 1875, it was held that proceedings in- 
 stituted by a corporation chartered by a State to condemn lands in 
 the exercise of the right of eminent domain, when they had come 
 before a State court, could be removed to the Circuit Court of the 
 
MATTER IN DISPUTE. 5 
 
 United States, if citizens of different States were on opposite sides of 
 a controversy therein. (Boom Company v. Patterson, 98 U. S. 
 403 ; S. C. 3 Dillon, 465 ; Warren v. W. V. R. R. Co. 6 Bissell, 
 425. But see Fuller v. County of Colfax, 14 Fed. R. 17V.) See 
 observations under Proceedings to Annul a Will for the application 
 of this ease to the present statute. 
 
 DIVORCE. 
 
 " We disclaim altogether any jurisdiction in the courts of the 
 United States upon the subject of divorce, or for the allowance of 
 alimony, either as an original proceeding in chancery or as an incident 
 to divorce a vinculo, ot to one from bed and board." (Barber 
 V. Barber, 21 Howard, 582, 584 ; Johnson v. Johnson, 13 Fed. R. 
 193.) It was held, however, by a divided court, that a Circuit Court 
 of the United States, sitting in equity, might sustain a bill filed on 
 behalf of a married woman by her next friend to enforce payment of 
 alimony awarded by a decree of a State court. (Barber v. Barber, 
 21 Howard, 582.) 
 
 MATTER IN DISPUTE. 
 
 " The rule, it is true, is an arbitrary one, as it is based upon a 
 fixed amount, representing pecuniary value, and for that reason ex- 
 cludes the jurisdiction of this court in cases which involve rights 
 that, because they are priceless, have no measure in money. (Lee 
 V. Lee, 8 Pet. 44 ; Barry v. Mercein, 5 How. 103 ; Pratt v. Fitzhugh, 
 1 Black, 271 ; Sparrow v. Strong, 3 Wall. 97.) But, as it draws the 
 boundary line of jurisdiction, it is to be construed with strictness and 
 rigor. As jurisdiction cannot be conferred by consent of parties, but 
 must be given by the law, so it ought not to be construed by doubt- 
 ful constructions." " It would be clearly a violation of the rule to 
 add to ttie value of the matter determined by any estimate in money, 
 by reason of the probative force of the judgment itself in some sub- 
 sequent proceeding that would often depend upon contingencies, and 
 might be mere conjecture and speculation, while the statute evidently 
 contemplated an actual and present value in money, determined by a 
 mere inspection of the record." (Waite, C. J., in Elgin v. Mar- 
 shall, 106 U. S. 579, 580. To the same eflEect is Bruce v. Man- 
 chester and Keene R. R. Co. 117 U. S. 514.) 
 
 " It was not intended to say that on every such question of juris- 
 diction the demand of the plaintiff is alone to be regarded ; but that 
 the value of the thing put in demand furnished the rule. The nature 
 
6 SECTION 1 OF ACTS OF 1875 AND 1887. 
 
 of the case must certainly guide the judgment of the court ; and 
 whenever the law makes a rule, that rule must be pursued. Thus in 
 an action of debt on a bond for £100, the principal and interest are 
 put in the demand, and the plaintifE can recover no more, though he 
 may lay his damages at £10,000. The fonii of the action, therefore, 
 gives in that case the legal rule. But in an action of trespass or 
 assault and battery, where the law prescribes no limitation as to the 
 amount to be recovered, and the plaintifE has a right to estimate 
 his damages at any sum, the damage stated in the declaration is the 
 thing put in demand, and presents the only criterion to which, 
 from the nature of the action, we can resort in settling the question 
 of jurisdiction." (Wilson v. Daniel, 3 Dallas, 401, 407, per Ells- 
 worth, C. J. ; approved in Barry v. Edmunds, 116 U. S. 650, 560.) 
 
 The matter in dispute upon a bill filed solely for an accounting is 
 the amount of the disputed items of the account. (McCormick 
 V. Gray, 13 Howard, 26.) 
 
 In a suit in equity to enjoin the use of a trade-mark and to compel 
 an account of profits, the amount of the matter in dispute is not 
 lihiited to the amount of profits of which an account is sought. The 
 trade-mark which it is sought to enforce may be much more valuable. 
 (Symonds v. Greene, 28 Fed. E. 834.) • 
 
 In a suit for an injunction the value of the object to be gained by 
 the bill, not the amount of the plaintiff's damages, is the test of juris- 
 diction. (M. & W. R. R. Co. V. Ward, 2 Black, 485 ; Market 
 Company v. HofEman, 101 U. S. 112 ; Whitman v. Hubbell, 30 
 Fed. R. 1,) " The jurisdiction does not depend upon the amount of 
 any contingent loss or damage which one of the parties may sustain 
 by a decision against him, but upon the amount in dispute between 
 them." (Taney, C. J., in Ross v. Prentiss, 3 Howard, 771, 772.) 
 
 When a number of plaintiffs, claiming under the same title and hav- 
 ing a common interest in the relief sought, unite in a suit, action, or 
 proceeding, their united interests constitute " the matter in dispute." 
 (Shields V. Thomas, 17 Howard, 3 ; Market Company v. Hoffman, 
 101 U. S. 112 ; Davies v. Corbin, 112 TJ. S. 36 ; Estes v. Gunter, 
 121 U. S. 183. But see King v. Wilson, 1 Dillon, 555, 568 ; 
 Woodman v. Latimer, 2 Fed. R. 842.) When, however, a suit is 
 brought by one for himself and all others of a class similarly situated, 
 the aggregate interest of those who join with him, not that of the 
 whole class, constitutes " the matter in dispute." (Bruce v. M. & 
 K. R. R. Co. 117 U. S. 514, 516 ; Adams v. Board of Commis- 
 sioners, McCahon (U. S. C. C. D. Kansas), 235.) 
 
 The pleadings should show that the value of the matter in dispute 
 
ARISING UNDER THE CONSTITUTION OR LAWS. 7 
 
 exceeds the jurisdictional amount. (United States v. Pratt Coal and 
 Oil Co. 18 Fed. R. 708.) 
 
 See the collection of authorities in the opinion of Gray, J., in Gib- 
 son V. Shufeldt, 122 U. S. 27. 
 
 ARISING UNDER THE CONSTITUTION OR LAWS OF THE 
 UNITED STATES. 
 
 This is substantially the language of the Constitution (Article III. 
 § 2) : "A case in law or equity consists of the right of the one 
 party, as well as of the other, and may truly be said to arise under 
 the constitution of a law of the United States, whenever its correct 
 decision depends on the construction of either." (Marshall, C. J., 
 in Cohens V. Virginia, 6 Wheaton, 264, 379.) " Cases arising under 
 the laws of the United States are such as grow out of the legislation 
 of Congress, whether they constitute the right or privilege, or claim 
 or protection, or defence of the party in whole or in part, by whom 
 they are asserted." (Strong, J., in Tennessee v. Davis, 100 U. S. 
 257, 264.) " If from the questions it appears that some title, right, 
 privilege, or immunity, on which the recovery depends, will be de- 
 feated by one construction of the Constitution or a law of the United 
 States, or sustained by the opposite construction, the case will be one 
 arising under the Constitution or laws of the United States, within 
 the meaning of that term as used in the Act of 1875 ; otherwise not." 
 (Waite, C. J., in Stariu v. New York, 115 U. S. 248, 257 ; Southern 
 Pacific R. R. V. California, 118 U. S. 109, 112.) 
 
 "When the plaintiff or defendant is a corporation chartered by Con- 
 gress, the case is one arising out of a law of the United States. 
 (Osborn v. U. S. Bank, 9 Wheaton, 738 ; Pacific Railroad Removal 
 Cases, 115 U. S. 1 ; F. L. & Tr. Co. v. D. S. P. & P. R. R. Co. 
 1 Ry. & Corp. L. J. 684.) 
 
 " We think, then, that when a question to which the judicial power 
 of the Union is extended by the Constitution forms an ingredient of 
 the original cause, it is in the power of Congress to give the circuit 
 courts jurisdiction of that cause, although other questions of fact or 
 law may be involved in it. The case of the bank is, we think, a very 
 strong case of this description. The charter of incorporation not 
 only creates, but gives it every faculty which it possesses. The 
 power to acquire rights of any description, to transact business of 
 any description, to make contracts of any description, to sue on those 
 contracts, is given and measured by its charter, and that charter is a 
 law of the United States ; it is not only itself the mere creature of a 
 law, but all its actions and all its rights are dependent on the same 
 
8 SECTION 1 OF ACTS OF 1875 AND 1887. 
 
 law. Can a being thus constituted have a case which does not arise 
 literally, as well as substantially, under the law ? Take the case of a 
 contract, which is put as the strongest against the bank. When a 
 bank sues, the first question which presents itself, and which lies at 
 the foundation of the cause, is. Has this legal entity a right to sue ? 
 Has it a right to come, not into this court particularly, but into any 
 court ? This depends on a law of the United States. The next ques- 
 tion is. Has this being a right to make this particular contract ? If 
 this question be decided in the negative, the cause is determined 
 against the plaintifE ; and this question, too, depends entirely upon 
 a law of the United States. The question forms an original in- 
 gredient in every cause. Whether it be in fact relied on or not in 
 the defence, it is still a part of the cause, and may be relied on. 
 The right of the plaintiS to sue cannot depend on the defence which 
 the defendant may choose to set up. His right to sue is anterior to 
 that defence, and must depend on the state of things when the action 
 is brought. The questions which the case involves, then, must de- 
 termine its character, whether those questions be made in the cause 
 or not. The appellants say that the case arises on the contract ; but 
 the validity of the contract depends on a law of the United States, 
 and the plaintifE is compelled in every case to show its validity. The 
 case arises emphatically under the law. The act of Congress is its 
 foundation. The contract could never have been made but under 
 the authority of that act. The act itself is the first ingredient in the 
 case, is its origin, is that from which every other part arises. That 
 other questions may also arise, as the execution of the contract or its 
 performance cannot change the case or give it any other origin than 
 the charter of incorporation. The action still originates in and is 
 sustained by that charter." (Osborn v. U. S. Bank, 9 Wheaton, 
 738, 823, per Marshall, C. J.) 
 
 When the corporation has been created by a territorial law, it 
 seems that the rule is different. (Adams Express Co. v. Denver & 
 E. E. E. R. Co. 16 Fed. E. 712.) National banks are' now excepted 
 by Section 4 of the Judiciary Act of 1887. (Infra, p. 55.) 
 
 It has been held by a divided court, that a case does not arise under 
 the laws of the United States, though brought to enjoin the infringe- 
 ment of a patent, when the defendant admits the validity of the 
 patent, and rests his defence upon an alleged license from the plaintiff. 
 (Kartell v. Tilghman, 99 U. S. 547. Approved in Albright v. Teas, 106 
 U. S. 613. But see Smith v. Standard Laundry Machinery Co. 19 
 Fed. E. 825 ; Continental Store Service Co. v. Clark, 100 N. Y. 
 365 ; Hat Sweat Manufacturing Co. v. Eeinoehl, 102 N. Y. 167.) 
 
ARISING UNDER THE CONSTITUTION OR LAWS. 9 
 
 A suit on a judgment recovered in a court of the United States is 
 not necessarily a suit arising under the laws of the "United States. 
 (ProviJent Savings Society v. Ford, 114 U. S. 635.) " What is a 
 judgment but a security of record showing a debt due from one 
 person to another ? It is as much a mere security as a treasury note 
 or a bond of the United States. If A brings an action against B, 
 trover or otherwise, for the withholding of such securities, it is not 
 therefore a case arising under the laws of the United States, although 
 the whole value of the securities depends upon the fact of their being 
 the obligations of the United States. So if A have title to land by 
 patent of the United States, and brings an action against B for tres- 
 pass or waste, committed by cutting timber, or by mining and carrying 
 away precious ores, or the like, it is not therefore a case arising under 
 the laws of the United States. It is simply the case of an ordinary 
 right of property sought to be enforced. A suit or a judgment is 
 nothing more, unless some question is raised in the case (as might be 
 raised in any of the cases specified) distinctly involving the laws of 
 the United States." (Bradley, J., in Provident Savings Society 
 v. Ford, 114 U. S. 635, 642, 643. See also Gold Washing and 
 Water Co. v. Keyes, 96 U. S. 199 ; Smith v. Greenhow, 109 
 U. S. 669 ; Gibbs v. Crandall, 125 U. S. 105 ; Martin v. Thompson, 
 120 U. S. 376 ; Crescent City Co. v. Butchers' Union, 120 U. S. 
 141.) " A case does not arise under the laws of the United States 
 simply because this court, or any other Federal court, has decided in 
 another suit the questions of law which are involved." (Waite, 
 C. J., in Leather Manufacturers' Bank v. Cooper, 120 U. S. 778, 
 781.) 
 
 " When a proposition has once been decided by the Supreme 
 Court, it can no longer be said that in it there still remains a Federal 
 question. More correctly it is said that there is no question. State or 
 Federal." (Brewer, J., in Kansas v. Bradley, 26 Fed. R. 289, 290.) 
 
 It has been held that an action in the nature of a quo warranto, 
 to determine the title to the office of electors of President and "Vice- 
 President, cannot on this ground be considered a suit arising under 
 the Constitution and laws of the United States. (State ex rel Barker 
 V. Bowen, 8 S. C. 382.) It has been held in one circuit, that a State 
 cannot be sued by one of its own citizens in a Federal court, although 
 the plaintifi: seeks to enforce a right dependent upon the construction 
 of the Constitution of the United States (Hans v. Louisiana, 24 Fed. 
 R. 55, per Billings, J.), but it has been intimated in another circuit 
 that this may be done. (Harvey v, Virginia, 20 Fed. R. 411, 415, 
 per Hughes, J.) Before the Act of 1887 it was held that a suit in- 
 2 
 
10 SECTION 1 OF ACTS OF 1875 AND 1887. 
 
 stituted by a State against one of her own citizens might in a proper 
 case be removed into a Federal court. (A.mes v. Kansas, 111 U. S. 
 470.) 
 
 The pleadings must state the facts which show that the case is 
 one arising under the Constitution and laws of the United States. 
 An allegation in the language of the statute is insufficient. (Man- 
 hattan Railway Co. v. New York, 18 Fed. R. 195 ; Provident Sav- 
 ings Society v. Ford, 114 U. S. 635.) 
 
 CONTROVERSARY. 
 
 This word takes the place of " controversy," which is used both in 
 the Constitution and in the Act of 1875. The word " controversy ' ' has 
 been thus defined by Chief Justice Waite (Removal Cases, 100 U. S. 
 457, 468) : " This we understand to mean that when the controversy 
 about which a suit in a State court is brought is between citizens of 
 one or more States on one side, and citizens of other States on the 
 other side, either party to the controversy may remove the suit to the 
 circuit court, without regard to the position they occupy in the plead- 
 ings as plaintifis or defendants. For the purposes of a removal, the 
 matter in dispute may be ascertained, and the parties to the suit 
 arranged on opposite sides of that dispute. If in such arrangement 
 it appears that those on one side are all citizens of different States 
 from those on the other, the suit may be removed. Under the old 
 law the pleadings only were looked at, and the rights of the parties in 
 respect to a removal were determined solely according to the position 
 they occupied as plaintiffs or defendants in the suit. (Coal Com- 
 pany V. Blatchford, 11 Wall. 174.) Under the new law the mere 
 form of the pleadings may be put aside and the parties placed on 
 different sides of the matter in dispute, according to the facts. This 
 being done, when all those on one side desire a removal, it may be 
 had if the necessary citizenship exists." (See also Pacific Railroad 
 v. Ketchum, 101 U. S. 289 ; Barney v. Latham, 103 U. S. 205 ; 
 Carson v. 'Hyatt, 118 U. S. 279, 286.) A controversy between 
 citizens of different States is one in which every party upon one side 
 is a citizen of a different State from every party upon the other. 
 (Blake v. McKim, 103 U. S. 336.) The citizenship of formal 
 parties with no real interest in the controversy does not affect the 
 jurisdiction. (Removal Cases, 100 U. S. 457 ; Barney v. Latham, 
 103 U. S. 205 ; Harter v. Kernochan, 103 U. S. 562 ; Wormley 
 V. Wormley, 8 Wheaton, 421 ; Taylor v. Holmes, 14 Fed. R. 499.) 
 
CITIZENSHIP. 11 
 
 An action upon a bond brought in the name of a State for the use of 
 a private individual is, for the purposes of jurisdiction, regarded as 
 if brought in the name of the latter. (Maryland v. Baldwin, 112 
 U. S. 490. ) 
 
 CITIZENSHIP. 
 
 Upon this ground, the statute gives no jurisdiction of a controversy 
 between two aliens (Mossman v. Higginson, 4 Dallas, 12 ; Rateau 
 V. Bernard, 3 Blatchford, 244) ; or between a citizen of the District 
 of Columbia (Hepburn v. Ellzey, 2 Cranch, 445 ; Westcott v. Fair- 
 field, Peters C. C. 4.5 ; Barney v. Baltimore, 1 Hughes, 118), or a 
 citizen of a Territory (New Orleans v. Winter, 1 Wheaton, 91) and a 
 citizen of a State, unless there is some other ground of jurisdiction. 
 A suit brought by a State against a citizen of another State cannot 
 on that ground alone be cognizable in a court of the United States. 
 (Alabama v. "VVolffie, 18 Fed. R. 836.) 
 
 A corporation (L. C. & C. R. R. Co. v. Letson, 2 Howard, 497 ; 
 Marshall v. B. & O. R. R. Co. 16 Howard, 314 ; MulJer v. Dows, 
 94 U. S. 444 ; Steamship Co. v. Tugman, 106 U. S. 118) and, it 
 has been held, an unincorporated association authorized by statute to 
 give in the name of one of its officers (Fargo v. L. N. A. & C. R. R. 
 Co. 6 Fed. R. 787 ; Maltz v. American Express Co. 3 Central L. J. 
 784 ; Liverpool Insurance Co. v. Ma.ssachusetts, 10 Wallace, 566 ; 
 contra Dinsmore v. P. & R. Co. 3 Central L. J. 157) is conclusively 
 presumed to be composed of citizens of the State or nation which 
 chartered it, or from whose laws it derives its powers. A corpora- 
 tion chartered by two or more States is presumed to be a citizen of that 
 one of them within whose limits the suit is brought. (0. & M. R. R. 
 Co. v. Wheeler, 1 Black, 286 ; Railway Co. v. Whitton, 13 Wallace, 
 270 ; Muller v. Dows, 94 U. S. 444. See Railroad Co. v. Harris, 
 12 Wallace, 65 ; Graham v. B. H. & E. R. R. Co. 118 U. S. 161 ; 
 Pa. R. R. Co. V. St. L. A. & T. H. R. R. Co. 118 U. S. 290 ; 
 Moore v. C. St. L. P. M. & D. R. R. Co. 21 Fed. R. 817 ; C. St. 
 P. M. & 0. R. R. Co. V. Dakota Co. 28 Fed. R. 219.) A munic- 
 ipal corporation is considered to be a citizen of the State within 
 which it is situated. (Cowles v. Mercer County, 7 Wallace, 118.) 
 
 If one of the parties sues or is sued as receiver (Davies v. Lathrop, 
 12 Fed. R. 353 ; Fariow v. Lea, 2 C. L. R. 329) or as an executor or 
 administrator, his own citizenship, not that of those whom he repre- 
 sents, is the test in determining the jurisdiction. (Bonnapee v. Will- 
 iams, 3 Howard, 574 ; Coal Company v. Blatchford, 11 Wallace, 
 
12 SECTION 1 OF ACTS OF 1875 AND 1887. 
 
 172 ; Browne v. Browne, 1 "Washington, 429.) When an infant 
 sues by his next friend, or special guardian, the citizenship of the 
 infant alone is the test. (Woolridge v. McKenna, 8 Fed. E. 650.) 
 The pleadings must show the jurisdiction or the suit will be dismissed 
 at the court's own motion. (Bors v. Preston, 111 U. S. 252.) The 
 pleading should state affirmatively of -what State the parties are citi- 
 zens, whenever the jurisdiction of an action at common law rests upon 
 that ground ; and in all cases in equity. (Equity Rule 20.) The 
 allegation that a party resides or is domiciled in a designated State is 
 insufficient. (Turner v. Bank of North Ameiica, 4 Dallas, 8 ; Evans 
 V. Davenport, 4 McLean, 574 ; Everhart v. Huntsville College, 120 
 U. S. 223.) In a suit in the Circuit Court for the District of Louisi- 
 ana, the averment that a party "is now residing in the parish of 
 West Baton Rouge, where the said Pierre Gassies caused himself to 
 be naturalized an American citizen," was held to be a sufficient aver- 
 ment that he was a citizen of Louisiana. (Gassies v. Ballon, 
 6 Peters, 761.) AVhen alienage is to be averred, the allegation 
 should be that the party is " a citizen and subject" of the foreign 
 State, which should be designated. (Wilson v. City Bank, 13 Sum- 
 ner, 422.)' A consul is not presumed to be a citizen of the State 
 ■which he represents. (Bors v. Preston, 111 U. S. 252.) 
 
 The filing' of a declaration of his intention to become a citizen of 
 the United States does not terminate a party's alienage, although he 
 is permitted by the laws of the State of his residence to vote and 
 hold office. (Lanz v. Randall, 4 Dillon, 425 ; Maloy v. Duden, 
 25 Fed. R. 673.) 
 
 ' ' On a change of domicile from one State to another, citizenship may 
 depend upon the intention of the individual. But this intention may 
 be shown more satisfactorily by acts than declarations. An exercise 
 of the right of suffrage is conclusive on the subject ; but acquiring a 
 right of suffrage, accompanied by acts which show a permanent loca- 
 tion, unexplained, may be sufiiicient." (Shelton v. Tiffin, 6 How- 
 ard, 163, 185 ; per McLean, J.) 
 
 "To deprive an American citizen of the right of suing in this 
 court, on the ground of his not being a citizen of any particular State, 
 there ought to be very strong evidence of his being a wanderer with- 
 out a home." (Thompson, J., in Rabaud v. D' Wolf, 1 Paine, 580, 
 588.) The fact that the plaintiff has changed his citizenship for the 
 purpose of bringing the suit in a Federal court does not divert the 
 jurisdiction, if the change has been actually made. (Briggs v. French, 
 2 Sumner C. C. 251, 255, 256 ; Catlett v. Pacific Insurance Co. 
 1 Paine, 594. See also Cooper v. Galbraith, 3 Washington C. C. 646, 
 
UNDER GRANTS OF DIFFERENT STATES. 13 
 
 553-555 ; Case v. Clarke, 5 Mason, 10 ; Robertson v. Carson, 19 
 Wallace, 94, 106.) 
 
 The allegation that a corporation is formed under and created by 
 the laws of a State is' sufficient. (Express Co. v. Kountze Brothers, 
 8 Wallace, 342, 351 ; Steamship Co. v. Tugman, 106 U. S. 118.) 
 An allegation that a party is " a body politic in the law of and doing 
 business in" a certain State is insufficient. (Pennsylvania v. Qaick- 
 silver Co. 10 Wallace, 554.) 
 
 UNDER GRANTS OF DIFFERENT STATES. 
 
 This includes a case where one party claims land under a grant 
 from New Hampshire, and the other under a grant from Vermont, 
 although at the time of the first grant the former was a part of the 
 latter State. (Fawlet v. Clark, 9 Cranch, 292 ; Cobson v. Lewis, 
 2 Wheaton, 377.) 
 
 " It is the grant which passes the legal title to the land, and if the 
 controversy is founded upon the conflicting grants of different States, 
 the judicial power of the courts of the United States extends to the 
 case, whatever may have been the equitable title of the parties prior 
 to the grant." (Cobson v. Lewis, 2 Wheaton, 377, 379, per Wash- 
 ington, J.) 
 
 ORIGINAL PROCESS OR PROCEEDING. 
 
 The words " except as hereinafter provided," which originally 
 concluded this clause, have been repealed. See Section 8 of the Act 
 of 1875 and the notes on the same {infra, pp. 49-53). 
 
 BUT WHERE THE JURISDICTION IS FOUNDED ONLY ON 
 THE FACT, &c. 
 
 The language of this clause is obscure, and leaves it doubtful 
 whether or not it is intended to confer jurisdiction over a suit of the 
 character therein described upon the circuit court held in both dis- 
 tricts. This is substituted for the following clause : " Or in which 
 he shall be found at the time of serving such proceeding, except as 
 hereinafter provided." (See Section 8 of Act of 1875, infra, p. 49.) 
 
 More difficult questions arise as to the jurisdiction over corporations 
 left by the present statute. Can a corporation be sued in another 
 district than that whereof it is an inhabitant ? If so, in what cases ? 
 (See as to this Mv parte Schollenberger, 96 U. S. 369 ; St. Clair 
 
14: SECTION 1 OF ACTS OF 1875 AND 1887. 
 
 V. Cox. 106 U. S. 350, 355-358 ; Boston Electric Co. v. Electric 
 Gas-Light Co. 23 Fed. E. 838 ; United States v. American Bell Tele- 
 phone Co. 29 Fed. R. IV.) Can a corporation have a residence apart 
 from the State in which it was incorporated ? (That it cannot would 
 seem to be the result of the reasoning in Bank of Augusta v. Earle, 
 13 Peters, 519 ; Stafford v. American Mills Co. 131 L. J. 310, 314 ; 
 Calcutta Jute Mills Co. v. Nicholson, 1 Ex. D. 428, 445 ; Cook 
 V. Hager, 3 Colorado, 386 ; Cowardin v. Universal Life Ins. Co. 32 
 Grattan (Va.), 445.) 
 
 " All that there is in the legal residence of a corporation in the 
 State of its creation consists in the fact that by its laws the corpo- 
 rators are associated together and allowed to exercise as a body certain 
 functions, with a right of succession in its members. Its officers and 
 agents constitute all that is visible of its existence ; and they may be 
 authorized to act for it without as well as within the State. There 
 would seem, therefore, to be no sound reasou why, to the extent of 
 their agency, they should not be equally deemed to represent it in 
 the States for which they are respectively appointed when it is called 
 to legal responsibility for their transactions." (Field, J., in St. 
 Clair V. Cox, 106 U. S. 350, 355.) 
 
 The inhabitancy of the defendant need not be alleged in the plain- 
 tifE's pleading. This point is a matter of defence, and may, it seems, 
 be waived by the defendant. (Gracie v. Palmer, 8 Wheaton, 699.) 
 
 Proceedings under the Inter-State Commerce Act, which was pre- 
 viously passed, were authorized against foreign corporations in cir- 
 cuits where they had agents to accept traffic. 
 
 SPECIAL LIMITATION UPON CIRCUIT COURT FOR SOUTH- 
 ERN DISTRICT OF NEW YORK. 
 
 U. S. R. S., § 657, provides that : " The original jurisdiction of 
 the Circuit Court for the Southern District of New York shall not be 
 construed to extend to causes of action arising within the Northern 
 District of said State. ' ' 
 
 It has been held that this forbids the issue by that court of an in- 
 junction to prevent the infringement of a patent when the sole pre- 
 vious cases of infringement occurred in the Northern District of New 
 York. (Hodge V. Hudson River R. R. Co. 6 Blatchford, 85, 87.) 
 This section does not exclude from the jurisdiction of the court causes 
 of action that arise without the State. (Wheeler v. McCormick, 8 
 Blatchford, 268.) An objection based upon this section is, it has 
 been held, waived unless set up by plea or answer. (Black v. Thome, 
 10 Blatchford, 66.) 
 
ANCILLARY LITIGATION. 15 
 
 ANCILLARY LITIGATION. 
 
 After a Federal court has acquired jurisdiction through the exist- 
 ence of the necessary difierence of citizenship between the original 
 parties, ancillary proceedings may be therein instituted, although 
 parties upon the different sides of the controversy are citizens of the 
 same State and there is no other ground of Federal jurisdiction. 
 (Dunn V. Clarke, 8 Peters, 1 ; Clarke v. Matthewson, 12 Peters, 
 164 ; Freeman v. Howe, 24 Howard, 460, 460 ; Minnesota Com- 
 pany V. St. Paul Company, 2 Wallace, 609 ; Jones v. Andrews, 10 
 Wallace, 327 ; Krippendorf v. Hyde, 110 U. S. 276 ; P. R. R. of 
 Mo. V. Mo. P. R. R. Ill U. S. 505, 522 ; Seymour v. Phillips Con- 
 struction Co. 7 Bissell, 460. But see Christmas v. Russell, 14 Wal- 
 lace, 69.) 
 
 " The question is not whether the proceeding is supplemental and 
 ancillary, or is independent and original in the sense of the rules of 
 equity pleading, but whether it is supplemental and ancillary, or is to 
 be considered entirely new and original, in the sense which this court 
 has sanctioned with "reference to the line which divides the jurisdic- 
 tion of the Federal courts from that of the State courts. ' ' (Miller, 
 J., in Minnesota Company v. St. Paul Company, 2 Wallace, 609.) 
 Thus, not only can a bill of revivor or a supplemental bill be main- 
 tained in a Federal court which had jurisdiction of the original litiga- 
 tion (Clarke v. Matthewson, 12 Peters, 164), but so can a bill to 
 restrain, or to regulate (Dunn v. Clarke, 8 Peters, 1 ; Freeman 
 V. Howe, 24 Howard, 450, 460 ; Jones v. Andrews, 10 Wallace, 
 327 ; Krippendorf V. Hyde, 110 U. S, 276), or to set aside (P. R. R. 
 of Mo. V. Mo. P. R. R. Ill U. S. 505, 522), or to obtain a judicial 
 construction (Minnesota Company v. St. Paul Company, 2 Wallace, 
 609), or to enforce a judgment or decree of a Federal court. (Rail- 
 road Companies v. Chamberlain, 6 Wallace, 748.) 
 
 Conversely, there is a similar limitation upon the jurisdiction of 
 the Federal courts. This is well explained in the following extract 
 from an opinion by Bradley, J. (Barrow v. Hunton, 99 U. S. 80, 
 81, 82) : " The question presented with regard to the jurisdiction of 
 the circuit court is, whether the proceeding to procure nullity of the 
 former judgment in such a case as the present is or is not in its 
 nature a separate suit, or whether it is a supplementary proceeding, 
 so connected with the original suit as to form an incident to it, and 
 substantially a continuation of it. If the proceeding is merely tanta- 
 mount to the common law practice of moving to set aside a judg- 
 ment for irregularity, or to a writ of error, or to a bill of review or 
 
16 SECTION 1 OP ACTS OF 1875 AND 1887. 
 
 au appeal, it would belong to the latter category, and the United 
 States court could not properly entertain jurisdiction of the case. 
 Otherwise the circuit courts of the United States would become in- 
 vested with power to control the proceedings in the State courts, or 
 would have appellate jurisdiction over them in all cases where the 
 parties are citizens of different States. Such a result would be 
 totally inadmissible. On the other hand, if the proceedings are 
 tantamount to a bill in equity to set aside a decree for fraud in the 
 obtaining thereof, then they constitute an original and independent 
 proceeding, and, according to the doctrine laid down in Gaines v. 
 Fuentes (92 U. S. 10), the case might be within the cognizance of 
 the Federal courts. The distinction between the two classes of cases 
 may be somewhat nice, but it may be atlrmed to exist. In the one 
 class there would be a mere revision of errors and irregularities, or 
 of the legality and correctness of the judgments and decrees of the 
 State courts ; and in the other class, the investigation of a new case 
 arising upon new facts, although having relation to the validity of an 
 actual judgment or decree, or the party's right to claim any benefit 
 by reason thereof." Proceedings supplementary to execution au- 
 thorized by State statutes against a judgment debtor or third persons 
 cannot be instituted or removed to the Federal courts, although a^ 
 creditor's bill may be. (Webber v. Humphries, 6 Dillon, 223 ; Poole 
 V. Thatcherdeft, 19 Fed. R. 49 ; Buford v. Strother, 3 McCrary, 
 253 ; S. C, 10 Fed. R. 406 ; Flash v. Dillon, 22 Fed. R. 1.) A 
 petition after judgment in a State court for plaintiff in ejectment to 
 have the defendant's damages allowed to him is a mere incident to 
 the ejectment suit, and the Federal courts can take no jurisdiction 
 of it. (Chapman v. Barger, 4 Dillon, 557.) 
 
 EFFECT OF STATE STATUTES ON FEDERAL JURIS- 
 DICTION. 
 
 No State statute giving one of its courts — for example, a court of 
 probate— exclusive jurisdiction of a certain class of litigation can 
 impair the jurisdiction of the United States circuit courts. (Suydam 
 V. Broadnax, 14 Peters, 67 ; Union Bank v. Jolly Admir, 18 How- 
 ard, 503 ; Hyde v. Stone, 20 Howard, 170 ; Payne v. Hook, 
 7 Wallace, 425 ; S. C, as Hook v. Payne, 14 Wallace, 452 ; Ellis 
 v. Davis, 109 U. S. 485 ; Hess v. Reynolds, 113 U. S. 73, 77 ; 
 Borer v. Chapman, 119 U. S. 587.) No State statute diminishing 
 or destroying an equitable remedy, or in any way regulating the 
 
STATE STATUTES. 17 
 
 practice in courts of equity, has any effect upon the jurisdiction or 
 practice of the Federal, courts. (Boyle v. Zacharie, 6 Peters, 648 ; 
 Bein v. Heath, 12 Howard, 168, 179 ; Noonan v. Lee, 2 Black, 
 409, 509 ; Thompson v. Railroad Companies, 6 Wallace, 134 ; 
 Cowles V. Mercer County, 7 Wallace, 118 ; Payne v. Hook, 7 Wal- 
 lace, 425 ; Railway Company v. Whittier's Administrator, 13 Wal- 
 lace, 270, 285 ; Smith v. Railroad Company, 99 U. S. 398.) 
 
 Such are statutes requiring a mortgagor to tender the debt secured 
 by his mortgage before filing a bill to redeem the mortgaged premises 
 (Gordon v. Hobart, 2 Sumner, 401) ; requiring a bill to foreclose a 
 mortgage given to secure a judgment to show that execution has been 
 issued under the judgment and returned unsatisfied (Dow v. Cham- 
 berlin, 5 McLean, 281) ; requiring leave to be obtained from a State 
 court before a suit can be brought to enforce a judgment therein 
 entered (Phelps v. O'Brien County, 2 Dillon, 518) ; requiring a bond 
 to be given before an injunction can be granted (Bein v. Heath, 
 12 Howard (U. S.), 168, 178) ; or regulating the form of the 
 security then required or the proceedings to enforce the same (Bein 
 V. Heath, 12 Howard (U. S.), 168 ; Russell v. Farley, 105 U. S. 
 437 ; Meyers v. Block, 120 U. S. 206, 211) ; authorizing persons 
 to agree upon a statement of facts, and to stipulate that the court 
 take jurisdiction to try a cause and render a decree without pleadings 
 (Nickersonv. A. T. & Santa Fe R. R. Co. 1 McCrary, 383) ; before 
 Equity Rule 92 was promulgated, a State statute authorizing in a fore- 
 closure suit the entry of a decree against the defendant for the 
 amount of any deficiency after the sale (Noonan v. Lee, 2 Black, 
 499, 509) ; and, at least when the suit is brought in a district not 
 including the State that passed the statute, one that permits a debtor 
 to file a bill to compel the return or cancellation of securities for a 
 usurious debt, without payment or the offer of payment of the amount 
 borrowed with lawful interest. (Matthews v. Warner, 6 Fed. R, 
 461, 466 ; affirmed without passing on this point, 112 TJ. S. 
 600.) 
 
 If, however, the customary (Neves v. Scott, 13 Howard (TJ. S. ), 
 268, 271 ; Gaines v. Fuentes, 92 U. S. 10, 20 ; Ellis v. Davis, 109 
 IT. S. 485 ; Lorman v. Clarke, 2 McLean, 568, 57) or statute law 
 (Clark V. Smith, 13 Peters, 195 ; Fitch v. Creighton, 24 Howard 
 (TJ. S.), 159 ; Brine v. Insurance Company, 96 TJ. S. 627 ; Miles 
 V. Scott, 99 TJ. S. 25 ; Van Norden v. Morton, 99 TJ. S. 378 ; 
 Cummings v. National Bank, 101 TJ. S. 153, 157 ; Holland v. Chal- 
 lien, 110 IT. S. 115 ; Reynolds v. Crawfordsville National Bank, 112 
 TJ. S. 405) of a State has created a new right, the Federal court will 
 
18 HECTION 1 OF ACTS OF 1875 AND 1887. 
 
 enforce the same at law or equity, if it falls within the remedies 
 authorized by either branch of its jurisdiction. 
 
 Such are statutes giving a mortgagor or his judgment creditors a 
 certain time within which to redeem land after a foreclosure sale 
 (Brine v. Insurance Company, 96 U. S. 627 ; Orvis v. Powell, 
 98 U. S. 176, 178 ; Connecticut Mutual Life Insurance Company v, 
 Cushman, 108 U. S. 51) ; authorizing a suit to set aside the probate 
 of a will or a will itself for fraud (Broderick's Will, 21 Wallace, 
 503, 519, 520) ; authorizing a person in possession of land and 
 unmolested (Clark v. Smith, 13 Peters, 195), or even one out of 
 possession to sustain a bill to determine and quiet the title to the 
 same (Holland v. Challien, 110 U. S. 15 ; Reynolds v. Crawfords- 
 ville National Bank, 112 U. S. 405) ; making an assessment for 
 opening streets a lien upon abutting lands, which can be foreclosed 
 by the city or its assignee (Fitch v. Creighton, 24 Howard (U. S. ), 
 159) ; authorizing an injunction to be granted in a new class of 
 cases (Cummings v. National Bank, 101 U. S. 153, 167) ; empow- 
 ering a guardian, with the permission of a State court, to mortgage 
 his ward's estate, but not clauses providing that such a mortgage can 
 only be foreclosed in the court which authorized its execution. 
 (Davis v. James, 2 Fed. R. 18.) 
 
 STATE STATUTES OF LIMITATION. 
 
 At least in cases not founded upon a Federal statute, the courts of 
 the United States, in actions at common law, are bound by State 
 Statutes of Limitation. (U. S. R. S. § 721 ; McCIung v. Silliman, 
 3 Peters, 270 ; Army v. Dubuque, 98 TJ. S. 470.) A State Statute 
 of Limitation cannot, however, bar the United States. (United 
 States V. Thompson, 98 U. S. 486.) 
 
 Federal courts of equity usually follow by analogy State Statutes 
 of Limitation (Wagner v. Baird, 7 Howard, 234, 258 ; Broderick's 
 Will, 21 Wallace, 503 ; Godden v. Kimball, 99 U. S. 201 ; Meath 
 V. Phillips County, 108 U. S. 552 ; Kirby v. L. S. & M. S. R. R. 
 120 U. S. 130), especially in foreclosure suits (Cleveland Insurance 
 Company v. Reed, 1 Bissell, 180) and suits against executors and 
 administrators (Pulliam v. Pulliam, 10 Fed. R. 53 ; Broderick's 
 Will, 21 Wallace, 503) ; but, at least when their jurisdiction is not 
 concurrent with courts at law (Wagner v. Baird, V Howard, 234, 
 258 ; Godden v. Kimball, 99 U. S. 201), they do not consider them- 
 selves bound by them (Kirby v. L. S. & M. S. R. R. 120 U. S. 130, 
 137 ; Etting v. Marx's Executor, 4 Fed. R. 673) ; and it seems that 
 they never follow them when thereby " manifest wrong and injustice 
 
PROPERTY IN THE CUSTODY OF A STATE COURT. 19 
 
 would be wrought." (Fogg v. St. Louis H. & K. R. R. Co. 17 
 Fed. R. 871, 873.) 
 
 PKOPERTY IN THE CUSTODY OP A STATE COURT. 
 
 A court of the United States, through a spirit of judicial comity, 
 will usually not interfere with property in the custody of a State 
 court (Hagan v. Lucas, 10 Peters, 400 ; Taylor v. Carry], 20 How- 
 ard, 583 ; Peale v. Phipps, 14 Howard, 368 ; Levi v. Columbia In- 
 surance Company, 1 Fed. R. 206 ; Hubbard v. Bellew, 3 Fed. R. 
 447 ; Union Mutual Life Ins. Company v. University of Chicago, 
 6 Fed. R. 443 ; Hutchinson v. Green, 6 Fed. R. 833, 836-839 ; 
 Hamilton v. Chouteau, 6 Fed. R. 339 ; Heidritter v. Elizabeth Oil- 
 cloth Company, 112 U. S. 294. But seeDwight v. Central Vermont 
 R. R. Co. 9 Fed. R. 786), even though such custody was acquired 
 by fraud (Attleborough National Bank v. N. W. Manuf'g & Car Co. 
 28 Fed. R. 113), provided the fact of such custody be called to its 
 attention before final hearing. (Gilraan v. Perkins, 7 Fed. R. 887.) 
 This does not prevent the filing of a bill in equity against an admin- 
 istrator or an executor during the pendency of probate proceedings 
 in a State court (Payne v. Hook, 7 Wallace, 425 ; Yonley v. Lav- 
 ender, 21 Wallace, 276 ; Chapman v. Borer, 1 Fed. R. 274 ; Hull 
 V. Dills, 19 Fed. R. 657) ; nor the filing of a bill to set aside or stay 
 proceedings upon a judgment in a State court (Barrow v. Hunton, 
 99 U. S. 80 ; Sahlgard v. Kennedy, 2 Fed. R. 295) ; nor, under 
 the Judiciary Act of 1875, the removal to a Federal court of a suit 
 in equity in the course of which a State court had appointed a re- 
 ceiver (/re re Iowa and Minnesota Construction Company, 10 Fed. R. 
 401), or had taken property into its possession under a common law 
 writ. (Kern v. Huidekoper, 103 U. S. 485, 491, 492.) Property 
 is deemed to be in the custody of a court from the time when a suit 
 or action seeking to have it put there has been actually begun, either 
 by levy under a writ in a proceeding in rem, or by the filing of a bill 
 praying the appointment of a receiver and the service of process 
 (Taylor V. Carryl, 20 Howard (U. S.), 583 ; Heidritter v. Elizabeth 
 Oil-cloth Company, 112 U. S. 294 ; Levi v. Columbia Insurance 
 Company, 1 Fed. R. 206 ; Hubbard v. Bellew, 3»Fed. R. 447 ; 
 Union Mutual Life Ins. Company v. University of Chicago, 6 Fed R. 
 443 ; Hutchins v. Green, 6 Fed. R. 339. But see Dwight v. Central 
 Vermont R. R. Co. 9 Fed. R. 785 ; Webb v. Vermont Central 
 R. R. Co. 9 Fed. R. 793 ; Owens v. Ohio Central R. R. Co. 20 
 Fed. R. 10) ; and it so continues until the clause is practically termi- 
 nated, although no formal termination is absolutely essential. (Buck 
 
30 SECTIOX 1 OF ACTS OF 1875 AND 1887. 
 
 V. Piedmont and Arlington Insurance Company, 4 Fed R. 849 ; 
 Andrews v. Smith, 5 Fed. R. 833.) 
 
 If the suit be first begun in a Federal court, that court will main- 
 tain and enforce its right to the custody of the property. (Ileidritter 
 V. Elizabeth Oil-cloth Co. 112 TJ. S. 294.) In one case, where a 
 receiver had been appointed, in a suit begun in a State court, after a 
 bill filed in a Federal court praying relief concerning the same prop- 
 erty had been dismissed by a decree, the Federal court subsequently 
 opened the decree, and appointed a receiver of the property upon the 
 filing of a supplemental bill at the same term. (Union Trust Com- 
 pany V. R. R. I. & St. L. R. R. Co. 6 Bissell 197.) 
 
 The rules which apply between State and Federal courts also 
 regulate conflicts as to jurisdiction between different Federal courts. 
 (Hurd V. Moiles, 28 Fed. R. 897. But see Wabash Cases, especially 
 Atkins V. W. St. L. & P. R. R. Co. 29 Fed. R. 161 ; Central 
 Trust Co. V. W. St. L. & P. R. R. Co. 29 Fed. R. 618.) 
 
 FOREIGN BILLS OF EXCHANGE. 
 
 " The policy which probably dictated this provision in the above 
 section was to prevent frauds upon the jurisdiction of those courts, 
 by pretended assignments of bonds, notes, and bills of exchange 
 strictly inland ; and as these evidences of debt generally concern the 
 internal negotiations of the inhabitants of the same State, and would 
 seldom find their way fairly into the hands of persons residing in 
 another State, the prohibition as to them would impose a very trifling 
 restriction, if any, upon the commercial intercourse of the different 
 States with each other. It is quite otherwise as to bills drawn in one 
 State upon another. They answer all the purposes of remittances 
 and of commercial facilities equally with bills drawn upon other 
 countries, or vice versa ; and if a choice of jurisdictions be important 
 to the credit of bills of the latter class, which it undoubtedly is, it 
 must be equally so to that of the former. Nor does the reason for 
 restraining the transfer of other choses in action apply to bills of ex- 
 change of this description, which, from their commercial character, 
 might be expected to pass fairly into the hands of persons residing in 
 the different States of the Union. We conclude, upon the whole, 
 that in no point of view ought they to be considered otherwise than 
 as foreign bills." (Washington, J., in Buckner v. Finley, 2 Peters, 
 686, 593.) 
 
 It has been held, that a check upon a domestic bank is not an inland 
 bill of exchange. (Levy v. Laclede Bank, 18 Fed. R. 193.) 
 
CONTENTS OP A CHOSE IN ACTION. 21 
 
 CONTENTS OF ANY PROMISSOEY NOTE OR OTHER CHOSE 
 
 IN ACTION. 
 
 The phrase, " contents of a chose in action," is a re-enactraent of 
 the language of the Revised Statutes (§ 6ii9), for which the Judiciary 
 Act of 1875 had substituted the phrase, " founded on contract.' ' 
 
 " Without doubt, assignable paper, being the chose in action most 
 usually transferred, was in the mind of the Legislature when the law 
 was framed ; and the words of the provision are therefore best adapted 
 to that class of assignments. But there is no reason to believe that 
 the Legislature were not equally disposed to except from the jurisdic- 
 tioD of the Federal courts those who could sue ia virtue of equitable 
 assignments, and those who could sue in virtue of legal assignments." 
 
 " The term ' other chose in action ' is broad enough to compre- 
 hend either case ; and the word ' contents ' is too ambiguous in its 
 import to restrain that general term. The ' contents ' of a note are 
 the sum it shows to be due ; and the same may, without much violence 
 to language, be said of an account." (Marshall, C. J., in Sere v. 
 Pitot, 6 Crancti, 832, 335, 336.) 
 
 " The term ' chose in action ' is one of comprehensive import. It 
 includes the infinite variety of contracts, covenants, and promises 
 which confer on one party a right to recover a personal chattel or a 
 sum of money from another by action." " The complainant in this 
 case [a suit for the foreclosure of a mortgage] is the purchaser and 
 assignee of a sum of money, a debt, a chose in action, not of a tract 
 of land. He seeks to recover by this action a debt assigned to him. 
 He is therefore the ' assignee of a chose in action ' within the letter 
 and spirit of the act of Congress under consideration, and cannot 
 support this action in the Circuit Court of the United States where 
 his assignor could not." (Grier, J., in Sheldon v. Sill, 8 Howard, 
 441, 449, 450 ; approved, Tredway v. Sanger, 107 U. S. 323, 325 ; 
 Mersman v. Werges, 112 U. S. 139, 143.) " Under that comprehen- 
 sive description are included all debts and all claims for damages for 
 breach of contract or for torts connected with contract. ' ' (Chase, C. J. , 
 in Bushnell v. Kennedy, 9 Wallace, 387, 390.) " The suit is really 
 one for the specific performance of the contracts, to enforce them, to 
 realize the fruits of the rights secured by them to the purchasers, and 
 to reinstate the plainti^ in the position which he is entitled to occupy 
 under the contracts as assignee thereof, notwithstanding any acts 
 done by the county or its oflScers in impairment of the rights acquired 
 by the contracts. Such a suit must be regarded as one to recover the 
 contents of the contracts. The contents of a contract, as a ,chose in 
 
22 SECTION 1 OF ACTS OF 1875 AND 1887. 
 
 action, in the sense of section 629, are the rights created by it in favor of 
 a party in whose behalf stipulations are made in it which he has a right 
 to enforce in a suit founded on the contract ; and a suit to enforce 
 such stipulations is a suit to recover such contents." " The obliga- 
 tion or the promise contained in a contract is its contents, when a 
 suit is brought to enforce such olJligation ; and it does no violence 
 to language to say that the suit is one to recover such contents." 
 (Blatchford, J., in Corbin v. County of Black Hawk, 105 U. S. 659, 
 665, 666.) 
 
 In a case where the plaintiff sued in replevin to recover property 
 taken by the defendant before the assignment to him, it was said : 
 "It is admitted the assignors in this case could not have main- 
 tained the suit in the Federal courts. We are of opinion that this 
 clause of the statute has no application to the case of a suit by the 
 assignee of a chose in action to recover possession of the thing in 
 specie, or damages for its wrongful caption or detention ; and that it 
 applies only to cases in which the suit is brought to recover the con- 
 tents or to enforce the contract contained in the instrument assigned. 
 In the case of a tortious taking, or wrongful detention of a chose in 
 action against the right or title of the assignee, the injury is one to 
 the right of property in the thing, and it is therefore unimportant, 
 as it respects the derivation of the title ; it is sufficient if it belongs 
 to the party bringing the suit at the time of the injury. The distinc- 
 tion as it respects the application of the eleventh section of the 
 Judiciary Act to a suit concerning a chose in action is this : Where 
 the suit is brought to enforce the contract, the assignee is disabled 
 unless it might have been brought in the court, if no assignment had 
 been made ; but if brought for a tortious taking, or wrongful deten- 
 tion of the chattel, then the remedy accrues to the person who has 
 the right of property or of possession at the time, the same as in case 
 of a like wrong in respect to any other sort of personal chattel. The 
 principle governing the case will be found in cases that have fre- 
 quently been before us arising out of the assignment of mortgages, 
 where it has been held, if the suit is brought to recover the pos- 
 session of the mortgaged premises, the assignee may bring the suit 
 in the Federal courts, if a citizen of a State other than that of 
 the tenant in possession, whether the mortgagee could have main- 
 tained it or not, within this section ; but ir brought to enforce the 
 payment or collection of the debt by sale of the premises or by a 
 decree against the mortgagor, then the assignee is disabled, unless 
 the like suit could have been maintained by the mortgagee. (Smith 
 V. Kernochen, V Howard, 198.) This distinction is stated by 
 
CONTENTS OF A CHOSE IN ACTION. 33 
 
 Mr. Justice Grier in the case of Sheldon et al. v. Sill, 8 Howard, 
 441. The learned justice in delivering the opinion of the court in 
 that case observed ' that the term chose in action is one of compre- 
 hensive import. It includes the infinite variety of contracts, cove- 
 nants, and promises, which confers on one party a right to recover a 
 personal chattel, or sum of money from another by action.' This 
 paragraph has been relied on to sustain the plea in question ; but 
 other portions of this opinion will show, that by the phrase ' right to 
 recover a personal chattel ' was not meant a recovery in specie, or 
 damages for a tortious injury to the same, but a remedy on the con- 
 tract for the breach of it, whether the contract was for the payment 
 of money or the delivery of a personal chattel. Indeed, upon a close 
 examination, this is the fair import of the language used, as he was 
 speaking of the contract in the instrument assigned, not of the sale 
 or transfer of it." (Nelson, J., in Deshler v. Dodge, 16 Howard, 
 622, 631.) 
 
 " The case of Young v. Bryan (6 Wheat. Eep. 146) has decided 
 that an endorsee who resides in a different State may sue his imme- 
 diate endorser residing in the State in which the suit is brought, al- 
 though that endorser be a resident of the same State with the maker 
 of the note ; but in this case the suit is brought against a remote en- 
 dorser, and the plaintiffs, in their declaration, trace their title through 
 an intermediate endorser without showing that this intermediate en- 
 dorser could have sustained his action against the defendant in the 
 courts of the United States. The case of Turner v. The Bank of 
 North America (4 Dallas, 8) has decided that this count does not give 
 the court jurisdiction." (Marshall, C. J., in Mollan v. Torrance, 
 9 Wheaton, .537, 538, 639.) 
 
 " It has recently been very strongly argued that the restriction ap- 
 plies only to contracts ' which may be properly said to have contents ; ' 
 ' not mere naked rights of action founded on some wrongful act, 
 some neglect of duty to which the law attaches damages [as a failure 
 to protect a note, citing Barney v. Globe Bank, 5 Blatchford, 107], 
 but rights of action founded on contracts which contain within them- 
 selves some promise or duty to be performed.' " (Chase, C. J., in 
 Busbnell v. Kennedy, 9 Wallace, 387, 391, 392.) 
 
 "It is no objection to the jurisdiction, that at some anterior 
 period the transaction assumed a shape not within the reach of that 
 jurisdiction. It is sufficient if it has now become so modified by the 
 act of the parties, or by the principles of law, that jurisdiction now 
 rightfully attaches." (Story, J., in Bean v. Smith, 2 Mason, 252, 
 269 ; approved in Ober v. Gallagher, 93 TJ. S. 199, 206.) A cred- 
 
24 SECTION 3 OF ACT OF 1875 AS AMENDED IN 1887. 
 
 itor can therefore sue in a Federal court to enforce a judgment re- 
 covered by him, although he could not have brought there the suit in 
 which that judgment was recovered. (Bean v. Smith, 2 Mason, 
 252, 269 ; Ober v. Gallagher, 93 U. S. 199, 206.) A municipal 
 bond in the ordinary form is a " promissory note negotiable by the 
 law merchant." (Ackley School District v. Hall, 113 U. S. 135 ; 
 New Providence v. Halsey, 117 U. S. 336.) 
 
 ASSIGNEE. 
 
 " The circumstance that the assignment was made by operation of 
 law, and not by the act of the party, might probably take the case 
 out of the policy of the act, but not out of its letter and meaning. 
 The Legislature has made no exception in favor of assignments so 
 made. It is still a suit to recover a chose in action in favor of an 
 assignee, which suit could not have been prosecuted if no assignment 
 had been made ; and is therefore within the very terms of the law." 
 (Sere v. Pitot, 6 Cranch, 332, 336, per Marshall, C. J.) 
 
 " The representatives of a deceased person are not usually desig- 
 nated by the term ' assignees, ' and are, therefore, not within the 
 terms of the act." (Marshall, C. J., in Sere v. Pitot, 6 Cranch, 
 332, 336 ; Chappedelaine v. Dechenaux, 4 Cranch, 306 ; Childress 
 V. Emory, 8 Wheaton, 642.) 
 
 Receivers are also not within the terms of the act. (Davies 
 V. Lathrop, 12 Fed. R. 353.) 
 
 CORPORATION. 
 
 Whether this term applies to public corporations and quasi-corpo- 
 rations, such as cities, counties, villages, and towns, remains to be 
 decided. 
 
 APPELLATE JURISDICTION OF CIRCUIT COURTS. 
 
 See U. S. R. S., sections 631, 632, 633, 634, 635, and 636. 
 
 Sections 587, 601, and 637 provide for the removal of cases from 
 a United States district to a United States circuit court, on account 
 of the disability of a district judge. 
 
 SECTION 2 OF JUDICIARY ACT OF 1875 AS 
 AMENDED IN" 1887. 
 
 " Section 2. That any suit of a civil nature, at law or 
 in equity, arising under the Constitution or laws of the 
 United States, or treaties made, or which shall be made 
 
SECTION 3 OF ACT OF 1875 AS AMENDED IN 1887. 25 
 
 under their authority, of which the circuit courts of the 
 United States are given original jurisdiction by the pre- 
 ceding section, which may now be pending, or which may 
 hereafter be brought, in any State court, may be removed 
 by the defendant or defendants therein to the circuit 
 court of the United States for the proper district ; any 
 other suit of a civil nature, at law or in equity, of which 
 the circuit courts of the United States are given jurisdic- 
 tion by the preceding section, and which are now pend- 
 ing, or which may hereafter be brought, in any State 
 court, may be removed into the circuit court of the United 
 States for the proper district by the defendant or defend- 
 ants therein being non-residents of that State ; and when 
 in any suit mentioned in this section there shall be a con- 
 troversy which is wholly between citizens of different 
 States, and which can be fully determined as between 
 them, then either one or more of the defendants actually 
 interested in such controversy may remove said suit into 
 the circuit court of the United States for the proper dis- 
 trict. 
 
 " And where a suit is now pending, or may be here- 
 after brought, in any State court, in which there is a con- 
 troversy between a citizen of the State in which the suit 
 is brought and a citizen of another State, any defendant, 
 being such citizen of another State, may remove such 
 suit into the circuit court of the United States for the 
 proper district, at any time before the trial thereof, when 
 it shall be made to appear to said' circuit court that from 
 prejudice or local iniiuence he will not be able to obtain 
 justice in such State court, or in any other State court to 
 which the said defendant may, under the laws of the 
 State, have the right, on account of such prejudice or 
 local influence, to remove said cause : Provided, That if 
 it further appear that said suit can be fully and justly 
 determined as to the other defendants in the State court, 
 without being affected by such prejudice or local influ- 
 ence, and that no party to the suit will be prejudiced by 
 separation of the parties, said circuit court may direct the 
 suit to be remanded, so far as relates to such other de- 
 fendants, to the State court, to be proceeded with therein. 
 3 
 
26 SECTION 2 OF ACT OF 1875 AS AMENDED IN 1887. 
 
 At any time before the trial of any suit which, is now 
 pending in any circuit court, or may hereafter be entered 
 therein, and which has been removed to said court from 
 a State court on the affidavit of any party plaintiff that 
 he had reason to believe and did believe that, from prej- 
 udice or local influence, he was unable to obtain justice 
 in said State court, the circuit court shall, on application 
 of the other party, examine into the truth of said affidavit 
 and the grounds thereof, and, unless it shall appear to 
 the satisfaction of said court that said party will not be 
 able to obtain justice in such State court, it shall cause 
 the same to be remanded thereto. Whenever any cause 
 shall be removed from any State court into any circuit 
 court of the United States, and the circuit court shall de- 
 cide that the cause was improperly removed, and order 
 the same to be remanded to the State court .from whence 
 it came, such remand shall be immediately carried into 
 execution, and no appeal or writ of error from the deci- 
 sion of the circuit court so remanding such cause shall be 
 allowed." 
 
 EEMOVAL OF CAUSES. 
 
 Four important changes are here made in the regulations concern- 
 ing the removal of causes. 
 
 No case can now be removed unless " the matter in dispute ex- 
 ceeds, exclusive of interest and costs, the sum or value of two thou- 
 sand dollars." 
 
 When the sole ground for the removal is the status of the parties 
 to the controversy in litigation — that is, because the United States 
 are plaintiffs or petitioners — or there is a controversary between citi- 
 zens of difierent States, " or a controversary between citizens of the 
 same State claiming land under grants of diflEerent States, or a con- 
 troversary between citizens of a State and foreign States, citizens, or 
 subjects," the suit can only be removed by the defendant or defend- 
 ants when non-residents of the State in which it is brought ; except, 
 perhaps, when there is a controversy " wholly between citizens of 
 different States, and which can be fully determined between them." 
 It is doubtful whether this class of cases can be removed by a de- 
 fendant who }s a resident of the State where the suit is brought. 
 
 A suit can now be removed from a State court on account of local 
 
MATTER IN DISPUTE. 27 
 
 prejudice only when a defendant who is a citizen of another State 
 can make it appear to the Circuit Court, " that, from prejudice or 
 local influence, he will not be able to obtain justice in such State 
 court, or in any other State court to which said defendant may, under 
 the laws of the State, have the right, on account of such prejudice or 
 local influence, to remove said cause." Formerly the aflBdavit of 
 any party who was a citizen of another State, alleging " that he has 
 reason to believe and does believe that, from prejudice or local influ- 
 ence, he will not be able to obtain justice in such State court," was 
 sufficient to support a removal. (U. S. R. S. § 639, subd. 3.) 
 
 No suit can now be removed to a Federal court which could not 
 originally have been brought there, except when the sole objection 
 to the original jurisdiction was the non-residence of the defendant. 
 Formerly, in a number of cases, a suit might be removed to a court 
 in which it could not have originally been brought. (Claflin v. In- 
 surance Companies, 110 U. S. '81, and cases cited.) 
 
 An agreement by a corporation not to remove into a Federal court 
 any suit brought against it within a State is void. (Insurance Com- 
 pany V. Morse, 20 Wallace, 446 ; Barron v. Burnside, 121 TJ. S. 
 186.) A State, however, has the power to exclude from its limits 
 any corporation not engaged in interstate or international commerce ; 
 and it seems that the courts will not examine into the reasons for such 
 exclusion, provided the statute under which it is made is constitu- 
 tional. (Paul V. Virginia, 8 Wallace, 168 ; Doyle v. Continental 
 Life Ins. Co. 94 U. S. 535 ; Gloucester Ferry Co. v. Pennsylvania, 
 114 U. S. 196 ; Phila. Fire Ass'n v. New York, 119 U. S. 110 ; 
 Barron v. Burnside, 121 U. S. 186.) 
 
 A stipulation not to remove a specified suit into a Federal court 
 has been held to be valid. (Hanover National Bank v. Smith, 13 
 Blatchford, 224.) 
 
 MATTER IN DISPUTE. 
 
 After a petition and bond for a removal have been filed, the plead- 
 ing cannot be so amended by a reduction of the amount involved as 
 to defeat the jurisdiction of the circuit court. (Kanouse v. Martin, 
 15 Howard, 198 ; Green v. Custard, 23 Howard, 484 ; Wright 
 V. Wells, 1 Peters, C. C. 220 ; Roberts v. Nelson, 8 Blatchford, 
 74.) It has been said that if the amount in dispute when the suit is 
 commenced is sufiicient to authorize a removal, no subsequent event 
 can defeat the right to remove. (Roberts v. Nelson, 8 Blatchford, 
 74. ) But there is a ruling at circuit to the contrary (Maine v. Gil- 
 man, 11 Fed. R. 214), and it has been held that if, since the com- 
 mencement of the suit by the service of an answer setting up a 
 
28 SECTION 3 OF ACT OF 1875 AS AMENDED IN 1887. 
 
 counter- claitn or otherwise, the matter in dispute has been increased 
 to the jurisdictional amount, a removal may occur if the suit has not 
 progressed too far. (Clarkson v. Manson, 4 Fed. R. 257 ; McGinnity 
 V. White, 3 Dillon, 350 ; Contra F. W. M. Co. v. Broderick, 6 Fed. 
 R. 654 ; and see Carrick v. Landman, 20 Fed. R. 209.) 
 
 It seems that the incorporation, by reference to the preceding sec- 
 tion, of this limitation excludes from a removal cases where the 
 matter in dispute is the right to personal liberty or to the custody of 
 a child, and is therefore incapable of pecuniary valuation. (Kurtz 
 V. Moffitt, 115 U. S. 487, 498 ; Barry v. Mercein, 5 Howard, 103 ; 
 Pratt V. Fitzhugh, 1 Black, 271 ; De KrafEt v. Barney, 2 Black, 704 ; 
 Dillon on Removal of Causes, § 50 (3d ed.), p. 62 ; Phillips' Pr. 
 (2d ed.), 82. But see Lee v. Lee, 8 Peters, 44, 48.) 
 
 After a Circuit Court of the United States has once rightfully 
 acquired jurisdiction of a cause by removal or original process, an 
 amendment bringing in new parties or a new cause of action will not 
 ordinarily defeat the jurisdiction. (Ober v. Gallagher, 93 IT. S. 
 199, 206 ; Stewart v. Dunham, 115 U. S. 61, 64). 
 
 CONTROVERSY WHICH CAN BE FULLY DETERMINED AS BETWEEN THEM. 
 
 " To entitle a party to a removal under this clause there must exist 
 in the suit a separate and distinct cause of action in respect to which 
 all the necessary parties on one side are citizens of different States 
 from those on the other." (Hyde v. Ruble, 104 U. S. 407, 409, 
 per Waite, C. J.) 
 
 ' ' The rule is now well established that this clause in the section 
 refers only to suits where there exists ' a separate and distinct cause 
 of action, on which a separate and distinct suit might have been 
 brought and complete relief afiorded as to such cause of action, with 
 all the parties on one side of that controversy citizens of different 
 States from those on the other. To say the least, the case must be 
 one capable of separation into parts, so that ia one of the paits a 
 controversy will be presented with citizens of one or more States on 
 one side, and citizens of other States on the other, which can be 
 fully determined without the presence of the other parties to the suit 
 as it has been begun.' Fraser v. Jennison, 106 U. S. 191, 194." 
 (Ayres v. Wiswall, 112 U. S. 187, 192.) 
 
 This is not the case when the defendant who would otherwise be 
 entitled to remove the suit is charged as jointly liable with another 
 defendant, who is a fellow-citizen of the plaintiff. (Hyde v. Ruble, 
 104 U. S. 407 ; Ayres v. Wjswall, 112 U. S. 187, 193 ; L. & 
 R. R. R. V. Ide, 114 U. S. 52 : Putnam v. Ingraham, 114 U. S. 
 
PREJUDICE OR LOCAL INFLUENCE. 29 
 
 51 ; St. L. &c. R. R. V. Wilson, 114 TJ. S. 60 ; Pirie v. Tredt, 115 
 U. S. 41 ; Starinv. New York, 115 U. S. 248 ; Sloane v. Anderson, 
 117 U. S. 275 ; Fidelity Insurance Co. v. Huntington, 117 U. S. 
 230 ; Core v. Vinal, 117 TJ. S. 347 ; Plymouth Mining Co. 
 V. Amador Canal Co. 118 TJ. S. 265 ; Little v. Giles, 118 TJ. S. 
 506 ; Brooks v. Clark, lly TJ. S. 502.) It makes no difference that 
 the alleged cause of action is both joint and several either in tort or 
 contract, if the plaintiflE sues the defendants jointly (L. & N. R. R. 
 Co. V. Ide, 114 TJ. S. 52 ; St. L. &c. R. R. v. Wilson, 114 TJ. S. 
 60 ; Pirie v. Tvedt, 115 TJ. S. 41 ; Starin v. New York, 115 TJ. S. 
 248 ; Plymouth Mining Co. v. Amador Canal Co. 118 TJ. S. 265 ; 
 Little V. Giles, 118 TJ. S. 596 ; Brooks v. Clark, 119 TJ. S. 502) ; 
 nor that the defendants have filed separate answers (Pirie v. Tvedt, 
 115 TJ. S. 41 ; Sloane v. Anderson, 117 TJ. S. 275, 278) ; nor that 
 one of them has made a default (Putnam v. Ingraham, 114 TJ. S. 
 57 ; Brooks v. Clark, 119 TJ. S. 602) ; nor that judgment has been 
 entered ag'ainst one of them before the other was served with process. 
 (Brooks V. Clark, 119 TJ. S. 502.) If it is claimed that defendants 
 were improperly made parties for the sake of preventing a removal, 
 that fact must be proven to the circuit court by the petitioner ; and 
 even then it is extremely doubtful whether it will justify a removal. 
 (Plymouth Mining Co. v. Amador Canal Co. 118 TJ. S. 264, 270, 
 271 ; Leather Manufacturers' Bank v. Cooper, 120 TJ. S. 778, 781.) 
 "A case is not removable because a colorable assignment has been 
 made to give a State court exclusive jurisdiction." (Leather Manu- 
 facturers' Bank V. Cooper, 120 TJ. S. 778, 781, per Waite, C. J.) 
 
 Where there is but one controversy in the suit, it seems that all the 
 defendants must join in the application for removal ; and that if one 
 of them has lost his right to remove, the other cannot do so, although 
 he has had no previous opportunity. (Fletcher v. Hamlet, 116 
 TJ. S. 408 ; H. & T. C. R. Co. v. Shirley, 111 TJ. S. 358. But see 
 Mutual Life Ins. Co. v. Champlin, 21 Fed. R. 85.) 
 
 The removal takes the entire suit, not merely the separate con- 
 troversy, into the Federal court. (Barney v. Latham, 103 TJ. S. 
 205.) 
 
 PREJUDICE OR LOCAL INFLUENCE. 
 
 A removal on account of prejudice or local influence is analogous 
 to an application in a State court for a change of venue. (Johnson 
 V. Monell, Wool worth, 390, 399, per Miller, J.) The decisions 
 upon such applications in the State courts may, therefore, be use- 
 fully consulted. (E. G. Zobieskie v. Bauder, 1 Caines, 487 ; Baker 
 V. Sleight, 2 Caines, 46 ; N. W. T. R. v. Wilson, 3 Caines, 127 ; 
 
30 SECTION 3 OF ACT OF 1875 AS AMENDED IN 1887. 
 
 Van Renneselaer v. Douglas, 2 Wendell, 290 ; Bowman v. Ely, 
 2 Wendell, 250 ; People v, Webb, 1 Hill, 179 ; JST. J. Zinc Co. 
 V. Blood, 8 Abb. Pr. 147 ; People v. Wright, 5 How. Pr. (N. Y.) 
 23 ; Budge v. Northam, 20 How. Pr. (N. Y.) 248 ; People 
 V. L. I. R. R. Co. 16 How. Pr. (N. Y.) 113 ; Shaw v. Hamilton, 
 10 Indiana, 182 ; Charlotte v. Chouteau, 33 Mo. 194 ; Murray 
 V. N. J. R. R. Co. 23 N. J. L. (3 Zab.) 63 ; Smith v. Hortler, 1 Law 
 Repos. (N. C.) 518 ; Ingersoll v. Wilson, 2 W. Va. 59 ; Ott 
 V. McHenry, 2 W. Va. 73 ; People v. Williams, 24 Cal. 31 ; Milli- 
 son V. Holmes, 1 Ind. 45 ; T. M. &c. Co. v. Wallers, &c. Co. 
 4 Nevada, 218. See also Lewis v. Fire Ins. Co. 2 Cranch C. C. 
 500.) 
 
 Mr. Justice Miller said, speaking of the act for which this clause 
 is a substitute (Johnson v. Monell, Woolworth, 390, 397) : " The 
 act does not in terms prescribe the time at which the citizenship of 
 the moving party must be acquired. Nor is there anything from which 
 to imply that a time was intended to be limited in that regard. Had 
 Congress intended to confine the privileges of the act to parties who 
 were citizens of different States at the commencement of the suit, it 
 wonld have been very easy so to have provided. It did not see fit 
 so to do. On the other hand, in express terms, or at least by the 
 strongest implication, it provided otherwise. The language is : 
 ' Where a suit is now pending, or may hereafter be brought, in any 
 such court in which there is a controversy between a citizen,' etc., 
 which is as much as to say. Whenever a controversy shall arise in a 
 suit pending in a State court, the parties to which shall at any time 
 be citizens of diflEerent States, the cause may be removed. No time 
 at which the citizenship shall be acquired is limited. So the infer- 
 ence is that it may be acquired at any time." (See Miller v. C. B. & 
 Q. R. R. Co. 17 Fed. R. 97 ; Sands v. Smith, 1 Dillon, 290 ; Cook 
 V. Whitney, 3 Woods, 715 ; Hone v. Dillon, 29 Fed. R. 465 ; 
 Contra Frelinghuysen v. Baldwin, 19 Fed. R. 49 ; Schnadig 
 V. Flescher, 29 Fed. R. 465.) 
 
 The restriction as to suits by assignees does not applj' to this 
 clause. (Clafiin v. Insurance Companies, 110 TJ. S. 81, and cita- 
 tions ; Bell V. Noonan, 19 Fed. R. 225.) 
 
 The argument of a demurrer is a trial. (Alley v. Nott, 
 111 U. S. 472 ; Scharf v. Levy, 112 U. S. 711 ; Gregory v. Hartley, 
 113 U. S. 742. But see Hone v. Dillon, 29 Fed. R. 465.) It has 
 been held that the entry of an order taking a bill pro confesso for a 
 failure to appear and answer is not a trial (McHenry v. N. Y. P. & 
 O. R. Co. 25 Fed. R. 65) ; and that the argument of a contested 
 
SECTION 3 OP ACT OF 1875 AS AMENDED IN 1887. 31 
 
 motion for an injunction and an appeal from the decision is equiva- 
 lent to a trial. (C. I. & N. P. R. Co. v. M. & N. W. E. Co. 29 
 Fed. E. 337.) " To bar the right of removal, it must appear that 
 'he trial had actually begun and was in progress in the orderly course 
 of proceeding when the application was made. No mere attempt of 
 one party to get himself upon the record as having begun the trial 
 will be enough. The case must be actually on trial by the court, all 
 parties acting in good faith, before the right of removal is gone. 
 (Waite, C. J., in Eemoval Cases, 100 IT. S. 473. See Maloy v. 
 Duden, 25 Fed. E. 673.) 
 
 NO APPEAL OE WRIT OF ERROE FROM THE DECISION OF THE CIRCUIT 
 COURT SO REMANDING SHALL BE ALLOWED. 
 
 In case of an erroneous omission to remand the cause, the final 
 decision may bo reversed by the Supreme Court, even though no 
 motion to remand was made at circuit. (Grace v. Insurance Com- 
 panies, 109 TJ. S. 278.) 
 
 It seems uncertain whether, under the present practice, npon 
 appeal from the final decision of the State courts, the order of the 
 Federal circuit court remanding the cause can be reviewed. (See 
 TJ. S. E. S. § 709 ; Kanouse v. Martin, 14 Howard, 23.) 
 
 If the Federal court refuses to remand the cause, the State courts 
 have no right to take any further proceedings therein ; and the re- 
 moving party does not lose his right to a reversal of any such proceed- 
 ings upon this ground by trying the case upon its merits in the State 
 court. (Insurance Co. v. Dunn, 19 Wallace, 214 ; Eemoval Cases, 
 100 U. S. 457 ; National S. S. Co. v. Tugman, 106 U. S. 118 ; 
 C. & 0. E. E. Co. V. White, 111 U. S. 134.) 
 
 Perhaps the decision of the circuit court remanding a cause may 
 be reviewed in the Supreme Court by an application for a mandamus. 
 (See Insurance Co. v. Comstock, 16 Wallace, 270 ; Eailroad Co. 
 V. Wiswall, 23 Wallace, 508 ; Hoadley v. San Francisco, 94 XT. S. 
 4, 6.) 
 
 SECTION 3 OF JUDICIARY ACT OF 1875, AS 
 AMENDED IN 1887. 
 
 That Section 3 of said Act be, and the same is hereby 
 amended so as to read as follows : 
 
 " Section 3. That whenever any party entitled to re- 
 
33 SECTION 3 OF ACT OF 1875 AS AMENDED IN 1887. 
 
 move any suit mentioned in the next preceding section, 
 except in such, cases as are provided for in the last clause 
 of said section, may desire to remove such suit from a 
 State court to the Circuit Court of the United States, he 
 may make and file a petition in such suit in such State 
 court at the time, or any time before the defendant is 
 required by the laws of the State or the rule of the State 
 court in which such suit is brought to answer or plead to 
 the declaration or complaint of the plaintiff, for the re- 
 moval of such suit into the Circuit Court to be held in 
 the district where such suit is pending, and shall make 
 and file therewith a bond, with good and sufficient surety, 
 for his or their entering in such Circuit (^ourt, 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 their 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 the 
 said copy being entered 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 commenced in 
 the said Circuit Court ; and if in any action commenced 
 in a State court the title of land be concerned, and the 
 parties are citizens of the same State, and the matter in 
 dispute exceed the sum or value of two thousand dollars, 
 exclusive of interest and costs, the- sum or value being 
 made to appear, one or more of the plaintiffs or defend- 
 ants, before the trial, may state to the court, and make 
 afiidavit, if the court require it, that he or they claim, 
 and shall rely upon a right or title to the land under a 
 grant from a State, and produce the original grant, or an 
 exemplification of it, except where the loss of public rec- 
 ords shall put it out of his or their power, and shall move 
 that any one or more of the adverse party inform the 
 court whether he or they claim a right or title to the land 
 under a grant from some other State, the party or parties 
 so required shall give such information, or otherwise not 
 
PRACTICE ON REMOVAL. 33 
 
 be allowed to plead such grant, or give it in evidence 
 upon the trial ; and if he or they inform that he or they 
 do claim under such grant, any one or more of the party 
 moving for such information may then, on petition and 
 bond, as herein before mentioned in this act, remove the 
 cause for trial to the Circuit Court of the United States 
 next to be holden in such district ; and any one of either 
 party removing the cause shall not be allowed to plead 
 or give evidence of any other title than that by him or 
 them stated as aforesaid as the ground of his or their 
 claim." 
 
 PEACTICE ON EEMOVAL. 
 
 " LAST CLAUSE OF SAID SECTION." 
 
 This would seem to refer to the claase authorizing a removal for 
 prejudice or local influence. It leaves the practice in removing a case 
 upon that ground in great uncertainty. It might be held that the 
 fifth paragraph of U. S. R. S., section 639, is still in force, so far as 
 removals for prejudice or local influence are concerned, although the 
 rest of that section is probably repealed. (See observations upon 
 Section 6 of Judiciary Act of 1887, infra, jj. 56 ) 
 
 It will be prudent when removing cases upon this ground to comply 
 with all the requirements of Section 639 and, except as to the time of 
 removal, with those of Section 3 of the Act of 1887. The afiidavit 
 upon which such a removal is sought may be verified by any one 
 acquainted with the facts, although it is the better practice to have 
 it verified by the plaintiflE. (Dennis v. County of Alachua, 3 Woods, 
 683 ; Dillon on Removal of Causes, § 69 {4th ed.), pp. 85-87.) It 
 is well to state in the affidavit, when verified by another, why not 
 made by the party himself. (Dillon on Removal of Causes, § 69 
 (4th ed.), p. 87.) It is safer practice to state in the affidavit the 
 special facts and circumstances from which the prejudice or local 
 influence is inferred. (Lewis v. Fire Ins. Co. 2 Cranch C. C. 500 ; 
 Kounsalear v. Clarke, 4 Cranch C. C. 98 ; Frank v. Avery, 21 Wis- 
 consin, 166 ; Sloan v. Smith, 3 California, 410 ; Tooms v. Randall, 
 3 California, 438 ; Kerr v. Whitaker, 3 K J. L. (2 Pen. 514.) It 
 has been held that the affidavit must be verified in accordance with 
 the laws of the State in which the circuit court is held. (Suther- 
 land V. Jersey City & B. R. Co. 22 Fed. E. 356, 358 ; Bowen v. 
 Chase, 7 Blatchford, 255.) 
 
34 SECTION 3 OF ACT OF 1875 AS AMENDED IN 1887. 
 
 PETITION FOB REMOVAL. 
 
 " Such a petition must state facts sufficient to entitle him to have 
 the transfer made. This cannot be done without showing that the 
 circuit court would have jurisdiction of the suit when transferred. 
 The one necessarily includes the other." (Chase, C. J., in Railway 
 Company v. Ramsey, 22 Wallace, 322, 328.) It must state the 
 facts showing that such a case exists as the statute permits to be 
 removed. A mere general allegation of the language of the statute 
 will be disregarded as a conclusion of law. (Gold Washing, &c. Co. 
 V. Keyes, 96 U. S. 199 ; Grace v. Insurance Companies, 109 U. S. 
 278 ; Carson v. Dunham, 121 U. S. 421.) 
 
 " The allegations of the petition for removal are jurisdictional, and 
 they must be positive and certain' because the court cannot well pro- 
 ceed to take jurisdiction of a case and try the same as long as there 
 is any doubt upon the question of jurisdiction." (McCrary, C. J., 
 in Wolff V. Archibald, 14 Fed. R. 369.) It has, therefore, been 
 held that if any of the essential allegations of the petition are alleged 
 upon information and belief it is defective. (Wolff v. Archibald, 
 14 Fed. R. 369.) When the right to remove rests upon a difference 
 in citizenship, the citizenship of each of the parties should be alleged. 
 (Grace v. Insurance Companies, 109 U. S. 278.) It is insufficient 
 to state their residence. (Grace v. Insurance Companies, 109 TJ. S. 
 278.) The petition in all cases not removed on account of prejudice 
 or local influence should show that the difference in citizenship ex- 
 isted both at the time of the commencement of the suit and at the 
 time of the application for removal. (Gibson v. Bruce, 108 IT. S. 
 661 ; H. & T. R. R. Co. v. Shirley, 111 U. S. 358 ; Akers v. Akers, 
 117 U.S. 197.) 
 
 If, however, either or both of those facts are alleged with sufficient 
 precision in the pleadings, they need not be restated in the petition. 
 (Bondurant v. Watson, 103 TJ. S. 281 ; Steamship Co. v. Tugman, 
 106 U. S. 118.) The allegation " that said plaintiffs as such exec- 
 utors are citizens of the State of New York' ' was held insufficient. 
 (Amory v. Amory, 95 U. S. 186. But see Cooke v. Seligman, 
 7 Fed. R. 263.) 
 
 So, when a removal is claimed upon the ground that the suit arises 
 under the Constitution and laws of the United States, the petition 
 must state the facts showing that such is the case, unless those facts 
 appear in pleadings previously filed or served, when such allegations 
 may be incorporated into the petition by reference. (Gold Washing, 
 &c. Co. V. Keyes, 96 U. S. 199, 204 ; Trafton v. Nougues, 
 4 Sawyer, 178 ; Carson v. Dunham, 121 U. S. 421.) 
 
PRACTICE ON REMOVAL. 35 
 
 The petition should also show that the matter in dispute is the 
 jurisdictional amount, unless this already appears from the pleadings. 
 (United States v. Pratt Coal & Oil Co. 18 Fed. R. 708 ; Dillon 
 on Removal of Causes, § VO (4th ed.), p. 115.) 
 
 The petition need not be verified. (Sweeney v. CoflSn, 1 Dillon, 
 73 ; Allen v. Ryerson, 2 Dillon, 501 ; Houser v. Clayton, 3 Woods, 
 273.) It may be signed either by the petitioner or by his attorney 
 in fact or at law. (Dennis v. Alachua County, 3 Woods, 683 ; 
 Wormser v. Dahlman, 16 Blatchford, 319. See also Removal Cases, 
 100 U. S. 457.) 
 
 " A party is not entitled, under existing laws, to file a second 
 petition for the removal upon the same grounds, where, upon the 
 first removal by the same party, the Federal court declined to pro- 
 ceed and remanded the suit, because of his failure to file the required 
 copy within the time fixed by the statute. When the circuit court first 
 remanded the cause — the order to that effect not being superseded — 
 the State court was reinvested with jurisdiction, which could not be 
 defeated by another removal upon the same grounds and by the 
 same party." (Harlan, J., in St. P. & C. R. Co. v. McLean, 108 
 U. S. 212, 217. See Johnston v. Donvan, 30 Fed. R. 395.) 
 
 It has been held at circuit that there is grave doubt as to the power 
 of the circuit court to permit an amendment of the petition, and that 
 an application for that purpose should be denied. (MacNaughton 
 V. S, P. C. R. R. Co. 19 Fed. R. 881 ; Endy v. Commercial Fire Ins. 
 Co. 24 Fed. R. 657.) But the Supreme Court has said that, if the 
 jurisdictional facts are not properly stated, " there is no good reason 
 why an amendment should not be allowed, so that they may be prop- 
 erly stated." (Ayers v. Watson, 113 U. S. 594, 598. See Barclay 
 V. Levee Commissioners, 1 Woods, 254 ; Houser v. Clayton, 3 
 Woods, 273, 277 ; Woolridge v. MoKenna, 8 Fed. R. 650 ; Coburn 
 V. C. V. L. & C. Co. 25 Fed. R. 791.) And the rule has been thus 
 stated : 
 
 " If, upon the filing of a petition for removal, the State court 
 grants the prayer of the petition, and the transcript is filed in the 
 United States court ; and, upon a motion to remand being made, 
 some defect "in the averments of the petition are discovered — no good 
 reason is perceived why an amendment should not be allowed in order 
 that the averments in the petition may be made to show the very 
 truth of the case. Under such circumstances, the effect of the amend- 
 ment is to show that the order of the State court was proper, according 
 to the facts. If, however, the State court did not grant or refused an 
 order for the removal of the cause, then a different rule should prevail. 
 
36 SECTION 3 t)F ACT OF 1875 AS AMENDED IN 1887. 
 
 The case having been originally brought in tbe State court, its 
 jurisdiction has attached, and it cannot be compelled, nor, in fact, is 
 it justified, in parting with jurisdiction, unless the record presented 
 to it shows that the case is properly removable under the law. The 
 right of removal is purely statutory. The State court is in duty 
 bound to retain jurisdiction, unless the party seeking a removal shows 
 upon the record in that court a legal right of removal. If, then, a 
 party seeking a removal does not upon the record make a showing 
 sufficient to terminate the jurisdiction of the State court, and for 
 that reason the State court does not yield up its jurisdiction, can it 
 be permitted to the petitioner to file a transcript in tbe United States 
 court, and then, in the latter court, file amendments showing that he 
 had a right of removal ? The State court is not required to take 
 notice of papers filed or proceedings had in the United States courts. 
 As already said, the State court must retain jurisdiction, and proceed 
 with the cause until, upon its record, it is made to appear that the 
 case is one removable to the United States court. Its jurisdiction 
 cannot be affected by papers filed in the United States courts. 
 
 " If a party having in fact the right of removal wishes to exercise 
 the right, he must comply with the statutory requirements. In other 
 words, he must file in the State court a sufficient showing and proper 
 bond. If the showing is incomplete and insufficient, the jurisdiction 
 of the State court continues. If the party by amendment can per- 
 fect the showing, he must do so in tbe State court. He cannot, 
 by filing a transcript in this court, confer the right upon the Federal 
 tribunal of terminating the jurisdiction of the State court by allowing 
 an amendment to be filed in this court." (Shiras, J., in Winnemans 
 V. Edgington, 27 Fed. R. 324, 326.) 
 
 In a recent case the Supreme Court held that a subsequent answer 
 might be treated as an amendment to the petition for removal. " As 
 an amendment, the answer was germane to the petitiou, and did no 
 more than set forth in proper forta what had before been imperfectly 
 stated. To that extent, we think, it was proper to amend a petition 
 which, on its face, showed a right to the transfer. Whether this 
 could have been done if the petition, as presented to the State court, 
 had not shown on its face sufficient ground of removal, we do not 
 now decide." (Carson v. Dunham, 121 U. S. 421, 427.) 
 
 BOND UPON REMOVAL. 
 
 The bond must name a specific sum as the penalty. If the place 
 for the amount of the penalty is left blank, it is insufficient. (Burdick 
 V. Hale, 1 Bissellj 96.) A penalty of $1000 will ordinarily be suffi- 
 
PRACTICE ON REMOVAL. 37 
 
 cient when the defendant has not been held to bail. (Blanchard 
 V. D wight, 12 Wendell, 192.) If the condition is simply that the 
 petitioner will file " copies of all process," it is insufficient. (Burdick 
 V. Hale, 1 Bissell, 96.) The following condition was held to be 
 sufficient : " If the said petitioners shall enter in the said circuit 
 court of the United States, on the first day of its next session, a copy 
 of the record in said suit, and shall well and truly pay all costs that 
 may be awarded by said circuit court of the United States, if said 
 court shall hold that said suit was wrongfully or improperly removed 
 thereto, and do or cause to be done such other and appropriate acts 
 as by the acts of Congress approved March 3d, 1875, and other acts 
 of Congress, are required to be done upon the removal of a suit into 
 the United States circuit court from a State court." (Cooke v. Selig- 
 man, 7 Fed. R. 263.) 
 
 The bond must provide for the payment of costs in case of a re- 
 mand. (Sheldrlck v. Cockcroft, 27 Fed. E. 579 ; Torrey v. Grant 
 Works, 14 Blatchford, 269. But see Dennis v. County of Alachua, 
 3 Woods, 683, 688.) 
 
 The bond need not be executed by the petitioner, if it have a prin- 
 cipal and a sufficient surety. (Stevens v. Richardson, 20 Blatchford, 
 53 ; S. C, 9 Fed. R. 191 ; P. G. &c. Exchange v. W. U. Tel. Co. 
 16 Fed. R. 289 ; S. C, 11 Bissell, 568.) When the petitioner is 
 named as principal, it seems that it may be executed in his name by 
 his Mtorney-at-law. (Dennis v. County of Alachua, 3 Woods, 683, 
 687.) 
 
 A defect in the bond may be cured by amendment, with leave of 
 the court, or a new bond may be filed, if such leave to do so be ob- 
 tained. (Dennis v. County of Alachua, 3 Woods, 683, 688 ; Ayers 
 V. Watson, 113 U. S. 594, 598 ; Coburn v. C. V. L. &c. Co. 25 
 Fed. R. 791.) 
 
 It is customary to procure the approval of the bond by the State 
 court. Whether the Federal court has the power to approve the 
 bond after the State court has disapproved it, or to disapprove it 
 after the State court's approval, is unsettled. (Compare Osgood 
 V. Chicago, &c. R. R. Co. 6 Bissell, 330 ; Dennis v. County 
 of Alachua, 3 Woods, 683 ; Cooke v. Seligman, 7 Fed. R. 263 ; 
 Fisk V. U. P. R. R. Co. 6 Blatchford, 362 ; Taylor v. Shew, 54 
 N. Y. 75 ; Mix v. Andes Insurance Co. 74 N. Y. 53 ; Stone 
 V. South Carolina, 117 U. S. 430 ; Carson v. Dunham, 121 U. S. 
 421.) 
 
 It has been held at circuit that ' ' the want of acknowledgment or 
 proof of the execution of the bond was a matter of practice for the 
 
38 SECTION 4 OF ACT OF 1875. 
 
 State court to pass upon, and it will not be reviewed by this court 
 after the State court has accepted the bond." (Cooke v. Seligman,' 
 '1 Fed. R. 263, 269, per Blatchford, J.) Such an objection cannot 
 be raised for the first time in the Supreme Court. (Removal Cases, 
 100 U.S. 457.) 
 
 No order of the State court is essential to the removal. (Kern 
 V. Huidekoper, 103 U. S. 485 ; Insurance Co. v. Dunn, 19 Wallace, 
 714.) 
 
 TIME OP REMOVAL. 
 
 The petition and bond may be filed in vacation. (Osgood v. C. D. 
 & V. R. R. Co. 6 Bissell, 330.) If the defendant's time to plead or 
 answer has been extended by consent or order, it seems that the time 
 to remove is likewise extended. (Winberg v. B. C. R. R. & Lumber 
 Co. 29 Fed. R. 721 ; Simonson v. Jordan, 30 Fed. R. 721. But see 
 Pullman Palace Car Co. v. Speck, 113 U. S. 84 ; Murray v. Holden, 
 2 Fed. R. 740.) 
 
 COSTS. 
 
 It has been held that the costs secured by the bond when the case 
 is remanded are the docket fee of $20 (Joislyn v. Phillips, 27 Fed. 
 R. 481) ; and, when the case is dismissed for failure to proceed there- 
 in, the costs that accrued in the State court up to the time of the re- 
 moval. (Anonymous, 13 Abbott's New Cases (N. Y.), 54 ; Wolf 
 V. Conn. Mutual Life Ins. Co. 1 Flippin, 377 ; Young v. Merchants' 
 Ins. Co. 29 Fed. R. 273, 276.) But no disbursements can be taxed 
 in the Federal court which were incurred in the State court after the 
 petition and bond were filed. (Young v. Merchants' Ins. Co. 29 
 Fed. R. 273.) . _ „ 
 
 SECTION 4 OF JUDICIAET ACT OF 1875. 
 
 ^ SECTioisr 4. That when any suit shall be removed from 
 a State court to a Circuit Court of the United States any 
 attachment or sequestration of the goods or estate of the 
 defendant had in such suit in the State court shall hold 
 the goods or estate so attached or sequestered to answer 
 the final judgment or decree in the same manner as by 
 law they would have been held to answer final judgment 
 or decree had it been rendered by the court in which such 
 suit was commenced ; 
 
EFFECT OF REMOVAL UPON PREVIOUS PROCEEDINGS. 39 
 
 And all bonds, undertakings, or security gi^en by either 
 party in such snit prior to its removal shall remain valid 
 and effectual, notwithstanding said removal ; 
 
 And all injunctions, orders, and other proceedings had 
 in such suit prior to its removal shall remain in full force 
 and effect until dissolved or modified by the court to 
 which such suit shall be removed. 
 
 EFFECT OF REMOVAL ON PREVIOUS PROCEEDINGS. 
 
 The Act of 1876 (Section 3) provided that upon a removal " any 
 bail that may have been previously taken shall be discharged." This 
 clause is repealed by the Act of 1887, and such bail is now, there- 
 fore, a security which remains in force. 
 
 A stipulation made before removal will be enforced afterward. 
 (Phelps V. C. C. R. Co. 19 Fed. R. 801.) 
 
 It has been held at circuit that, after removal, the Federal court may 
 authorize its marshal to take into his custody property held by the 
 sheriff under a write of the State court issued before the removal. 
 (Friedman v. Israel, 26 Fed. R. 801. See Dennistoun v. Draper, 
 5 Blatchford, 336.) A receiver appointed before the removal of the 
 case remains in possession until himself removed, and may be required 
 to account in the Federal court. (Hinckley v. Railroad Co. 100 
 U. S. 153.) 
 
 It has been held at circuit that the Federal court cannot after re- 
 moval punish a party for his violation before the removal of an order 
 of the State court. (Kirk v. M. D. C. Manuf'gCo. 26 Fed. R. 501. 
 But see W. M. & R. Co. v. Raynor, 7 Bissell, 245.) 
 
 An order of the State court for the examination of a party before 
 trial under section 870 of the New York Code of Civil Procedure 
 must be vacated after removal by the Federal court. (Ex parte Fisk, 
 113 U. S. 713.) 
 
 SECTION 5 OF JUDICIAEY ACT OP 1875 AS 
 AMENDED BY THE JUDICIARY ACT OF 1887. 
 
 Section 5. That if, in any suit commenced in a circuit \ 
 court, or removed from a State court to a Circuit Court 
 of the United States, it shall appear to the satisfaction of 
 
40 SECTION 5 OF ACT OF 1875 AS AMENDED IN 1887. 
 
 said circuit court, at any time after such suit has been 
 brought or removed thereto, that such suit does not really 
 and substantially involve a dispute or controversy prop- 
 erly within the jurisdiction of said circuit court, or that 
 the parties to said suit have been improperly or coUu- 
 sively made or joined, either as plaintiffs or defendants, 
 for the purpose of creating a case cognizable or remov- 
 able under this act, the said circuit court shall proceed 
 no further therein, but shall dismiss the suit or remand 
 it to the court from wrhich it was removed, as justice may 
 require, and shall make such order as to costs as shall be 
 just. 
 
 The last paragraph of this section is repealed by Section 6 of the 
 Act of 1887. It is as follows : " But the order of said circuit court 
 dismissing or remanding said cause to the State court shall be review- 
 able by the Supreme Court on writ of error or appeal, as the case 
 may be." (See observations under Sub-Section 2 of Section 1, supra, 
 page 31.) 
 
 The Supreme Court said of the first clause of this section : 
 " We deem it proper to say that this provision of the Act of 1875 is 
 a salutary one, and that it is the duty of the circuit courts to exercise 
 their power under it in proper cases." " Whether, if a defendant al- 
 lows a case to go on until judgment has been rendered against him, he 
 can take advantage of the objection on appeal or writ of error, we need 
 not now decide." (Waite, C. J., in Williams v. Nottawa, 104 TJ. S. 
 209, 212.) " Neither party has the right, however, without plead- 
 ing at the proper time and in the proper way, to introduce evidence^ 
 the only purpose of which is to make out a case for dismissal. The 
 parties cannot call on the court to go behind the averments of citizen- 
 ship in the record, except by a plea to the jurisdiction or some other 
 appropriate form of proceeding. The case is not to be tried by the 
 parties as if there was a plea to the jurisdiction, when no such plea 
 has been filed. The evidence must be directed to the issues, and it 
 is only when facts material to the issues show there is no jurisdiction 
 that the court can dismiss the case upon the motion of either party. 
 If in the course of a trial it appears by evidence, which is admis- 
 sible under the pleadings, and pertinent to the issues joined, that the 
 suit does not really and substantially involve a dispute of which the 
 court has cognizance, or that the parties have been improperly or 
 collusively made or joined for the purpose of creating a cognizable 
 case, the court may stop all further proceedings and dismiss the 
 
DISMISSAL FOE COLLUSION. 41 
 
 suit." " No doubt, if, from any source, the court is led to suspect 
 that its jurisdiction has been imposed upon by the collusion of the 
 parties, or in any other way, it may at once of its own motion cause 
 the necessary inquiry to be made, either by having the proper issue 
 joined and tried, or by some other appropriate form of proceeding, 
 and act as justice may require for its own protection against fraud or 
 imposition. But the evidence on which the circuit court acts in 
 dismissing the suit must be pertinent either to the issue made by the 
 parties, or to the inquiry instituted by the court ; and must appear of 
 record if either party desires to invoke the exercise of the appellate 
 jurisdiction of this court for the review of the order of dismissal 
 (Barry V. Edmunds, 116 U. S. 550). And when the defendant has not 
 so pleaded as to entitle him to object to the jurisdiction, and the ob- 
 jection is taken by the court of its own motion, justice requires that 
 the plaintiff should have an opportunity to be heard upon the motion, 
 and to meet it by appropriate evidence. ' ' (Waite, C. J. , in Hartog 
 V. Memory, 116 IT. S. 588, 590-592. See Davies v. Lathrop, 13 
 Fed. E. 665.) " It might happen that the judge, on the trial or 
 hearing of a cause, would receive impressions, amounting to a moral 
 certainty, that it does not really and substantially involve a dispute or 
 controversy within the jurisdiction of the court. But upon such a 
 personal conviction, however strong, he would not be at liberty to 
 act, imless the facts on which the persuasion is based, when made 
 distinctly to appear on the record, create a legal certainty of the 
 conclusion based on them. Nothing less than this is meant by the 
 statute when it provides that the failure of its jurisdiction on this 
 account ' shall appear to the satisfaction of said circuit court.' " 
 (Matthews, J., in Barry v. Edmunds, 116 U. S. 550, 559.) 
 
 The record must show affirmatively the jurisdiction of the court, 
 or the cause may be dismissed at any time, even upon appeal, when- 
 ever the omission is discovered. (Grace v. Insurance Companies, 
 109. U. S. 278 ; Bors v. Preston, 111 XJ. S. 252.) It has been said, 
 however : " For the purposes of this appeal we need not inquire when 
 the circuit court first got jurisdiction of this suit. It is sufficient if 
 it had jurisdiction when the decree appealed from was rendered. As 
 no objections were made by the parties in the progress of the cause 
 to the right of the court to proceed, and the decree when rendered 
 was consented to, it is enough for the purposes of this appeal if the 
 record shows that when the consent was acted on by the court juris- 
 diction was complete. Consent cannot give the courts of the United 
 States jurisdiction, but it may bind the parties and waive preA'ious 
 errors, if when the court acts jurisdiction has been obtained. ' ' (Waite, 
 C, J., in Pacific Railroad v. Ketchum, 101 U. S. 289, 298.) 
 4 
 
42 SECTION 5 OF ACT OF 1875 AS AMENDED IN 1887. 
 
 If it is desired to contradict an allegation in the petition for re- 
 moval, an answer or a plea in abatement to the petition should be 
 filed in the Federal court. (Clarkhufe v. W. I. & N. E. Co. 26 
 Fed. R. 465 ; Lacroix v. Lyons, 27 Fed. E. 403 ; Eumsey v. Call, 
 28 Fed. E. 769 ; Carson v. Dunham, 121 U. S. 421.) When the 
 alleged difference of citizenship is denied, the burden of proof rests 
 on the party who seeks the removal. (Carson v. Dunham, 121 U. S. 
 421, 425.) All questions of this sort must be tried in the Federal 
 court. (Stone v. South Carolina, 117 TJ. S. 430.) 
 
 When the plaintifE acquired the causes of action, which he sought 
 to enforce solely for the purpose of collection under an agreement 
 to pay back a certain proportion of the net proceeds to his assignors, 
 who could not have sued in a Federal court, it was held that the case 
 should be dismissed. (Farmington v. Pillsbury, 114 TJ. S. 138 ; 
 Williams v. Nottawa, 104 U. S. 209 ; Bernards Township v. Steb- 
 bins, 109 TJ. S. 341 ; New Providence v. Halsey, 117 TJ. S. 336 ; 
 Little V. Giles, 118 TJ. S. 596.) 
 
 " To justify a dismissal it must appear that the object was to create 
 a case cognizable under the Act of 1875." (Lanier v. Nash, 121 
 TJ. S. 404, 410, per Waite, C. J.) When a transfer of the cause of 
 action was evidently made for another purpose, the Federal court 
 retained its jurisdiction. (Lanier v. Nash, 121 TJ. S. 404.) 
 
 When, after all the pleadings are filed in a cause removed to or 
 brought in a Federal court on the claim that it is a case arising under 
 the Constitution and laws of the United States, it appears that the 
 averments upon which the jurisdiction is claimed are immaterial, it is 
 the duty of the court to dismiss or remand the cause. (Robinson 
 V. Anderson, 121 U. S. 522.) 
 
 Equity Eule 94 is as follows (104 TJ. S. ix.) : 
 
 ' ' Every bill brought by one or more stockholders in a corporation 
 against the corporation and other parties, founded on rights which 
 may properly be asserted by the corporation, must be verified by 
 oath, and must contain an allegation that the plaintifE was a share- 
 holder at the time of the transaction of which he complains, or that 
 his share had devolved on him since by operation of Jaw, and that 
 the suit is not a collusive one to confer on a court of the TJnited 
 States jurisdiction of a case of which it would not otherwise have 
 cognizance. It must also set forth with particularity the efforts of 
 the plaintifE to secure such action as he desires on the part of the 
 managing directors or trustees and, if necessary, of the shareholders, 
 and the causes of his failure to obtain such action." (See Hawes 
 v. Oakland, 104 TJ. S. 450 ; Huntington v. Palmer, 104 TJ. S. 482 ; 
 
DISMISSAL FOR COLLUSION. 43 
 
 Detroit v. Dean, 106 TJ. S. 537 ; Greenwood v. Freight Company, 
 105 U. S. 13 ; Quincy v. Steel, 120 U. S. 241 ; County of Taze- 
 well V. F. L. & Tr. Co. 12 Fed. R. V52.) 
 
 This rule has been applied in a recent case as follows : 
 " The bill in the present case, although verified by oath, is far 
 from complying with the letter or the spirit of this rule. It does not 
 contain an allegation that the plaintiff was a shareholder at the time 
 of the transaction of which he complains, although the allegation on 
 that subject includes a part of the time in which the city of Quincy 
 failed to pay for its gas ; but inasrnuch as the sworn allegation in the 
 bill was made on the 18th day of August, 1885, and he there swears 
 , that he had been the owner of the stock on which he brings this suit 
 over four years, it is easy to suppose that he acquired this stock after 
 the 11th day of May, 1881, on which day the city by its oflScial 
 action notified the gas company that it repudiated the contract and 
 would no longer be bound by it. And it is not an unreasonable 
 supposition that the gas company, foreseeing litigation which it 
 might be desirable for that company to have carried on in a Federal 
 court, immediately after receiving notice of that resolution had this 
 stock placed in the hands of Mr. Steel for the purpose of securing 
 that object, and though the suit was delayed for two or three years, 
 it vvas probably because the city continued to pay some part of the 
 demand for the gas furnished by the company. The bill does not con- 
 tain the allegation expressly prescribed by this rule, that ' the suit is not 
 a collusive one to confer on a court of the United States jurisdiction of 
 a case of which it would not otherwise have cognizance. ' The allega- 
 tion of the bill,' that this suit is brought in good faith, and for the col- 
 lection of, and to compel the collection of, what your orator believes to 
 be a meritorious claim,' is by no means the equivalent of this provision 
 of the rule, for it may very well be understood that the party who is 
 seeking to enforce a debt which he believes to be due is acting in 
 good faith for the purpose of compelling its collection, while he may 
 be well aware that he is imposing upon the court to which he actually 
 resorts a jurisdiction which does not belong to it. The rule also re- 
 quires that he must set forth with particularity his efforts to secure 
 action on the part of the managing directors or trustees of the cor- 
 poration of which he is a member, and, if necessary, of the share- 
 holders, and the causes of his failure to obtain such action. In the 
 case before us he seems to have made but a single effort to induce the 
 directors of the gas company to institute a suit against the city to 
 recover the money, and this was by a communication in writing ad- 
 dressed to the board, August 1st, 1885. No copy of that letter is 
 
44 SECTION 6 OF JUDICIARY ACT OF 1875. 
 
 produced, but it is said that the board of directors laid the communi- 
 cation on the table. No copy of the order of the board upon that 
 subject is produced ; no effort at conversation with any of the direc- 
 tors, or any earnest effort of any kind upon his part to induce the 
 directors to bring the suit is shown in the bill ; no attempt to call 
 the attention of the shareholders to this matter during the four years 
 in which he said he was a shareholder, and during which time the 
 city was failing to pay its debt to the gas company, nor any effort at 
 any of the meetings of the shareholders or of the directors to induce 
 them to enforce the rights of the company against the city, is shown. 
 The most meagre description possible of a bare demand in writing, 
 made sixteen days before the institution of this suit, is all we have 
 of the efforts which he should have made to induce this corporation 
 to assert its rights. This letter was addressed to the board of direc- 
 tors, August 1st, 1885, from what point is not stated, but it may 
 reasonably be inferred that it was from Alabama, of which State he 
 was a citizen. The bill itself is sworn to the 13th day of August 
 thereafter. How long a time was left for the consideration of this 
 question by the board of directors, and what earnest efforts Mr. Steel 
 may have made to induce their favorable action, may be easily in- 
 ferred from the speed with which the bill was sworn to in Alabama 
 and filed after he addressed his letter to the board. The inference 
 that the whole of this proceeding was a preconcerted and simulated 
 arrangement to foist upon the circuit court of the United States juiis- 
 dictlon in a case which did not fairly belong to it, is very strong." 
 (Miller, J., in Quincy v. Steel, 120 U. S. 241, 246, 247.) 
 
 When the bill shows " a condition of things touching the control 
 of the corporate affairs by those intrusted with their active manage- 
 ment as would have rendered such a formal application an idle cere- 
 mony," and irreparable injury might result from the delay in sning, 
 an omission to allege a formal application to the board of directors 
 will not make the bill fatally defective. (County of Tazewell 
 V. F. L. & Tr. Co. 12 Fed. R. 752.) 
 
 SECTION 6 OF JUDICIARY ACT OF 1875. 
 
 Section 6. That the Circuit Court of the United States 
 shall, in all suits removed under the provisions of this 
 act, proceed tiierein as if the suit had been originally 
 
PRACTICE AFTER REMOVAL. 45 
 
 commenced in said circuit court, and the same proceed- 
 ings had been taken in such suit in said circuit court as 
 shall have been had therein in said State court prior to 
 its removal. 
 
 PRACTICE AFTEE REMOVAL. 
 
 If the suit in the State court is in its nature an action at common 
 law, no repleader is necessary after the removal. (Dart v. McKinney, 
 9 Blatchford, 359 ; Merchants', &c. National Bank v. Wheeler, 
 13 Blatchford, 218 ; Bills v. N. O. &c. R. R. Co. 13 Blatchford, 
 227.) "Nor is a repleader necessary in equity causes where the 
 complaint or petition in the State court contains the substance of a 
 bill in equity adopted to present the plaintifi's case. But although 
 a repleader in such a case be not indispensable, it may often be ad- 
 visable. " (Dillon on Removal of Causes, § 47 (4th ed.), p. 76.) 
 " Where the suit in the State court unites legal and equitable grounds 
 of relief or of defence, as authorized by the statutes of the State, it may, 
 in the Federal court, be recast into two cases, one at law and one in 
 equity, and in such a case a repleader is necessary." (Perkins 
 V. Hendryx, 23 Fed. R. 418 ; Lacroix v. Lyons, 27 Fed. R. 403 ; 
 La Mothe Manuf'g Co. v. National Co. 15 Blatchford, 432 ; Phelps 
 V. Elliott, 26 Fed. R. 881.) If no such repleader is had, so much of 
 the pleadings as present matters not cognizable on that side of the 
 court to which the cause is removed must be stricken out, without 
 prejudice to its presentation in a new suit. (Hurt v. Hollingsworth, 
 100 U. S. 100 ; Lacroix v. Lyons, 27 Fed. R. 403.) 
 
 When the plaintiff proceeds after removal upon the wrong side of 
 the court, the proper practice is to sustain a demurrer to his pleading, 
 without prejudice to his right to replead on the other side of the 
 court. (Perkins v. Hendryx, 23 Fed. R. 418, 419. But see Pilla 
 V. German School Ass'n, 23 Fed. R. 700, 703.) 
 
 If the suit is of, an equitable nature, the defendant's right to plead 
 does not expire till the second rule-day after his appearance, although 
 his answer was due when the petition for a removal was filed. (Web- 
 ster v. Crothers, 1 Dillon, 301.) 
 
 " It is not understood, however, that a prayer for such relief as a 
 court of law can give at the end of a statement of a cause of action 
 makes it an action at law, but that the grounds of action should be 
 such as a court of law can proceed upon to judgment." (Phelps 
 V. Elliott, 26 Fed. E. 881, 883, per Wheeler, J.) 
 
 It seems that the filing of a petition and bond for removal, if not 
 
46 SECTION 6 OF JUDICIARY ACT OF 1875. 
 
 accompanied by a general appearance, does not prevent a motion in 
 the Federal court to set aside the service of the process and dismiss 
 the suit for want of jurisdiction of the person. (Hendrickson 
 V. C. R. I. & P. R. R. Co. 22 Fed. R. 569 ; KauSman v. Kennedy, 
 25 Fed. R. 785. But see Sayles v. N. W. Ins. Co. 2 Curtis, 212 ; 
 Edwards v. Conn. Mutual Life Ins. Co. 20 Fed. R. 452.) 
 
 It was held, under the Act of 1875, that, when a defendant was 
 properly within the jurisdiction of the State court, he could not after 
 the removal have the suit dismissed upon the ground that he was not 
 served within that Federal district. (Friezen v. Allemania Fire Ins. 
 Co. 30 Fed. R. 349.) 
 
 ' ' Wherever there is a total absence of jurisdiction over the subject- 
 matter in the State court, so that it had no power to entertain the 
 suit in which the controversy was sought to be litigated in its then 
 existing or any other form, there can be no jurisdiction in the Federal 
 court to entertain it on removal, although in some other form it 
 would have plenary jurisdiction over the case made between the 
 parties." (Fidelity Trust Co. v. Gill Car Co. 25 Fed. R. 737, 739, 
 jyer Hammond, J. Same point. Hummel v. Moore, 25 Fed. R. 380 ; 
 Sutro V. Simpson, 14 Fed. R. 370 ; Contra Kelly v.Va. P. Ins. Co. 
 3 Hughes, 449.) 
 
 If after amendment the pleadings do not allege the jurisdictional 
 facts, the suit will not be dismissed if they appear in the petition for 
 the removal. (Briges v. Sperry, 95 U. S. 401.) 
 
 The decisions of the State court made in the case before its removal 
 will ordinarily be followed by the Circuit Court. (Bryant v. Thomp- 
 son, 27 Fed. R. 881 ; Loomis v. Carrington, 18 Fed. R. 97 ; Duncan 
 V. Gegan, 101 U. S. 810 ; Milligan v. L. & G. M'f'g Co. 21 Blatch- 
 ford, 407 ; Bushnell v. Kennedy, 9 Wall. 387 ; Fisk v. U. P. R. R. 
 Co. 6 Blatchford, 362 ; Davis v. St. L. & S. F. R. R. Co. 25 Fed. 
 R. 786. But see Spring Co. v. Knowlton 103 TJ. S. 49.) If it is 
 desired to renew a motion which the State court has denied, "leave 
 to make the application should first be applied for and obtained." 
 (Carrington v. Florida R. R. Co. 9 Blatchford, 468.) " The removal 
 of a case from a State to a Federal court means no appeal, It is 
 simply a change of venue." (Davis v. St. L. & S. F. R. R. Co. 25 
 Fed. R. 786.) When, however, at the time of a removal a motion 
 was pending to resettle an order previously made, the Circuit Court 
 entertained the application, though it refused to review the decision 
 upon which that order had been entered. (Milligan v. L. & G. 
 Manuf'g Co. 17 Fed. R. 465.) 
 
 The successful party is entitled to recover not only the costs of the 
 
SECTION 7 OP JUDICIARY ACT OF 1875. 47 
 
 proceedings in the Federal coarts, but also those which accrued in the 
 State court before the removal. (Anonymous^ 13 Abbott's N. C. 
 (U. S. C. C. S. D. N. Y.) 64.) 
 
 SECTION 7 OF JUDICIARY ACT OF 1875. 
 
 Section 7. That in all causes removable under this act, 
 if the term of the circuit court to which the same is re- 
 movable, then next to be holden, shall commence within 
 twenty days after filing the petition and bond in the State 
 court for its removal, then he or they who apply to re- 
 move the same shall have twenty days from such appli- 
 cation to file said copy of record in said circuit court 
 and enter appearance therein ; and if done within said 
 twenty days, such filing and appearance shall be taken 
 to satisfy the said bond in that behalf ; 
 
 That if the clerk of the State court in which any such 
 cause shall be pending shall refuse to any one or more 
 of the parties or persons applying to remove the same a 
 copy of the record therein, after tender of legal fees for 
 such copy, said clerk so offending shall be deemed guilty 
 of a misdemeanor, and, on conviction thereof in the Cir- 
 cuit Court of the United States to which said action or 
 proceeding was removed, shall be punished by imprison- 
 ment not more than one year, or by fine not exceeding 
 one thousand dollars, or both, in the discretion of the 
 court. 
 
 And the circuit court to which any cause shall be re- 
 movable under this act shall have power to issue a writ 
 of certiorari to said State court, commanding said State 
 court to make return of the record in any such cause re- 
 moved as aforesaid, or in which any one or more of the 
 plaintiffs or defendants have complied with the pro- 
 visions of this act for the removal of the same, and en- 
 force said writ according to law ; 
 
 And if it shall be impossible for the parties or persons 
 removing any cause under this act, or complying with 
 the provisions for the removal thereof, to obtain such 
 
48 SECTION 7 OP JUDICIARY ACT OF 1875. 
 
 copy, for the reason that the clerk of said State court 
 refuses to furnish a copy, on payment of legal fees, or for 
 any other reason, the circuit court shall make an order 
 requiring the prosecutor in any such action or proceeding 
 to enforce forfeiture or recover penalty as aforesaid, to 
 file a copy of the paper or proceeding by which the same 
 was commenced within such time as the court may deter- 
 mine ; and in default thereof the court shall dismiss the 
 said action or proceeding ; 
 
 But if said order shall be complied with, then said cir- 
 cuit court shall require the other party to plead, and 
 said action or proceeding shall proceed to final judg- 
 ment ; and the said circuit court may make an order re- 
 quiring the parties thereto to plead de no-oo ; and the 
 bond given, conditioned as aforesaid, shall be discharged 
 so far as it requires copy of the record to be filed as 
 aforesaid. 
 
 FILING OF RECORD. 
 
 It has been held that " the failure to file a copy of the record on 
 or before the first day of the succeeding session of the Federal court 
 does not deprive that court of jurisdiction to proceed in the action, 
 and that whether it should do so or not upon tjie filing of such copy 
 is for it to determine." (St. P. & C. R. R. Co. v. McLean, 108 
 TJ. S. 212, 216, fer Harlan, J. ; Railroad Company v. Koontz, 104 
 U. S. 5 ; Bright v. Milwaukee R. R. Qo. 14 Blatchford, 214 ; Win- 
 chell V. Coney, 27 Fed. R. 482 ; Rowell v. Hill, 28 Fed. R. 433 ; 
 McGregor v. McGillis, 30 Fed. R. 388.) 
 
 " Undoubtedly promptness should be insisted on by the courts of 
 the United States, and no excuse should be accepted for delay in 
 entering a record after removal, unless it amounts to a clear justifica- 
 tion or a waiver by the opposite party. It seems to us manifest that 
 if the petitioning party is forced by his adversary to remain in the 
 State court until he can, in a proper way, secure a reversal of the order 
 which keeps him there, the requirement of the law for entering the 
 record in the circuit court at any time before the reversal actually 
 takes place must be deemed to have been waived, and that for all the 
 purposes of procedure in that court the time when the State court 
 lets go its jurisdiction may be taken as the time according to which 
 
SECTION 8 OF JUDICIARY ACT OP 1875. 49 
 
 the docketing of the cause is to take place." (Railroad Co. v. Koontz, 
 104 IT. S. 5, 17, 18, fer Waite, C. J".) 
 
 A deposition on file in the State court is considered a part of the 
 record which must be filed. (Miller v. Tobin, 18 Fed. R. 609.) 
 The pleadings are part of the necessary record. (McBratney 
 V. Usher, 1 Dillon, 367.) 
 
 When the circuit court is held at diEEerent places in the district, 
 the record must be filed in the clerk's office at that place where the 
 suit is originally pending, or in the nearest or most convenient place 
 to that where such a court is held. (Cobb v. Globe Mutual Ins. Co. 
 3 Hughes, 452.) 
 
 It has been held that before the first day of the term next following 
 the removal, either party may upon notice obtain leave to file the 
 record, and that after the record is filed on leave thus obtained, the 
 Federal court has jurisdiction to grant a provisional remedy (Mahoney 
 Mining Co. v. Bennett, 4 Sawyer, 289 ; C. & S. Bank of San Jose 
 V. Corbett, 5 Sawyer, 172) ; but that the cause cannot be heard and 
 determined until after the time specified in the bond has expired. 
 (Matter of B. & M. R. R. Co. 2 McCrary, 216.) 
 
 SECTION 8 OF JUDICIARY ACT OF 187.^. 
 
 Section 8. That when in any suit, commenced in any 
 circuit court of the United States, to enforce any legal 
 or equitable lien upon, or claim to, or to remove any in- 
 cumbrance or lien or cloud upon the title to real or per- 
 sonal property within the district where such suit is 
 brought, one or more of the defendants therein shall not 
 be an inhabitant of, or found within, the said district, or 
 shall not voluntarily appear thereto, it shall be lawful 
 for the court to make an order directing such absent de- 
 fendant or defendants to appear, plead, answer, or demur 
 by a day certain to be designated, which order shall be 
 served on such absent defendant or defendants, if practi- 
 cable, wherever found, and also upon the person or per- 
 sons in possession or charge of said property, if any 
 there be ; 
 
50 SECTION 8 OF JUDICIARY ACT OF 1875. 
 
 Or where sucli personal service upon such absent de- 
 fendant or defendants is not practicable, such order shall 
 be published in such manner as the court may direct not 
 less than once a week for six consecutive weeks ; 
 
 And in case such absent defendant shall not appear, 
 plead, answer, or demur within the time so limited, or 
 within some further time, to be allowed by the court, in 
 its discretion, and upon proof of the service or publica- 
 tion of said order, and of the performance of the direc- 
 tions contained in the same, it shall be lawful for the 
 court to entertain jurisdiction and proceed to the hearing 
 and adjudication of such suit in the same manner as if 
 such absent defendant had been served with process 
 within the said district ; 
 
 But said adjudication shall, as regards said absent de- 
 fendant or defendants without appearance, affect only 
 the property which shall have been the subject of the 
 suit, and under the jurisdiction of the court therein 
 within sxich district ; 
 
 And when a part of the said real or personal property 
 against which' such proceeding shall be taken shall be 
 within another district, but within the same State, said 
 suit may be brought in either district in said State : 
 
 Provided, however. That any defendant or defendants 
 not actually personally notified as above provided may, 
 at any time within one year after final judgment in any 
 suit mentioned in this section, enter his appearance in 
 said suit in said circuit court, and thereupon the said 
 court shall make an order setting aside the judgment 
 therein, and permitting said defendant or defendants to 
 plead thereia on payment by him or them of such costs 
 as the court shall deem best ; and thereupon said suit 
 shall be proceeded with to final judgment according to 
 law. 
 
 SERVICE WITHOUT THE STATE OR BY PUBLICATION. 
 
 The following rulings have been made upon the construction of 
 this and of Section 738 of the Revised Statutes, which preceded it : 
 An absent judgment debtor may thus be served in a suit to 
 
SUBSTITUTED SERVICE. 51 
 
 sequester his assets. (Brigham v. Luddington, 12 Blatchford, 23T. 
 Compare Picquet v. Swan, 5 Mason, 35 ; S. C, 5 Mason, 661.) A 
 claim to a certain number of undesignated shares of stock in a cor- 
 poration chartered within the district is not property there within the 
 meaning of the statute, when the holder of the legal title to the 
 stock is domiciled elsewhere. (Kilgour v. N. 0. Gas-Light Co. 2 
 Woods, 144.) 
 
 Personal service of the order must be made in all cases where the 
 residence of the absent defendant is known or can be ascertained, 
 and seiTice upon him can be made within a reasonable time and by 
 the exercise of reasonable diligence. (Bronson v. Keokuk, 2 Dillon, 
 498.) Service by publication should only be authorized upon proof 
 by affidavit of the facts showing that personal service without the 
 jurisdiction is impracticable (Bronson v. Keokuk, 2 Dillon, 498), or 
 upon the return of the marshal that the defendant cannot be found 
 within the district. (Forsyth v. Pierson, 9 Fed. R. 801, 803.) 
 When the absent defendant resides in another district of the United 
 States, the safer practice is to obtain an order directing the marshal 
 of that district to serve him (Bronson v. Keokuk, 2 Dillon, 498. 
 See Forsyth v. Pierson, 9 Fed. R. 801) ; but an order authorizing 
 such service is, it seems, not indispensable. (Forsyth v. Pierson, 
 9 Fed. R. 801, 803.) 
 
 The day designated for the defendant's appearance need not be 
 one of the regular rule-days of the court. (Forsyth v. Pierson, 9 
 Fed. R. 801, 803.) The time within which a bill of re.view for 
 errors apparent upon the record can be filed to a decree entered in 
 pursuance of the statutory provision does not begin to run till one 
 year after its entry. (Beach v. Mosgrove, 16 Fed. R. 305.) 
 
 SUBSTITUTED SERVICE. 
 
 Apart from the authority conferred by the foregoing statute, the 
 Federal courts of equity have the inherent power to authorize substi- 
 tuted service in certain kinds of ancillary litigation. This power is 
 recognized by the use of the phrase " original process" in the amend- 
 ment to so much of Section 1 of the Act of 1875 as restricts the juris- 
 diction over persons of the Circuit Courts. (Cortes Co. v. Thann- 
 hauser, 9 Fed. R. 226. ) Such service is made by order of the court 
 upon the attorney who has appeared for an absent party in litigation, 
 to which the new suit is ancillary. (P. R. R. of Mo. v. Mo. P. 
 R. R. Co. 3 Fed. R. 772 ; S. C, 1 McCrary, 647.) When service upon 
 
52 SECTION 8 OF JUDICIARY ACT OF 1875. 
 
 tlie attorney is made before any such order has been obtained, it may 
 be set aside. (P. E. E. of Mo. v. Mo. P. R. E. Co. 3 Fed. E. 112 ; 
 S. C, 1 McCrary, 647.) The application for such an order may 
 ordinarily be made ex parte. (Daniell's Ch. Pr. (2d Am. ed.) 503.) 
 It must be supported by an affidavit setting forth the reasons why 
 such service is necessary and verifying the allegations of the bill. 
 (P. R. E. of Mo. V. Mo. P. E. E. Co. 3 Fed. E. 772 ; S. C, 1 
 McCrary, 647 ; DelanCy v. Wallis, 3 Brown's C. C. 12 ; Stephen 
 V. Cini, 4 Vesey, 359 ; Kenworthy v. Accunor, 3 Maddock, 550.) 
 A previous request to the attorney and his refusal to accept such ser- 
 vice are not essential preliminaries to such a motion. (French v. Eoe, 
 13 Vesey, 593.) "It may be proper" for the order authorizing 
 service upon the attorney " to cause an additional and direct notice 
 to be served on the plaintiff in the suit at law personally, if that is 
 feasible." (Blatchford, J., in Cortes Co. v. Thannhauser, 9 Fed. 
 R. 226, 228.) 
 
 Such substituted service will be allowed when a bill is filed to stay 
 proceedings on the common law side of the same court (Cortes Com- 
 pany V. Thannhauser, 9 Fed. R. 226 ; Crellin v. Ely, 13 Fed. E. 
 420 ; Bartlett v. Sultan of Turkey, 19 Fed. E. 346 ; Eead v. Con- 
 sequa, 4 Washington, 174 ; Eckert v. Bauert, 4 Washington, 370 ; 
 Ward V. Seabry, 4 Washington, 426 ; Hitner v. Buckley, 2 Wash- 
 ington, 465) ; when a bill is filed seeking a new trial of an action on 
 the same court. (Oglesby v. Attrill, 12 Fed. E. 227 ; S. C, 14 Fed. 
 E. 214.) But not upon a bill to set aside a sale made under a decree 
 of the same court when persons are joined as defendants who were 
 not parties to the former suit. (P. E. E. of Mo. v. Mo. P. E. E. 
 Co. 3 Fed. E. 772 ; S. C, 1 McCrary, 647 ; S. C, on appeal, 111 
 U. S. 505, 522.) Nor upon a bill by a receiver to set aside papers 
 which are in the hands of an attorney for collection when the absent 
 defendants were not parties to the suit in which the receiver was 
 appointed. (Bo wen v. Christian, 16 Fed. E. 729.) Nor upon a bill 
 of interpleader. (Herndon v. Eidgway, 17 Howard, 424.) Nor 
 upon a cross-bill. (Sawyer v. Gill, 3 W. & M. 97 ; Segee v. Thomas, 
 3 Blatchford, 11 ; Hitner v. Suckley, 2 Washington, 465 ; Eubber 
 Co. V. Goodyear, 9 Wallace, 807 ; Heath v. Erie Eailway Co. 9 
 Blatchford, 316.) The proper practice, when the original complain- 
 ant is absent and refuses to enter his appearance upon a cross-bill, is 
 to procure an order staying his proceedings in the original cause until 
 he answers the cross-bill. (Sawyer v. Gill, 3 W. & M. 97 ; Segee 
 v. Thomas, 3 Blatchford, 11 ; Hitner v. Suckley, 2 Washington, 
 465.) 
 
SECTION 3 OF JUDICIARY ACT OF 1887. 53 
 
 ' SECTION 9 OF JUDICIARY ACT OP 1875. 
 
 Section 9. That whenever either party to a final judg- 
 ment or decree which has been or shall be rendered in 
 any circuit court has died or shall die before the time 
 allowed for taking an appeal or bringing a writ of 
 error has expired, it shall not be necessary to revive the 
 suit by any formal proceedings aforesaid. 
 
 The representative of such deceased party may file in 
 the office of the clerk of such circuit court a duly certi- 
 fied copy of his appointment, and thereupon may enter 
 an appeal or bring writ Of error as the party he repre- 
 sents might have done. 
 
 If the party in whose favor such judgment or decree is 
 rendered has died before appeal taken or writ of error 
 brought, notice to his representatives shall be given from 
 the Supreme Court, as provided in case of the death of 
 the party after appeal taken or writ of error brought. 
 
 SECTION 10 OP JUDICIARY OP 1875. 
 
 Section 10. That all acts and parts of acts in conflict 
 with the provisions of this act are hereby repealed. 
 
 The decisions upon the foregoing Section of the Act of ISYS are 
 cited under the corresponding repealing Section of the Act of 1887, 
 Section 6, infra, page 56. 
 
 SECTION 2 OF JUDICIARY ACT OP 1887. 
 
 Section 2. That whenever in any cause pending in any 
 court of the United States there shall be a receiver or 
 manager in possession of any property, such receiver or 
 
54 SECTION 3 OF JUDICIARY ACT OP 1887. 
 
 manager shall manage and operate such property accord- 
 ing to the requirements of the valid laws of the State in 
 which such property shall be situated, in the same man- 
 nerthe owner or possessor thereof .would be bound to do 
 if in possession thereof. Any receiver or manager who 
 shall wilfully violate the provisions of this section shall 
 be deemed guilty of a misdemeanor, and shall, on convic- 
 tion thereof, be punished by a fine not exceeding three 
 thousand dollars or by imprisonment not exceeding one 
 year, or by both said punishments, in the discretion of 
 the court. 
 
 This section is aimed specially at receivers of railway and telegraph 
 companies. Compare W. U. Tel. Co. v. A. &c. Tel. Co. 7 Bissell, 
 367. 
 
 SECTION 3 OF JUDICIARY ACT OF 1887. 
 
 Section 3. That every receiver or manager of any 
 property appointed by any court of the United States 
 may be sued in respect of any act or transaction of his in 
 carrying on the business connected with such property, 
 without the previous leave of the court in which such re- 
 ceiver or manager was appointed ; but such suit shall be 
 subject to the general equity jurisdiction of the court in 
 which such receiver or manager was appointed, so far as 
 the same shall be necessary to the ends of justice. 
 
 SUITS AGAINST KECEIVERS. 
 
 For the former practice and a description of the abuses which it 
 sanctioned, see Barton v. Barbour, 104 U. S. 126 ; especially the 
 dissenting opinion of Mr. Justice Miller. 
 
 Compare with the last clause of this Section U. S. R. S., Section 
 720 : " The writ of injunction shall not be granted by any court of 
 the United States to stay proceedings in any court of a State, except 
 in cases where such injunction shall be authorized by any law relating 
 to proceedings in bankruptcy ;" and P. & N. Y. S. S. Co. v. Hill 
 Manuf'g Co. 109 U. S. 578, 600. 
 
SECTIONS 4 AND 5 OF JUDICIARr ACT OF 1887. 55 
 
 SECTION 4 OF JUDICIARY ACT OP 1887. 
 
 Section 4. That all national banking associations 
 established under the laws of the United States shall, for 
 the purposes of all actions by or against them, real, per- 
 sonal, or mixed, and all suits in equity, be deemed citi- 
 zens of the States in which they are respectively located ; 
 and in such cases the circuit and district courts shall not 
 have jurisdiction other than such as they would have in 
 cases between individual citizens of the same State. 
 
 The provisions of this section shall not be held to affect 
 the jurisdiction of the courts of the United States in cases 
 commenced by the United States or by direction of any 
 officer thereof, or cases for winding up the affairs of any 
 such bank. 
 
 (See Leather Manufacturers' Bank v. Cooper, 120 TJ. S. 7T8.) 
 
 The location of a national bank must be designated in its certificate 
 of organization. (U. S. R. S. § 5190.) 
 
 Compare with the last clause of this section TJ. S. R. S. , Sections 
 6237 and 5239. 
 
 SECTION 5 OF JUDICIARY ACT OF 1887. 
 
 Section 5. That nothing in this act shall be held, 
 deemed, or construed to repeal or affect any jurisdiction 
 or right mentioned either in sections six hundred and 
 forty-one, or in six hundred and forty-two, or in six hun- 
 dred and forty-three, or in seven hundred and twenty- 
 two, or in title twenty -four of the Revised Statutes of the 
 United States, or mentioned in section eight of the Act 
 of Congress of which this act is an amendment, or in the 
 Act of Congress, approved March first, eighteen hundred 
 and seventy-five, entitled " An act to protect all citizens 
 in their civil or legal rights." 
 
 U. S. R. S., Sections 641, 642, 722, and Title XXIV. apply to 
 persons denied those civil rights which are secured to them by the 
 Fourteenth Amendment. 
 
56 SECTION 6 OP JUDICIARY ACT OP 1887. 
 
 Section 643 regulates removals of civil suits and criminal proceed- 
 ings against revenue officers and their subordinates. 
 
 For the constitutionality of these acts, see Tennessee v. Davis, 
 100 U. S. 257 ; Strauder v. "West Virginia, 100 U. S. 303 ; Virginia 
 v. Rives, 100 TJ. S. 313 ; Civil Rights Cases, 109 U. S. 3 ; Ex parte 
 Yarbrough, 110 U. S. 651 ; United States v. Waddell, 112 11. S. 76. 
 For their construction, see the same cases and Baldwin v. Franks, 
 120 U. S. 678. 
 
 SECTION 6 OF JUDICIARY ACT OF 1887. 
 
 Section 6. That the last paragraph, of section five of the 
 Act of Congress, approved March third, eighteen hundred 
 and seventy-five, entitled ' ' An act to determine the juris- 
 diction of circuit courts of the United States, and to reg- 
 ulate the removal of causes from State courts, and for 
 other purposes," and section six hundred and forty of 
 the Revised Statutes, and all laws and parts of laws in 
 coaflict with the provisions of this act be, and the same 
 are hereby repealed : Provided, That this act shall not 
 affect the jurisdiction over or disposition of any suit re- 
 moved from the court of any State, or suit commenced 
 in any court of the United States, before the passage 
 hereof, except as otherwise expressly provided in this act. 
 
 " In 1875 the subject of removals seems to have been brought to 
 the attention of Congress, and the act of that year passed. Many 
 important new provisions were introduced, and the act was evidently 
 intended as a substitute for much that had been enacted before. ' ' 
 " While repeals by implication are not favored, it is well settled that 
 where two acts are not in all respects repugnant, if the latter act covers 
 the whole subject of the earlier, and embraces new provisions which 
 plainly show that it was intended as a substitute for the first, it will 
 operate as a repeal." (Waite, C. J., m King v. Cornell, 106 TJ. S. 
 395, 396, 397.) Accordingly it was held that the Act of 1875 re- 
 pealed the first two subdivisions of U. S. R. S. , Section 639 (Hyde 
 V. Ruble, 104 TJ. S. 407 ; King v. Cornell, 106 TJ. S. 397 ; Hol- 
 land V. Chambers, 110 TJ. S. 60), but that it did not repeal the third 
 subdivision of that Section, inasmuch as it did not provide for re- 
 movals on account of prejudice or local influence in a State court. 
 
REPEAL OP PREVIOUS STATUTES. 57 
 
 (Bible Society v. Grove, 101 U. S. 610 ; Hess v. Reynolds, 113 
 U. S. 73, 80 ; B. & 0. R. R. v. Bates, 119 U. S. 46V.) As such 
 removals are now regulated by Section 2 of the Act of 1887, the 
 third subdivision of Section 639 may now be considered as repealed. 
 Whether the two succeeding paragraphs of Section 639 are still in 
 force is a matter for subsequent judicial construction. They certainly 
 are except as regards removals for prejudice or local influence. They 
 are as follows : 
 
 ' ' In order to such removal, the petitioner in the cases aforesaid 
 must, at the time of filing his petition therefor, ofEer in said State 
 court good and sufficient surety for his entering in such circuit court, 
 on the first day of its session, copies of said process against him, and 
 of all pleadings, depositions, 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 proceedings 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 farther in the cause against the petitioner, and any 
 bail that shall have been originally taken shall be discharged. 
 
 " When the said copies are entered as aforesaid in the circuit court 
 the cause shall then 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 pur- 
 pose, as the original pleadings would have had by the laws and prac- 
 tice of the courts of such State if the cause had remained in the State 
 court." 
 
 How much of U. S. R. S., Section 629, is repealed by the Acts of 
 1875 and 1887 is still an open question. If the ninth subdivision, 
 giving circuit courts of the United States jurisdiction " of all suits 
 at law or in equity arising under the patent and copyright laws of the 
 United States," is thereby repealed, the value of the patent or copy- 
 rio-ht, or of the damages for its infringement, must exceed $2000 to 
 give the circuit courts jurisdiction of a case affecting it. A further 
 question will then arise for adjudication. Have the State courts 
 jurisdiction over such cases in which the value of the matter in dis- 
 pute is less ? The ground on which the New York courts refused to 
 entertain patent cases was that the Federal statutes had given the 
 Federal courts full jurisdiction over all of them, and had intended 
 that such jurisdiction should be exclusive. (Dudley v. Mayhew, 
 3 N. y. 9 ; Hovey v. Rubber Tip Pencil Co. 57 N. Y. 123.) 
 5 
 
58 SECTION 7 OF JUDICIARY ACT OF 1887. 
 
 This act expressly provides for the remand in certain cases of suits 
 pending at the time of its enactment which had been previously re- 
 moved on account of prejudice or local influence. (Act of 1887, § 1, 
 Sub-Section 2, supra, p. 26.) 
 
 SECTION 7 OF JUDICIARY ACT OF 1887. 
 
 Section 7. That no person related to any Justice or 
 judge of any court Of the United States by affinity or 
 consanguinity, within the degree of first cousin, shall 
 hereafter be appointed by such court or judge to or em- 
 ployed by such court or judge in any office or duty in 
 any court of which such justice or judge may be a 
 member. 
 
 " Consanguinity, or kindred, is defined by the writers on these 
 subjects to be ' vinculum personarum ab eodem stipite descendentium, ' 
 the connection or relation of persons descended from the same stock 
 or common ancestor. This consanguinity is either lineal or col- 
 lateral." (2 Blackstone's Commentaries, 202.) Affinity is " relation 
 by marriage." (1 Blackstone's Commentaries, 434.) 
 
 First cousins are cousins gcrman, the children of an uncle or aunt. 
 (In re barker, 15 Ch. D. 528, 536 ; Stoddart v. Nelson, 6 D. M. & 
 G. 68, 72.) The descendants of first cousins are not included. 
 (Sanderson v. Bayley, 4 My. & Cr. 56.) 
 
 It has been held to be improper for a receiver to employ as counsel 
 a relative who had previously practised elsewhere and who had come 
 into the circuit apparently for the sole purpose of acting as counsel 
 for the receiver. (Blair v. St. L. H. & K. R. Co. 20 Fed. E. 348.) 
 
 ENGLISH PRACTICE. 
 
 It is said of Lord EUenborough, Chief Justice of England, that hear- 
 ing, while riding in Hyde Park, of the death of the Chief Clerk of 
 the King's Bench, he was unwilling to postpone the appointment of a 
 successor, through fear lest he might die before reaching home ; and 
 accordingly dismounted at the nearest house, where he executed a 
 deed, appointing his son to the vacant place. The profits of the office 
 were afterward commuted at £7000 a year. It is said, also, that 
 when this son, the second Lord EUenborough, was afterward asked 
 
ENGLISH PRACTICE. 59 
 
 by a Committee of Parliament, whetlier lie did not think that a 
 reduction of these emoluments might reasonably be made, he an- 
 swered that it was a settled rule of practice to make no reduction in 
 the fees attached to an office without a corresponding reduction of 
 the duties of the incumbent, and that as there were no duties attached 
 to his clerkship, it would be improper to diminish his fees. " (See 
 Campbell's Lives of the Chief Justices, Ch. 51, note.) 
 
 " An incredible amount of jobbery and nepotism is still practised 
 by some of the Judges. They have many good things in their gift, 
 and if one looks through the list of legal officials, one finds a suspicious 
 number of names well known in connection with the profession. 
 Mr. Richard Denman, who died recently, was appointed Clerk of 
 Assize for the Home Circuit many years ago by his father, the Lord 
 Chief Justice, the salary being £1000 a year. I do not know to 
 whom the ofBce fell on Mr. Denman' s death, but his successor is his 
 near relative, Mr. Arthur Denman, who was called to the bar less 
 than six years ago, and who is utterly unknown in his professional 
 capacity. Surely, nobody would attempt to make out that Mr. Den- 
 man was the best possible person to select for so snug a berth. The 
 appointment seems to be a job of the most flagrant kind. " (Lon- 
 don Truth for May 12th, 1887.) 
 
EULES OF PEACTICE 
 
 FOR THE 
 
 COURTS OF EQUITY OF THE UNITED STATES. 
 
 IN FOECE JULY IST, 1887. 
 
 PKELIMTNAKY KEGULATIONS. 
 
 The circuit courts, as courts of equity, shall be deemed 
 always open for the purpose of filing bills, answers, and other 
 pleadings ; for issuing and returning mesne and final process 
 and commissions ; and for making and directing all interlocu- 
 tory motions, orders, rules, and other proceedings, preparatory 
 to hearing of all causes upon their merits. 
 
 2. 
 
 The clerk's office shall be open, and the clerk shall be in 
 attendance therein, on the first Monday of every month, for 
 the purpose of receiving, entering, entertaining, and disposing 
 of all motions, rules, orders, and other proceedings, which are 
 grantable of course and applied for, or had by the parties, or 
 their solicitors, in all causes pending in equity, in pursuance 
 of the rules hereby prescribed. 
 
 Any judge of the circuit court, as well in vacation as in 
 term, may, at chambers, or on the rule-days at the clerk's 
 office, make and direct all sach interlocutory orders, rules, and 
 other proceedings, preparatory to the hearing of all causes 
 upon their merits, in the same manner and with the same 
 effect as the circuit court could make and direct the same 
 in term, reasonable notice of the application therefor being 
 first given to the adverse party, or his solicitor, to appear and 
 show cause to the contrary, at the next rule-day thereafter, 
 unless some other time is assigned by the judge for the hear- 
 ing. 
 
 4. 
 
 All motions, rules, orders, and other proceedings, made 
 and directed at chambers, or on rule-days at the clerk's office, 
 whether special or of course, shall be entered by the clerk in 
 
FEDERAL EQUITY RULES. 61 
 
 an order-book, to be kept at the clerk's office, on tlie day 
 when they are made and directed ; which book shall be open 
 at all office-hours to the free inspection of the parties in any 
 suit in equity, and their solicitors. And, except in cases 
 where personal or other notice is specially required or directed, 
 such entry in the order-book shall be deemed sufficient notice 
 to the parties and their solicitors, without further service 
 thereof, of all orders, rules, acts, notices, and other proceedings 
 entered in such order-book, touching any and all the matters 
 in the suits to and in which they are parties and solicitors. 
 And_ notice to the solicitors shall be deemed notice to the 
 parties for whom they appear and whom they represent, in 
 all cases where personal notice on the parties is not otherwise 
 specially required. Where the solicitors for all the parties in 
 a suit reside in or near the same town or city, the judges of 
 the circuit court . may, by rule, abridge the time for notice of 
 rules, orders, or other proceedings not requiring personal ser- 
 vice on the parties, in their discretion. 
 
 5. 
 
 All motions and applications in the clerk's office for the 
 issuing of mesne process and final process to enforce and exe- 
 cute decrees for filing bills, answers, pleas, demurrers, and 
 other pleadings ; for making amendments to bills and answers ; 
 for taking hills pro confesso ', for filing exceptions ; and for 
 other proceedings in the clerk's office which do not, by the 
 rules hereinafter prescribed, require any allowance or order of 
 the court or of any judge thereof, shall be deemed motions 
 and applications grantable of course by the clerk of the court. 
 But the same may be suspended, or altered, or rescinded by 
 any judge of the court, upon special cause shown. 
 
 All motions for rules or orders and other proceedings, which 
 are not grantable of course or without notice, shall, unless a 
 different time be assigned by a judge of the court, be made on 
 a rule-day, and entered in the order-book, and shall be heard 
 at the rule-day next after that on which the motion is made. 
 And if the adverse party, or his solicitor, shall not then appear, 
 or shall not show good cause against the same, the motion may 
 be heard by any judge of the court ex parte, and granted, as 
 if not objected to, or refused, in his discretion. 
 
 PEOCESS. 
 
 r. 
 
 The process of subpoena shall constitute the proper mesne 
 process in all suits in equity, in the first instance, to require 
 
62 FEDERAL EQUITY RULES. 
 
 the defendant to appear and answer the exigency of the bill ; 
 and, unless otherwise provided in these rules, or specially 
 ordered by the circuit court, a writ of attachment, and, if the 
 defendant cannot be found, a writ of sequestration, or a writ 
 of assistance to enforce a delivery of possession, as the case 
 may require, shall be the proper process to issue for the pur- 
 pose of compelling obedience to any interlocutory or final 
 order or decree of the court. 
 
 S. 
 
 Final process to execute any decree may, if the decree be 
 solely for the payment of money, be by a writ of execution, 
 in the form used in the circuit court in suits at common law 
 in actions of assumpsit. If the decree be for the performance 
 of any specific act, as, for example, for the execution of a con- 
 veyance of land or the delivering up of deeds or other docu- 
 ments, the decree shall, in all cases, prescribe the time within 
 which the act shall be done, of which the defendant shall be 
 bound, without further service, to take notice ; and upon 
 affidavit of the plaintifE, filed in the clerk's office, that the 
 same has not been complied with within the prescribed time, 
 the clerk shall issue a writ of attachment against the delin- 
 quent party, from which, if attached thereon, he shall not be 
 discharged, unless upon a full compliance with the decree and 
 the payment of all costs, or upon a special order of the court, 
 or of a judge thereof, upon motion and affidavit, enlarging 
 the time for the performance thereof. If the delinquent 
 party cannot be found, a writ of sequestration shall issue 
 against his estate upon the return of non est mventus, to com- 
 pel obedience to the decree. 
 
 9. 
 
 When any decree or order is for the delivery of possession, 
 upon proof made by affidavit of a demand and refusal to obey 
 the decree or order, the party prosecuting the same shall be 
 entitled to a writ of assistance from the clerk of the court. 
 
 10. 
 
 Every person, not being a party in any cause, who has ob- 
 tained an order, or in whose favor an order shall have been 
 made, shall be enabled to enforce obedience to such order by 
 the same process as if he were a party to the cause ; and every 
 person, not being a party in any cause, against whom obedi- 
 ence to any order of the court may be enforced, shall be liable 
 to the same process for enforcing obedience to such orders as 
 if he were a party in the cause. 
 
FEDERAL EQUITY RULES. 63 
 
 SERVICE OE PKOCESS. 
 11. 
 
 No process of subpoena shall issue from the clerk's office in 
 any suit in equity until the bill is filed in the office. 
 
 12. 
 
 Whenever a bill is filed, the clerk shall issue the process of 
 subpoena "thereon, as of course, upon the application of the 
 plaintiff, which shall be returnable into the clerk's office the 
 next rule-day, or the next riile-day but one, at the election of 
 the plaintiff, occurring after twenty days from the time of the 
 issuing thereof. At the bottom of the subpoena shall be placed 
 a memorandum, that the defendant is to enter his appearance 
 in the suit in the clerk's office on or before the day at which 
 the writ is returnable ; otherwise, the bill may be taken ^ro 
 confesso. "Where there are more than one defendant, a writ 
 of subpoena may, at the election of the plaintiff, be sued out 
 separately for each defendant, except in the case of husband 
 and wife defendants, or a joint subpoena against all the 
 defendants. 
 
 13. 
 
 The service of all subpoenas shall be by a delivery of a copy 
 thereof by the officer serving the same to the defendant per- 
 sonally, or by leaving a copy thereof at the dwelling-house or 
 usual place of abode of each defendant, with some adult person 
 who is a member or resident in the family. 
 
 .14- 
 
 "Whenever any subpoena shall be returned not executed as 
 to any defendant, the plaintiff shall be entitled to another sub- 
 poena, toties quoties, against such defendant, if he shall require 
 it, until due service is made. 
 
 15. 
 
 The service of all process, mesne and final, shall be by the 
 marshal of the district or his deputy, or by some other person 
 specially appointed by the court for that purpose, and not 
 otherwise. In the latter case, the person serving the process 
 shall make affidavit thereof. 
 
 16. 
 
 Upon the return of the subpoena as served and executed 
 upon any defendant, the clerk shall enter the suit upon his 
 docket as pending in the court, and shall state the time of the 
 entry. 
 
64: FEDERAL EQUITY RULES. 
 
 APPBAEANCE. 
 
 17. 
 
 The appearance-day of the defendant shall be the rule-day 
 to which the subpoena is made returaable, provided he has 
 been served with the process twenty days before that day ; 
 otherwise his appearance-day shall be the next rule-day suc- 
 ceeding the rule-day when the process is returnable. 
 
 The appearance of the defendant, either personally or by 
 his solicitor, shall be entered in the order-book on the day 
 thereof by the clerk. 
 
 BILLS TAKEN PEO CONFESSO. 
 18. 
 
 It shall be the duty of the defendant, unless the time shall 
 be otherwise enlarged, for cause shown, by a judge of the 
 court, upon motion for that purpose, to file his plea, demurrer, 
 or answer to the bill, in the clerk's office, on the rale-day 
 next succeeding that of entering his appearance. In default 
 thereof, the plaintifE may, at his election, enter an order (as 
 of course) in the .order-book, that the bill be taken ^ro con- 
 fesso / and thereupon the cause shall be proceeded in ex 
 parte, and the matter of the bill may be decreed by the court 
 at any time after the expiration of thirty days from and after 
 the entry of said order, if the same can be done without an 
 answer, and is proper to be decreed ; or the plaintiff, if he 
 requires any discovery or answer to enable him to obtain a 
 proper decree, shall be entitled to process of attachment 
 against the defendant to compel an answer, and the defendant 
 shall not when arrested upon such process, be discharged 
 therefrom, unless upon filing his answer, or otherwise comply- 
 ing with such order as the court or a judge thereof may direct, 
 as to pleading to or fully answering the bill, within a period 
 to be fixed by the court or judge, and undertaking to speed 
 the cause. 
 
 19. 
 
 When the bill is taken pro confesso the court may proceed 
 to a decree at any time after the expiration of thirty days 
 from and after the entry of the order to take the hill pro con- 
 fesso, and such decree rendered shall be deemed absolute, 
 unless the court shall, at the same term, set aside the same, or 
 enlarge the time for filing the answer, upon cause shown, 
 upon motion and affidavit of the defendant. And no such 
 motion shall be granted unless upon the payment of the costs 
 of the plaintiff in the suit up to that time, or such part thereof 
 
FEDERAL EQUITY EULES. 65 
 
 as the court shall deem reasonable, and unless the defendant 
 shall undertake to file his answer within such time as the 
 court shall direct, and submit to such other terms as the court 
 shall direct, for the purpose of speeding the cause. 
 
 FEAME OF BILLS. 
 
 20. 
 
 Every bill in the introductory part thereof, shall contain the 
 names, places of abode, and citizenship of all the parties, 
 plaintiffs and defendants, by and against whom the bill is 
 brought. The form, in substance, shall be as follows: " To 
 the judges of the circuit court of the United States for the dis- 
 trict of : A. B., of , and a citizen of the State of 
 
 , brings this his bill against C. D., of , and a citizen 
 
 of the State of , and E. F., of , and a citizen of the 
 
 State of . And thereupon your orator complains and says 
 
 that," &c. 
 
 21. 
 
 The plaintiff, in his bill, shall be at liberty to omit, at his 
 option, the part which is usually called the common confed- 
 eracy clause of the bill, averring a confederacy between the 
 defendants to injure or defraud the plaintiff ; also what is 
 commonly called the charging part of the bill, setting forth 
 the matters or excuses which the defendant is supposed to 
 intend to set up by way of defence to the bill ; also what is 
 commonly called the jurisdiction clause of the bill, that the 
 acts complained of are contrary to equity, and that the defend- 
 ant is without any remedy at law ; and the bill shall not be 
 demurrable therefor. And the plaintiff may, in the narrative 
 or stating part of his bill, state and avoid, by counter-aver- 
 ments, at his option, any matter or thing which he supposes 
 will be insisted upon by the defendant by way of defence or 
 excuse to the case made by the plaintiff for relief. The prayer 
 of the bill shall ask the special relief to which the plaintiff 
 supposes himself entitled, and also shall contain a prayer for 
 general relief ; and if an injunction, or a writ of ne exeat 
 regno, or any other special order, pending the suit, is required, 
 it shall also be specially asked for. 
 
 22. 
 
 If any persons, other than those named as defendants in the 
 bill, shall appear to be necessary or proper parties thereto, the 
 bill shall aver the reason why they are not made parties, by 
 showing them to be without the jurisdiction of the court, or 
 that they cannot be joined without ousting the jurisdiction of 
 
66 FEDERAL EQUITY RULES. 
 
 the court as to the other parties. And as to persons who are 
 without the jurisdiction and may properly be made parties, 
 the bill may pray that process may issue to make them parties 
 to the bill if they should come within the jurisdiction. 
 
 23. 
 
 The prayer for process of subpoena in the bill shall contain 
 the names of all the defendants named in the introductory part 
 of the bill, and if any of them are known to be infants under 
 age, or otherwise under guardianship, shall state the fact, so 
 that the court may take order thereon, as justice may require 
 upon the return of the process. If an injunction, or a writ of 
 ne exeat regno, or any other special order, pending the suit, is 
 asked for in the prayer for relief, that shall be sufficient, with- 
 out repeating the same in the prayer for process. 
 
 24. 
 
 Every bill shall contain the signature of counsel annexed to 
 it, which shall be considered as an affirmation on his part that, 
 upon the instructions given to him and the case laid before 
 him, there is good ground for the suit, in the manner in which 
 it is framed. 
 
 25. 
 
 In order to prevent unnecessary costs and expenses, and to 
 promote brevity, succinctness, and directness in the allegations 
 of bills and answers, the regular taxable costs for every bill 
 and answer shall in no case exceed the sum which is allowed 
 in the State court of chancery in the district, if any there be ; 
 but if there be none, then it shall not exceed the sum of three 
 dollars for every bill or answer. 
 
 SCANDAL AND IMPERTINENCE IN BILLS. 
 
 26. 
 
 Every bill shall be expressed in as brief and succinct terms 
 as it reasonably can be, and shall contain no unnecessary re- 
 citals of deeds, documents, contracts, or other instruments, in 
 h(BG verba, or any other impertinent matter, or any scandalous 
 matter not relevant to the suit. If it does, it may, on excep- 
 tions, be referred to a master, by any judge of the court, for 
 impertinence or scandal ; and if so found by him, the matter 
 shall be expunged at the expense of the plaintiff, and he shall 
 pay to the defendant all his costs in the suit up to that time, 
 unless the court or a judge thereof shall otherwise order. If 
 the master shall report that the bill is not scandalous or imper- 
 tinent, the plaintiff shall be entitled to all costs occasioned by 
 the reference. 
 
FEDERAL EQUITY RULES. 67 
 
 27. 
 
 No order shall be made by any judge for referring any bill, 
 answer, or pleading, or other matter or proceeding, depending 
 before the court, for scandal or impertinence, unless excep- 
 tions are taken in writing and signed by counsel, describing 
 the particular passages which are considered to be scandalous 
 or impertinent ; nor unless the exceptions shall be filed on or 
 before the next rule-day after the process on the bill shall be 
 returnable, or after the answer or pleading is filed. And such 
 order when obtained, shall be considered as abandoned, unless 
 the party obtaining the order shall, without any unnecessary 
 delay, procure the master to examine and report for the same 
 on or before the next succeeding rule-day, or the master shall 
 certify that further time is necessary for him to complete the 
 examination. 
 
 AMENDMENT OF BILLS. 
 28, 
 
 The plaintiff shall be ab liberty, as a matter of course, and 
 without payment of costs, to amend his bill, in any matters 
 whatsoever, before any copy has been taken out of the clerk's 
 ofl5ce, and in any small matters afterward, such as filling blanks, 
 correcting errors of dates, misnomer of parties, misdescription 
 of premises, clerical errors, and generally in matters of form. 
 But if he amend in a material point (as he may do of course) 
 after a copy has been so taken, before any answer or plea or 
 demurrer to the bill, he shall pay to the defendant the costs 
 occasioned thereby, and shall, without delay, furnish him a 
 fair copy thereof, free of expense, with suitable references to 
 the places where the same are to be inserted. And if the 
 amendments are numerous, he shall furnish, in like manner, 
 to the defendant, a copy of the whole bill as amended ; and if 
 there be more than one defendant, a copy shall be furnished 
 to each defendant affected thereby. 
 
 29. 
 
 After an answer, or plea, or demurrer is put in, and before 
 replication, the plaintiff may, upon motion or petition, with- 
 out notice, obtain an order from any judge of the court to 
 amend his bill on or before the next succeeding rule-day, upon 
 payment of costs or without payment of costs, as the court or 
 a judge thereof may in his discretion direct. But after repli- 
 cation filed, the plaintiff shall not be permitted to withdraw it 
 and to amend his bill, except upou a special order of a judge 
 of the court, upon motion or petition, after due notice to the 
 other party, and upon proof by affidavit that the same is not 
 
68 FEDERAL EQUITY RULES. 
 
 made for the purpose of vexation or delay, or that the matter 
 of the proposed amendment is material, and could not with 
 reasonable diligence have been sooner introduced into the bill, 
 and upon the plaintiff's submitting to such other terms as may- 
 be imposed by the judge for speeding the cause. 
 
 30. 
 
 If the plaintiff so obtaining any order to amend his bill after 
 answer, or plea, or demurrer, or after replication, shall not lile 
 his amendments or amended bill, as the case may require, in 
 the clerk's office on or before the next succeeding rule-day, he 
 shall be considered to have abandoned the same, and the cause 
 shall proceed as if no application for any amendment had been 
 made. 
 
 DEMUEEEES AND PLEAS. 
 
 31. 
 
 No demurrer or plea shall be allowed to be filed to any bill, 
 unless upon a certificate of counsel, that in his opinion it is 
 well founded in point of law, and supported by the affidavit 
 of the defendant ; that it is not interposed for delay ; and, if 
 a plea, that it is true in point of fact. 
 
 32. 
 
 The defendant may at any time before the bill is taken for 
 confessed, or afterward with the leave of the court, demur or 
 plead to the whole bill, or to part of it, and he may demur to 
 part, plead to part, and answer as to the residue ; but in every 
 case in which the bill specially charges fraud or combination, 
 a plea to such part must be accompanied with an answer forti- 
 fying the plea and explicitly denying the fraud and combina- 
 tion, and the facts on which the charge is founded. 
 
 33. 
 
 The plaintiff may set down the demurrer or plea to be 
 argued, or he may take issue on the plea. If, upon an issue, 
 the facts stated in the plea be determined for the defendant, 
 they shall avail him as far as in law and equity they ought to 
 avail him. 
 
 34. 
 
 If, upon the hearing, any demurrer or plea is overruled, 
 the plaintiff shall be entitled to his costs in the cause up to 
 that period, unless the court shall be satisfied that the defend- 
 ant has good ground, in point of law or fact, to interpose the 
 same, and it was not interposed vexatiously or for delay. And, 
 
FEDERAL EQUITY RULES. 69 
 
 upon the overruling of any plea or demurrer, the defendant 
 shall be assigned to answer the bill, or so much thereof as is 
 covered by the plea or demin-rer, the next succeeding rule- 
 day, or at such other period as, consistently with justice and 
 the rights of the defendant, the same can, in the judgment of 
 the court, be reasonably done ; in default whereof, the bill 
 shall be taken against him^z-o confesso, and the matter thereof 
 proceeded in and decreed accordingly. 
 
 35. 
 
 If, upon the hearing, any demurrer or plea shall be allowed, 
 the defendant shall be entitled to his costs. But the court 
 may, in its discretion, upon motion of the plaintiff, allow him 
 to amend his biU, upon such terms as it shall deem reasonable. 
 
 36. ! 
 
 No demurrer or plea shall be held bad and overruled upon 
 argument, only because such demurrer or plea shall not cover 
 so much of the bill as it might by law have extended to. 
 
 37. 
 
 No demurrer or plea shall be held bad and overruled upon 
 argument, only because the answer of the defendant may ex- 
 tend to some part of the same matter as may be covered by 
 such demurrer or plea. 
 
 3§. 
 
 If the plaintiff shall not reply to any plea, or set down any 
 plea or demurrer for argument on the rule-day when the same 
 is filed, or on the next succeeding rule-day, he shall be deemed 
 to admit the truth and sufficiency thereof, and his bill shall be 
 dismissed as of course, unless a judge of the court shall allow 
 him further time for the purpose. 
 
 ANSWERS AND DISCOVEEY. 
 
 39. 
 
 The rule, that if a defendant submits to answer he shall 
 answer fully to all the matters of the bill, shall no longer apply 
 in cases where he might by plea protect himself from such 
 answer and discovery. And the defendant shall be entitled 
 in all cases by answer to insist upon all matters of defence (not 
 being matter's of abatement, or to the character of the parties, 
 or matters of form) in bar of or to the merits of the bill, of 
 which he may be entitled to avail himself by a plea in bar ; 
 and in such answer he shall not be compellable to answer any 
 other matters than he would be compellable to answer and dis- 
 
70 FEDERAL EQUITY RULES. 
 
 cover upon filing a plea in bar and an answer in support of 
 such plea, touching the matters set forth in the bill, to avoid 
 or repel the bar or defence. Thus, for example, a ionafide 
 purchaser, for a valuable consideration without notice, may 
 set up that defence by way of answer instead of plea, and shall 
 be entitled to the same protection, and shall not be compellable 
 to make any further answer or discovery of his title than he 
 would be in any answer in support of such plea. 
 
 40. 
 
 A defendant shall not be bound to answer any statement or 
 charge in the bill, unless specially and particularly interrogated 
 thereto ; and a defendant shall not be bound to answer any in- 
 terrogatory in the bill, except those interrogatories which such 
 defendant is required to answer ; and where a defendant shall 
 answer any statement or charge in the bill to which he is not 
 interrogated, only by stating his ignorance of the matter so 
 stated or charged, such answer shall be deemed impertinent. 
 
 December Teem, 1850. 
 
 Ordered, That the fortieth rule, heretofore adopted and 
 promulgated by this court as one of the rules of practice in 
 suits in equity in the circuit courts, be, and the same is hereby, 
 repealed and annulled. And it shall not hereafter be neces- 
 sary to interrogate a defendant specially and particularly upon 
 any statement in the bill, unless the complainant desires to do 
 so, to obtain a discovery. 
 
 41. 
 
 The interrogatories contained in the interrogating part of 
 the bill shall be divided as conveniently as may be from each 
 other, and numbered consecutively 1, 2, 3, &c. ; and the in- 
 terrogatories which each defendant is required to answer shall 
 be specified in a note at the foot of the bill, in the form or to 
 the effect following, that is to say : " The defendant (A. B.) 
 is required to answer the interrogatories numbered respectively 
 1, 2, 3," &c. ; and the office copy of the bill taken by each 
 defendant shall not contain any interrogatories except those 
 which such defendant is so required to answer, unless such 
 defendant shall require to be furnished with a copy of the 
 whole bill, 
 
 December Teem, 1871. 
 
 Amendment to 41st Equity Rule. 
 
 If the complainant, in his bill, shall waive an answer under 
 oath, or shall only require an answer under oath with regard 
 
FEDERAL EQUITY RULES. 71 
 
 to certain specified interrogatories, the answer of the defend- 
 ant, though under oath, except such part thereof as shall be 
 directly responsive to such interrogatories, shall not be evi- 
 dence in his favor, unless the cause be set down for hearing 
 on bill and answer only ; but may nevertheless be used as an 
 affidavit, with the same effect as heretofore, on a motion to 
 grant or dissolve an injunction, or on any other incidental 
 motion in the cause ; but this shall not prevent a defendant 
 from becoming a witness in his own behalf under section 3 of 
 the act of Congress of July 2, 186i. 
 
 42. 
 
 The note at the foot of the bill, specifying the interrogatories 
 which each defendant is required to answer, shall be considered 
 and treated as part of the bill, and the addition of any sach 
 note to the bill, or any alteration in or addition to such note, 
 after the bill is filed, shall be considered and treated as an 
 amendment of the bill. 
 
 43. 
 
 Instead of the words of the bill now in use, preceding the 
 interrogating part thereof, and beginning with the words " To 
 the end therefore," there shall hereafter be used words in the 
 form or to the effect following : " To the end, therefore, that 
 the said defendants may, if they can, show why your orator 
 should not have the relief hereby prayed, and may, upon their 
 several and respective corporal oaths, and according to the 
 best and utmost of their several and respective knowledge, 
 remembrance, information, and belief, full, true, direct, and 
 perfect answer make to such of the several interrogatories 
 hereinafter numbered and set forth, as by the note herennder 
 written they are respectively required to answer ; that is to 
 say — 
 
 ■"1. Whether, &c. 
 
 "2. Whether, &c." 
 
 44. 
 
 A defendant shall be at liberty, by answer, to decline 
 answering any interrogatory, or part of an interrogatory, from 
 answering which he might have protected himself by de- 
 murrer ; and he shall be at liberty so to decline, notwithstand- 
 ing he shall answer other parts of the bill from which he 
 might have protected himself by demurrer. 
 
 45. 
 
 No special replication to any answer shall be filed. But if 
 any matter alleged in the answer shall make it necessary for 
 the plaintifE to amend his bill, he may have leave to amend 
 
73 FEDERAL EQUITY RULES. 
 
 the same with or without the payment of costs, as the court, 
 or a judge thereof, may in his discretion direct. 
 
 46. 
 
 In every case where an amendment shall be made after 
 answer filed, the defendant shall put in a new or supplemental 
 answer on or before the next succeeding rule-day after that on 
 which the amendment or amended bill is filed, unless the time 
 is enlarged or otherwise ordered by a judge of the court ; and 
 upon his default, the like proceedings may be had as in cases 
 of an omission to put in an answer. 
 
 PAETIES. • 
 
 47. 
 
 In all cases where it shall appear to the court that persons 
 who might otherwise be deemed necessary or proper parties 
 to the suit, cannot be made parties by reason of their being 
 out of the jurisdiction of the court, or incapable otherwise of 
 being made parties, or because their joinder would oust the 
 jurisdiction of the court as to the parties before the court, the 
 court may in their discretion proceed in the cause without 
 making such persons parties ; and in such cases the decree 
 shall be without prejudice to the rights of the absent parties. 
 
 48. 
 
 Where the parties on either side are very numerous, and 
 cannot, without manifest inconvenience and oppressive delays 
 in the suit, be all brought before it, the court in its discretion 
 may dispense with making all of them parties, and may pro- 
 ceed in the suit, having sufficient parties before it to represent 
 all the adverse interests of the plaintiffs and the defendants in 
 the suit properly before it. But, in such cases, the decree 
 shall be without prejudice to the rights and claims of all the 
 absent parties. 
 
 49. 
 
 In all suits concerning real estate which is vested in trustees 
 by devise, and such trustees are competent to sell and give 
 discharges for the proceeds of the sale, and for the rents and 
 profits of the estate, such trustees shall represent the persons 
 beneficially interested in the estate, or the proceeds, or the 
 rents and profits, in the same manner and to the same extent 
 as the executors or administrators in suits concerning personal 
 estate represent the persons beneficially interested in such per- 
 sonal estate ; and in such cases it shall not be necessary to 
 make the persons beneficially interested in such real estate, or 
 
FEDERAL EQUITY RULES. 73 
 
 rents and profits, parties to the suit ; but the court may, upon 
 consideration of the matter on the hearing, if it shall so think 
 fit, order such persons to be made parties. 
 
 50. 
 
 In suits to execute the trusts of a will, it shall not be neces- 
 sary to make the heir at law a party ; but the plaintifiEs shall 
 be at liberty to make the heir at law a party where he desires 
 to have the will established against him. 
 
 51. 
 
 In all cases in which the plaintiff has a joint and several 
 demand against several persons, either as principals or sureties, 
 it shall not be necessary to bring before the court as parties to 
 a suit concerning such demand, all the persons liable thereto ; 
 but the plaintiff may proceed against one or more of the per- 
 sons severally liable. 
 
 52. 
 
 _ Where the defendant shall, by his answer, suggest that the 
 bill is defective for want of parties, the plaintiff shall be at 
 liberty, within fourteen days after answer filed, to set down 
 the cause for argument upon that objection only ; and the 
 purpose for which the same is so set down shall be notified by 
 an entry, to be made in the clerk's order-book, in the form or 
 to the effect following, (that is to say :) " Set down upon the 
 defendant's objection for want of parties." And where the 
 plaintiff shall not so set down his cause, but shall proceed 
 therewith to a hearing, notwithstanding an objection for want 
 of parties taken by the answer, he shall not, at the hearing of 
 the cause, if the defendant's objection shall then be allowed, 
 be entitled as of course to an order for liberty to amend his 
 bill by adding parties. But the court, if it thinks fit, shall be 
 at liberty to dismiss the bill. 
 
 53. 
 
 If a defendant shall, at the hearing of a cause, object that a 
 suit is defective for want of parties not having by plea or 
 answer taken the objection, and therein specified by name or 
 description the parties to whom the objection applies, the 
 court (if it shall think fit) shall be at liberty to make a decree 
 saving the rights of the absent parties. 
 
 54. 
 
 Where no account, payment, conveyance, or other direct 
 relief is sought against a party to a suit, not being an infant, 
 the party, upon service of the subpoena upon him, need not 
 6 
 
Hi FEDERAL EQUITY RULES. 
 
 appear and answer the bill, unless the plaintifE specially re- 
 quires him so to do by the prayer of his bill ; but he may 
 appear and answer at his option ; and if he does not appear 
 and answer he shall be bound by all the proceedings in the 
 cause. If the plaintifE shall require him to appear and answer 
 he shall be entitled to the costs of all the proceedings against 
 him, unless the court shall otherwise direct. 
 
 INJUNCTIONS. 
 
 55. 
 
 Whenever an injunction is asked for by the bill to stay pro- 
 ceedings at law, if the defendant do not enter his appearance, 
 and plead, demur, or answer to the same within the time pre- 
 scribed therefor by these rules, the plaintifE shall be entitled 
 as of course, upon motion, without notice, to such injunction. 
 But special injunctions shall be grantable only upon due notice 
 to the other party by the court in term, or by a judge thereof 
 in vacation, after a hearing, which may be ex parte, if the 
 adverse party does not appear at the time and place ordered. 
 Ill every case where an injunction — either the common injunc- 
 tion or a special injunction — is awarded in vacation, it shall, 
 unless previously dissolved by the judge granting the same, 
 continue until the next term of the court, or until it is dis- 
 solved by some other order of the court. 
 
 BILLS OF EEVIVOE AND SUPPLEMENTAL BILLS. 
 
 56. 
 
 Whenever a suit in equity shall become abated by the death 
 of either party, or by any other event, the same may be re- 
 vived by a bill of revivor, or a bill in the nature of a bill of 
 revivor, as the circumstances of the case may require, filed by 
 the proper parties, entitled to revive the same ; which bill 
 may be filed in the clerk's office at any time ; and, upon sug- ' 
 gestion of the facts, the proper process of subpoena shall, as 
 of course, be issued by the clerk, requiring the proper repre- 
 sentatives of the other party to appear and show cause, if any 
 they have, why the cause should not be revived. And if no 
 cause shall be shown at the next rule-day which shall occur 
 after fourteen days from the time of the service of the same 
 process, the suit shall stand revived, as of course. 
 
 57. 
 
 Whenever any suit in equity shall become defective from 
 any event happening after the fihng of the bill, (as, for ex- 
 
FEDERAL EQUITY RULES. 75 
 
 ample, bj change of interest in the parties,) or for any other 
 reason a supplemental bill, or a bill in the nature of a supple- 
 mental bill, may be necessary to be tiled in the cause, leave 
 to file the same may be granted by any judge of the court on 
 any rule-day, upon proper cause shown, and due notice to the 
 other party. And if leave is granted to file such supplemental 
 bill, the defendant shall demur, plead, or answer thereto, on 
 the next succeeding rule-day after the supplemental bill is filed 
 in the clerk's office, unless some other time shall be assigned 
 by a judge of the court. 
 
 It shall not be necessary in any bill of revivor or supple- 
 mental bill to set forth any of the statements in the original 
 suit, unless the special circumstances of the case may require 
 it. 
 
 VEEIFICATIOK OF ANSWERS. 
 
 59, 
 
 Every defendant may swear to his answer before any justice 
 or judge of any court of the United States, or before any com- 
 missioner appointed by any circuit court to take testimony or 
 depositions, or before any master in chancery appointed by 
 any circuit court, or before any judge of any court of a State 
 or Territory. 
 
 AMENDMENT OF ANSWERS. 
 
 60. 
 
 After an answer is put in, it may be amended, as of course, 
 in any matter of form, or by filling up a blank, or correcting 
 a date, or reference to a document, or other small matter and 
 be resworn, at any time before a replication is put in, or the 
 cause is set down for a hearing upon bill and answer. But 
 after replication, or such setting down for a hearing, it shall 
 not be amended in any material matters, as by adding new 
 facts or defences, or qualifying or altering the original state- 
 ments, except by special leave of the court, or of a judge 
 thereof, upon motion and cause shown, after due notice to the 
 adverse party, supported, if required, by afiidavit ; and in 
 every case where leave is so granted, the court or the judge 
 granting the same may, in his discretion, require that the same 
 be separately engrossed, and added as a distinct amendment to 
 the original answer, so as to be distinguishable therefrom. 
 
 EXCEPTIONS TO ANSWERS. 
 
 61. 
 
 After an answer is filed on any rule-day, the plaintiff shall 
 be allowed until the next succeeding rule-day to file in the 
 
76 FEDERAL EQUITY EULES. 
 
 clerk's ofBce exceptions thereto for insufiBciency, and no 
 longer, unless a longer time shall be allowed for the purpose, 
 upon cause shown to the court, or a judge thereof ; and, if no 
 exception shall be filed thereto within that period, the answer 
 shall be deemed and taken to be sufiBcient. 
 
 68. 
 
 When the same solicitor is employed for two or more de- 
 fendants, and separate answers shall be filed, or other proceed- 
 ings had, by two or more of the defendants separately, costs 
 shall not be allowed for such separate answers, or other pro- 
 ceedings, unless a master, upon reference to him, shall certify 
 that such separate answers and other proceedings were neces- 
 sary or proper, and ought not to have been joined together. 
 
 63. 
 
 Where exceptions shall be filed to the answer for insutfi- 
 ciency, within the period prescribed by these rules, if the de- 
 fendant shall not submit to the same and file an amended 
 answer on the next succeeding rule-day, the plaintiff shall 
 forthwith set them down for a hearing on the next succeeding 
 rule-day thereafter, before a judge of the court, and shall 
 enter, as of coiirse, in the order-book, an order for that pur- 
 pose ; and if he shall not so set down the same for a hearing, 
 the exceptions shall be deemed abandoned, and the answer 
 shall be deemed sufficient ; provided, however, that the court, 
 or any judge thereof, may, for good cause shown, enlarge the 
 time for filing exceptions, or for answering the same, in his 
 discretion, upon such terms as he may deem reasonable. 
 
 64. 
 
 If, at the hearing, the exceptions shall be allowed, the de- 
 fendant shall be bound to put in a full and complete answer 
 thereto on the next succeeding rule-day ; otherwise the plain- 
 tiff shall, as of course, be entitled to take the bill, so far as 
 the matter of such exceptions is concerned, as confessed, or, 
 at his election, he may have a writ of attachment to compel 
 the defendant to make a better answer to the matter of the 
 exceptions ; and the defendant, when he is in custody upon 
 such writ, shall not be discharged therefrom but by an order 
 of the court, or of a judge thereof, upon his putting in such 
 answer, and complying with such other terms as the court or 
 judge may direct. 
 
 63. 
 
 If, upon argument, the plaintiff's exceptions to the answer 
 shall be overruled, or the answer shall be adjudged insuffi- 
 cient, the prevailing party shall be entitled to all the costs 
 
FEDERAL EQUITY RULES. 77 
 
 occasioned thereby, unless otherwise directed by the court, or 
 the judge thereof, at the hearing upon the exceptions. 
 
 EEPLICATION AJTD ISSUE. 
 
 66. 
 
 Whenever the answer of the defendant shall not be excepted 
 to, or shall be adjudged or deemed sufficient, the plaintiff 
 shall file the general replication thereto on or before the next 
 succeeding rule-day thereafter ; and in all cases where the 
 general replication is filed, the cause shall be deemed, to all 
 intents and purposes, at issue, without any rejoinder or other 
 pleading on either side. If the plaintiff shall omit or refuse 
 to file such replication within the prescribed period, the de- 
 fendant shall be entitled to an order, as of course, for a dis- 
 missal of the suit ; and the suit shall thereupon stand dis- 
 missed, unless the court, or a judge thereof, shall, upon 
 motion, for cause shown, allow a replication to be filed nuno 
 pro tunc, the plaintiff submitting to speed the cause, and to 
 such other terms as may be directed. 
 
 TESTIMONY AND DEPOSITIONS. 
 
 67. 
 
 After the cause is at issue, commissions to take testimony 
 may be taken out in vacation as well as in term, jointly by 
 both parties, or severally by either party, upon interrogatories 
 filed by the party taking out the same in the clerk's office, ten 
 days' notice thereof being given to the adverse party to file 
 cross-interrogatories before tlie issuing of the commission ; 
 and if no cross-interrogatories are filed at the expiration of the 
 time, the commission may issue ex parte. In all cases, the 
 commissioner or commissioners shall be named by the court, 
 or by a judge thereof. If the parties shall so agree, the testi- 
 mony may be taken upon oral interrogatories by the parties or 
 their agents, without filing any written interrogatories. 
 
 December Teem, 1854. 
 
 Ordered, That the sixty-seventh rule governing equity prac- 
 tice be so amended as to allow the presiding judge of any 
 court exercising jurisdiction, either in term time or in vaca- 
 tion, to vest in 'the clerk of said court general power to name 
 commissioners to take testimony in like manner that the court 
 or judge thereof can now do by the said sixty -seventh rule. 
 
'j's federal equity rules. 
 
 Decembee Teem, 1861. 
 
 Ordered^ That the last paragraph in the sixty-seventh rule 
 in equity be repealed, and the rule be amended as follows : 
 Either party may give notice to the other that he desires the 
 evidence to be adduced in the cause to be taken orally, and 
 thereupon all the veitnesses to be examined shall be examined 
 before one of the examiners of the court, or before an ex- 
 aminer to be specially appointed by the court, the examiner to 
 be furnished with a copy of the bill and answer, if any ; and such 
 examination shall take place in the presence of the parties or 
 their agents, by their counsel or solicitors, and the witnesses 
 shall be subject to cross-examination and re-examination, and 
 which shall be conducted as near as may be in the mode now 
 used in common-law courts. The depositions taken upon such 
 oral examinations shall be taken down in writing by the exam- 
 iner in the form of narrative, unless he determines the exam- 
 ination shall be by question and answer in special instances ; 
 and, when completed, shall be read over to the witness and 
 signed by him in the presence of the parties or counsel, or 
 such of them as may attend ; provided, if the witness shall 
 refuse to sign the said deposition, then the examiner shall sign 
 the same ; and the examiner may, upon all examinations, 
 state any special matters to the court as he shall think fit ; 
 and any question or questions which may be objected to shall 
 be noted by the examiner upon the deposition, but he shall 
 not have power to decide on the competency, materiality, or 
 relevancy of the questions ; and the court shall have power to 
 deal with the costs of incompetent, -immaterial, or irrelevant 
 depositions, or parts of them, as may be just. 
 
 In case of refusal of witnesses to attend, to be sworn, or to 
 answer any question put by the examiner, or by counsel or 
 solicitor, the same practice shall be adopted as is now practised 
 with respect to witnesses to be produced on examination before 
 an examiner of said court on written interrogatories. 
 
 Notice shall be given by the respective counsel or solicitors, 
 to the opposite counsel or solicitors, or parties, of the time 
 and place of the examination, for such reasonable time as the 
 examiner may fix by order in each cause. 
 
 When the examination of witnesses before the examiner is 
 concluded, the original deposition, authenticated by the signa- 
 ture of the examiner, shall be transmitted by him to the clerk 
 of the court, to be there filed of record, in the same mode as 
 prescribed in the thirtieth section of act of Congress, Septem- 
 ber 24, 1789. 
 
 Testimony may be taken on commission in the usual way, 
 by written interrogatories and cross-interrogatories, on motion 
 to the court in term time, or to a judge in vacation, for special 
 reasons satisfactory to the court or judge. 
 
FEDERAL EQUITY RULES. 79 
 
 December Teem, 1869. 
 
 Amendment to ^Ith Rule. 
 
 Where the eddence to be adduced in a cause is to be taken 
 orally, as provided in the order passed at the December term, 
 1861, amending the 6Yth General Eule, the court may, on 
 motion of either party, assign a time within which the com- 
 plainant shall take his evidence in support of the bill, and a 
 time thereafter within which the defendant shall take his evi- 
 dence in defence, and a time thereafter within which the com- 
 plainant shall take his evidence in reply ; and no further evi- 
 dence shall be taken in the cause, unless by agreement of the 
 parties, or by leave of court first obtained, on motion, for 
 cause shown. 
 
 68. 
 
 Testimony may also be taken in the cause, after it is at 
 issue, by deposition, according to the acts of Congress. But 
 in such case, if no notice is given to the adverse party of the 
 time and place of taking the deposition, he shall, upon motion 
 and affidavit of the fact, be entitled to a cross-examination of 
 the witness, either under a commission or by a new deposition 
 taken under the act of Congress, if a court or a judge thereof 
 shall, under all the circumstances, deem it reasonable. 
 
 69. 
 
 Three months, and no more, shall be allowed for the taking 
 of testimony after the cause is at issue, unless the court, or a 
 judge thereof, shall, upon special cause shown by either party, 
 enlarge the time ; and no testimony taken after such period 
 shall be allowed to be read in evidence at the hearing. Im- 
 mediately upon the return of the commissions and depositions 
 containing the testimony into the clerk's office, publication 
 thereof may be ordered in the clerk's office, by any judge of 
 the court, upon due notice to the parties, or it may be en- 
 larged, as he may deem reasonable under all the circumstances ; 
 but, by consent of the parties, publication of the testimony 
 may at any time pass into the clerk's office, such consent being 
 in writing, and a copy thereof entered in the order-books, or 
 indorsed upon the deposition or testimony. 
 
 70. 
 
 After any bill filed and before the defendant hath answered 
 the same, upon affidavit made that any of the plaintiff's wit- 
 nesses are aged and infirm, or going out of the country, or 
 that any one of them is a single witness to a material fact, the 
 clerk of the court shall, as of course, upon the application of 
 
80 FEDERAL EQUITY RULES. 
 
 the plaintiff, issue a commission to sucli commissioner or com- 
 missioners as a judge of the court may direct, to take the ex- 
 amination of such witness or witnesses de hene esse, upon 
 giving due notice to the adverse party of the time and place 
 of taking his testimony. 
 
 71. 
 
 The last interrogatory in the written interrogatories to take 
 testimony now commonly in use shall in the future be altered, 
 and stated in substance thus : " Do you know, or can you set 
 forth, any other matter or thing which may be a benefit or 
 advantage to the parties at issue in this cause, or either of 
 them, or that may be material to the subject of this your ex- 
 amination, or the" matters in question in this cause ? If yea, 
 set forth the same fully and at large in your answer." 
 
 CKOSS-BILLS. 
 
 72. 
 
 Where a defendant in equity files a cross-bill for discovery 
 only against the plaintiff in the original bill, the defendant to 
 the original bill shall first answer thereto before the original 
 plaintiff shall be compellable to answer the cross-bill. The 
 answer of the original plaintiff to such cross-bill may be read 
 and used by the party filing the cross-bill at the hearing, in 
 the same manner and under the same restrictions as the answer 
 praying relief may now be read and iised. 
 
 EEFEEENCE TO AND PEOCEEDINGS BEFOEE MASTEES. 
 
 73. 
 
 Every decree for an account of the personal estate of a tes- 
 tator or intestate shall contain a direction to the master to 
 whom it is referred to take the same to inquire and state to 
 the court what parts, if any, of such personal estate are out- 
 standing or undisposed of, unless the court shall otherwise 
 direct. 
 
 74. 
 
 Whenever any reference of any matter is made to a master 
 to examine and report thereon, the party at whose instance or 
 for whose benefit the reference is made shall cause the same 
 to be presented to the master for a hearing on or before the 
 next rule-day succeeding the time when the reference was 
 made ; if he shall omit to do so, the adverse party shall be at 
 liberty forthwith to cause proceedings to be had before the 
 master, at the costs of the party procuring the reference. 
 
FEDERAL EQUITY RULES. 81 
 
 75. 
 
 Upon every sueli reference, it shall be the duty of the 
 master, as soon as he reasonably can after the same is brought 
 before him, to assign a time and place for proceedings in the 
 same, and to give due notice thereof to each of the parties, or 
 their solicitoi-s ; and if eitlier party shall fail to appear at the 
 time and place appointed, the master shall be at liberty to pro- 
 ceed ex parte, or, in his discretion, to adjourn the examination 
 and proceedings to a future day, giving notice to the absent 
 party or his solicitor of such adjournment ; and it shall be the 
 duty o£ the master to proceed with all reasonable diligence in 
 every such reference, and with the least practicable delay, and 
 either party shall be at liberty to apply to the court, or a judge 
 thereof, for an order to the master to speed the proceedings, 
 and to make his report, and to certify to the court or judge 
 the reasons for any delay. 
 
 T6. 
 
 In the reports made by the master to the court, no part of 
 any state of facts, charge, afHdavit, deposition, examination, 
 or answer brought in or used before them shall be stated or 
 recited. But such state of facts, charge, affidavit, deposition, 
 examination, or answer shall be identified, specified, and re- 
 ferred to, so as to inform the court what state of facts, charge, 
 affidavit, deposition, examination, or answer were so brought 
 in or used. 
 
 77. 
 
 The master shall regulate all the proceedings in every hear- 
 ing before him, upon every such reference ; and he shall have 
 full authority to examine the parties in the cause, upon oath, 
 touching all matters contained in the reference ; and also to 
 require the production of all books, papers, writings, vouchers, 
 and other documents applicable thereto ; and also to examine 
 on oath, viva voce, all witnesses produced by the parties before 
 him, and to order the examination of other witnesses to be 
 taken, under a commission to be issued upon his certificate 
 from the clerk's office or by deposition, according to the acts 
 of Congress, or otherwise, as hereinafter provided ; and also 
 to direct the mode in which the matters requiring evidence 
 shall be proved before him ; and generally to do all other acts, 
 and direct all other inquiries and proceedings in the matters 
 before him, which he may deem necessary and proper to the 
 justice and merits thereof and the rights of the parties. 
 
 7§. 
 
 Witnesses who live within the district may, upon due notice 
 to the opposite party, be summoned to appear before the com- 
 
82 FEDERAL EQUITY RULES. 
 
 missioner appointed to take testimony, or before a master or 
 examiner appointed in any cause, by subpoena in the usual 
 form, which may be issued by the clerk in blank, and tilled 
 up by the party praying the same, or by the commissioner, 
 master, or examiner, requiring the attendance of the witnesses 
 at the time and place speciiied, who shall be allowed for at- 
 tendance the same compensation as for attendance in court ; 
 and if any witness shall refuse to appear or give evidence, it 
 shall be deemed a contempt of the court, which being certified 
 to the clerk's office by the commissioner, master, or examiner, 
 an attachment may issue thereupon by order of the court or 
 of any judge thereof, in the same manner as if the contempt 
 were for not attending, or for refusing to give testimony in 
 the court. But nothing herein contained shall prevent the 
 examination of witnesses viva vooe when produced in open 
 court, if the court shall, in its discretion, deem it advisable. 
 
 79. 
 
 All parties accounting before a master shall bring in their 
 respective accounts in the form of debtor and creditor ; and 
 any of the other parties who shall not be satisfied with the 
 accounts so brought in shall be at liberty to examine the 
 accounting party viva voce, or upon interrogatories, in the 
 master's office, or by deposition, as the master shall direct. 
 
 80. 
 
 All affidavits, depositions, and documents which have been 
 previously made, read, or used in the court, upon any proceed- 
 ing in any cause or matter, may be used before the master. 
 
 §1. 
 
 The master shall be at liberty to examine any creditor or 
 other person coming in to claim before him, either upon 
 written interrogatories or viva voce, or in both modes, as the 
 nature of the case may appear to him to require. The evi- 
 dence upon such examinations shall be -taken down by the 
 master, or by some other person by his order and in his pres- 
 ence, if either party requires it, in order that the same may be 
 used by the court, if necessary. 
 
 82. 
 
 The circuit courts may appoint standing juasters in chancery 
 in their respective districts, both the judges concurring in the 
 appointment ; and they may also appoint a ma.stev pro Aao 
 vice in any particular case. The compensation to be allowed 
 to every master in chancery for his services in any particular 
 
FEDERAL EQUITY RULES. 83 
 
 case shall be fixed by the circuit court, in its discretion, having 
 regard to all the circumstances thereof, and the compensation 
 shall be charged upon and borne by such of the parties in the 
 cause as the court shall direct. The master shall not retain 
 his report as security for his compensation ; but, when the 
 compensation is allowed by the court, he shall be entitled to 
 an attachment for the amount against the party who is ordered 
 to pay the same, if, upon notice thereof, he' does not pay it 
 within the time prescribed by the court. 
 
 masters' eepoets. 
 §3. 
 
 The master, as soon as his report is ready, shall return the 
 same into the clerk's office, and the day of the return shall be 
 entered by the clerk in the order-book. The parties shall 
 have one month from the time of fihng the report to file ex- 
 ceptions thereto ; and, if no exceptions are within that period 
 filed by either party, the report shall stand confirmed on the 
 next rule-day after the month is expired. If exceptions are 
 filed, they shall stand for hearing before the court, if the court 
 is then in session ; or, if not, then at the next sitting of the 
 court which shall be held thereafter, by adjournment or other- 
 wise. 
 
 §4. 
 
 And, in order to prevent exceptions to reports from being 
 filed for frivolous causes, or for mere delay, the party whose 
 exceptions are overruled shall, for every exception overruled, 
 pay costs to the other party, and for every exception allowed 
 shall be entitled to costs ; the cost to be fixed in each case by 
 the court, by a standing rule of the circuit court. 
 
 DECEEES AND OEDEES. 
 
 §5. 
 
 Clerical mistakes in decrees or decretal orders, or errors 
 arising from any accidental slip or omission, may, at any time 
 before an actual enrolment thereof, be corrected by order of 
 the court or a judge thereof, upon petition, witliout the form 
 or expense of a rehearing. 
 
 86. 
 
 In drawing up decrees and orders, neither the bill, nor 
 answer, nor other pleadings, nor any part thereof, nor the 
 report of any master, nor any other prior proceeding, shall be 
 recited or stated in the decree or order ; but the decree and 
 order shall begin, in substance, as follows : " This cause came 
 on to be heard (or to be furtlier heard, as the case may be) at 
 
84 FEDERAL EQUITY RULES. 
 
 this term, and was argaed by counsel ; and thereupon, upon 
 consideration thereof, it was ordered, adjudged, and decreed 
 as follows, viz :" [Here insert the decree or order.] 
 
 GtTAKDIANS AD LITEM. 
 
 87. 
 
 Guardians ad litem to defend a suit may he appointed by 
 the court, or by any judge thereof, for infants or- other per- 
 sons who are under guardianship, or otherwise incapable to 
 sue for themselves. All infants and other persons so incapa- 
 ble may sue by their guardians, if any, or by their prochein 
 ami ; subject, however, to such orders as the court may direct 
 for the protection of infants and other persons. 
 
 EEHEAEINGS. 
 
 §8. 
 
 Every petition for a rehearing shall contain the special 
 matter or cause on which such rehearing is applied for, shall 
 be signed by counsel, and the facts therein stated, if not ap- 
 parent on the record, shall be verified by the oath of the party 
 or by some other person. No rehearing shall be granted 
 after the term at which the final decree of the court shall have 
 been entered and recorded, if an appeal lies to the Supreme 
 Court. But if no appeal lies, the petition may be admitted 
 at any time before the end of the next term of the court, in 
 the discretion of the court. 
 
 GENEEAL PEOVISIONS. 
 
 89. 
 
 The circuit courts (both judges concurring therein) may 
 make any. other and further rules and regulations for the prac- 
 tice, proceedings, and process, mesne and final, in their re- 
 spective districts, not inconsistent with the rules hereby pre- 
 scribed, in their discretion, and from time to time alter and 
 amend the same. 
 
 90. 
 
 In all cases where the rules prescribed by this court or by 
 the circuit court do not apply, the practice of the circuit court 
 shall be regulated by the present practice of the high court of 
 chancery in England, so far as the same may reasonably be 
 applied consistently with the local circumstances and local 
 conveniences of the district where the court is held, not as 
 
FEDERAL EQUITY RULES. 85 
 
 positive rules, but as furnishing just analogies to regulate the 
 practice. 
 
 91. 
 Whenever, under these rules, an oath is or may be required 
 to be taken, the party may, if conscientiously scrupulous of 
 taking an oath, in lieu thereof make solemn affirmation to the 
 truth of the facts stated by him. 
 
 December Teem, 1863. 
 
 92. 
 
 Ordered, That in suits in equity for the foreclosure of mort- 
 gages in the circuit courts of the United States, or in any 
 court of the Territories having jurisdiction of the same, a de- 
 cree may be rendered for any balance that may be found due 
 to the complainant over and above the proceeds of the sale or 
 sales, and execution may issue for the collection of the same, 
 as is provided in the eighth rule of this court regvdating the 
 eqaity practice, where the decree is solely for the payment 
 of money. 
 
 October Term, 1878. 
 
 injunctions. 
 93. 
 When an appeal from a final decree, in an equity _ suit, 
 granting or dissolving an injunction, is allowed by a justice or 
 judge who took part in the" decision of the cause, he may,- in 
 his discretion, at the time of such allowance, make an order 
 suspending or modifying the injunction during the pendency 
 of the appeal, upon such terms as to bond or otherwise as he 
 may consider proper for the security of the rights of the 
 opposite party. 
 
 BTOCKHOLDEKS' BILLS. 
 94. 
 Every bill brought by one or more stockholders in a corpo- 
 ration against the corporation and other parties, founded on 
 rights which may properly be asserted by the corporation, 
 must be verified by oath, and must contain an allegation that 
 the plaintiff was a shareholder at the time of the transaction 
 of which he complains, or that his share had devolved on him 
 since by operation of law, and that the suit is not a collusive 
 one to confer on a court of the United States jurisdiction of a 
 case of which it would not otherwise have cognizance. It 
 must also set forth with particularity the efforts of the plain- 
 tiff to secure such action as he desires on the part of the man- 
 aging Directors or Trustees, and, if necessary, of the share- 
 holders, and the causes of his failure to obtain such action. 
 
I N D E X-^ 
 
 ACKNOWLEDGMENT. page 
 
 Of bond on removal, said to be a matter of practice, in control of the 
 
 State Court 87-88 
 
 Want of, on bond for removal, cannot be raised for the first time in 
 Supreme Court 38 
 
 ADMINISTRATOR. 
 
 His own citizenship, not that of those he represents, is the test of 
 
 jurisdiction ;... n 
 
 State Statutes of limitation, in action against 18 
 
 Pendency of probate proceedings in State Court is no bar to bill 
 
 in Federal Court, against 19 
 
 Right to sue in Federal Court on note or chose in action of de- 
 ceased 34 
 
 What is sufficient allegation of citizenship of ? 34 
 
 May take an appeal without revivor of the suit 58 
 
 AFFIDAVIT. 
 
 On removal. See Removal of Causes, IV., 8. 
 ALIENAGE. 
 
 No jurisdiction of controversy between two aliens on ground of 
 citizenship 11 
 
 Form of allegation of 13 
 
 Not terminated by filing declaration of intention to become a 
 citizen 13 
 
 See Citizenship, 
 
 ALIMONY. 
 
 Federal Courts may not allow, but may enforce payment of 5 
 
 AMENDMENT. 
 
 Bringing in new parties after removal, no ground for remandment. 38 
 
 When petition may be amended after removal 35-86 
 
 Of bond, allowable after removal 37 
 
 See Pleading ; Removal op Causes, IV., V. , VI. 
 
 AMOUNT IN DISPUTE. 
 
 See Matter in Dispute. 
 
 * For the preparation of the Index, the editor is indebted to Samuel Blythe Kogere, 
 Esq., of the New York bar. 
 
88 INDEX. 
 
 ANCILLARY LITIGATION. page 
 
 Jurisdiction once acquired is retained as to all ancillary liti- 
 gation 15 
 
 Distinction between supplemental and ancillary, and original and 
 independent, proceedings 15-1 6 
 
 Mandamus, certiorari, &c., allowable only when ancillary 3 
 
 Substituted service allowable in when. (See Substituted Sek- 
 TICE.) 51 
 
 APPELLATE JURISDICTION OF CIRCUIT COURTS. 
 
 Statutory provisions 34 
 
 APPEALS FROM STATE COURTS. 
 
 Qumre, is remandment of, reviewable? 31 
 
 See "Aeisistg under the Constitution ob Laws op the 
 United States ;' ' Jukisdiction of Federal Coukts ; State 
 Courts. 
 
 "ARISING UNDER THE CONSTITUTION OR LAWS OP THE 
 UNITED STATES." 
 
 In general 7-10 
 
 Is substantially the language of the Constitution 7 
 
 A case so arises where a right depends on tlie construction given 
 
 to either 7 
 
 Jurisdiction when the plaintiff or defendant is a corporation char- 
 tered by Congress 7 
 
 But, National Banks are excepted by Judiciary Act of 1887 8, 55 
 
 When the corporation has been created by a Territorial law 8 
 
 Suit to enjoin infringement of patent does not so arise where its 
 
 validity is admitted by defendant 8 
 
 A suit on a j udgment of a Federal Court does not so arise 8-9 
 
 Quo Warranto, to determine title to ofiBce of Presidential electors. 9 
 Jurisdiction of suit so arising where a State is sued by one of its 
 
 own citizens 9 
 
 All such suits removable whenever Federal Courts would have 
 
 had original jurisdiction (text of the act) 24-25 
 
 Facts showing jurisdiction on this ground must appear on face of 
 
 the record 10, 34 
 
 When jurisdiction claimed on immaterial averments as to, cause 
 
 must be dismissed or remanded 42 
 
 Qumre, have Federal Courts jurisdiction of copyright or patent 
 
 suits involving less than two thousand dollars 1 57 
 
 See Jurisdiction of Federal Courts ; Removal op Causes. 
 
 ARREST. 
 
 Under Act of 1887, bail given in State court is not discharged by 
 removal of the suit 39 
 
 Jurisdiction to grant provisional remedies may be obtained by 
 premature filing of record in Federal Court 49 
 
INDEX. 89 
 
 ASSESSMENTS. page 
 State laws giving lien for betterments recognized 18 
 
 ASSIGNMENT. 
 
 Of promissory note, no right in assignee to sue in Federal 
 Courts 2, 21, 33 
 
 Colorable assignment of cause of action, to obtain access to Federal 
 Courts on ground of citizensMp 42 
 
 See Chose in Action. 
 
 ATTACHMENT. 
 
 In State Court, no bar to removal 19 
 
 In State Court, continues to bold goods after removal (text of 
 
 tbe act) 38 
 
 But it seems a Federal Court may authorize its marshal to talie 
 
 possession of sucb goods 39 
 
 Jurisdiction to grant provisional remedies may be obtained by 
 
 premature filing of record in Federal Court 49 
 
 ATTORNEY. 
 
 May sign petition for removal 35 
 
 — Or bond on removal , 37 
 
 BAIL. 
 
 Given in State Court, not discharged by removal, since Act of 
 1887 39 
 
 BANKS, NATIONAL. 
 
 No jurisdiction over suits in which they are parties, on ground of 
 being Federal corporations, since Act of 1887 8, 55 
 
 BETTERMENTS. 
 
 State laws giving lien for, recognized by Federal Courts 18 
 
 BILL OF REVIEW. 
 
 Time within which it must be filed after service without the State. 51 
 BILL TO QUIET TITLE. 
 
 State laws authorizing, recognized by Federal Courts 18 
 
 BILLS OF EXCHANGE. 
 
 When assignee of foreigh, may sue in Federal Court 3 
 
 Policy which dictated this provision 30 
 
 Check on domestic bank is not an inland bill 20 
 
 See Chose in Action. 
 
 BOND, MUNICIPAL. 
 
 Suit by assignee of, in Federal Courts 24 
 
 BOND ON REMOVAL. 
 
 See Removal of Caitses, IV., 3. 
 
 BONDS. 
 
 Given prior to removal of suit, remain valid afterward 39 
 
 7 
 
90 irfDEX. 
 
 " CASES." i-AOK 
 
 As distinguished from " suits of a civil nature " 3 
 
 CERTIORARI, WRITS OF. 
 
 United States Courts cannot issue, except as ancillary to process 
 
 otherwise cognizable 3 
 
 May issue to compel a State Court to make return of the record of 
 
 a case removed 47 
 
 CHECK. 
 
 On domestic bank not an inland bill of exchange 30 
 
 CHOSE IN ACTION. 
 
 Assignee of, can sue in Federal Courts only when assignor 
 
 could 3,31-34 
 
 Rule includes both legal and equitable assignments 31 
 
 Is a term of comprehensive import 31 
 
 Rule includes suit to enforce payment of mortgage debt 31-33 
 
 — But not suit to recover possession of mortgaged premises 33 
 
 Rule includes suit for specific performance 31 
 
 — But not for tortious taking, &c. , of a chattel 33 
 
 — Nor where chattel is sought to be recovered in specie 33 
 
 — Nor suit by endorsee against endorser, who resides in same State 
 
 as maker 33 
 
 What is meant by " contents " of ? 31-33, 33 
 
 Rule includes assignments made by operation of law 34 
 
 —But not suits by the representatives of a deceased person or 
 
 receivers '. 34 
 
 This restriction does not prevent removal for prej udice or local 
 
 influence 30 
 
 CIRCUIT COURTS. 
 
 Appellate Jurisdiction of 34 
 
 Removal to, from District Court, on account of disability of judge. 34 
 See Jurisdiction of Federal Courts ; Removal of Causes ; 
 
 and titles there cited. 
 CITIZENSHIP. 
 
 ' Of formal parties with no real interest, disregarded 10 
 
 No jurisdiction on this ground, of suit between two aliens ,. . . . 11 
 
 Nor of suit 'between a citizen of the District of Columbia or of a 
 
 Territory and a citizen of a State 11 
 
 Nor of a suit by one State against a citizen of another State 11 
 
 Corporation presumed to consist of citizens of the State chartering 
 
 it 11 
 
 Same presumption as to unincorporated associations, when 11 
 
 Of corporation chartered in several States 11 
 
 Of municipal corporation 11 
 
 Of one suing or sued as receiver, executor, or administrator 11 
 
 Of an infant, thougli suing by guardian or next friend 13 
 
 Must appear on the face of the record when jurisdiction is claimed 
 
 on that ground 13, 41 
 
INDEX. 91 
 
 PAGE 
 
 — And tlie citizeiisbip of eacli party must be set fortli 13, 34 
 
 Allegation of residence or domicile is insufficient 13, 34 
 
 Form of averment of alienage 13 
 
 A consul is not presumed a citizen of tlie State be represents 13 
 
 Filing declaration of intention to become a citizen does not termi- 
 nate alienage 13 
 
 On cbange of domicile, depends on intention 13 
 
 — But intention sbown more satisfactorily by acts tban declara- 
 tions 13 
 
 Exercise of rigbt of suffrage conclusive of intent 13 
 
 Of no State in particular 13 
 
 Cbange of citizensbip for tbe purpose of suing in Federal Court is 
 
 no bar to sucb suit 13 
 
 Allegation of citizensbip of a corporation 13 
 
 Bemoval on ground of, only by non-resident defendants 36 
 
 — Except, perbaps, wbere controversy " wbolly between citizens 
 
 of different States" 36 
 
 Eemoval of controversy " wbolly between citizens of different 
 
 States" 10, 38 
 
 Jurisdiction on ground of, once obtained cannot be defeated by 
 
 bringing in new parties , 38 
 
 Practice wbere parties improperly joined to prevent removal for. . 39 
 Improper joinder of parties to obtain access to Federal Courts on 
 
 ground of 40 
 
 Colorable assignments to obtain access to Federal Courts, on 
 
 ground of 29, 43 
 
 What is a sufficient allegation of, for removal ? 34 
 
 To sustain removal, except for prejudice or local influence, must 
 
 have existed since commencement of suit 30, 34 
 
 Allegation of, of executors ii4 
 
 Want of requisite, must be pleaded, or no evidence of it may be 
 
 given 40,43 
 
 Must appear on face of record, or suit may be dismissed at any time. 41 
 
 Burden of proving, is on party seeking removal 43 
 
 National banking associations deemed citizens of tbe State in 
 
 wbicb tbey are situated 55 
 
 See CONTBOVERST ; Jdeisdiction of Federal Courts ; Par- 
 ties ; Removal of Causes. 
 
 CIVIL RIGHTS ACTS. 
 
 Jurisdiction under, not affected by Act of 1887 55 
 
 Construction and constitutionality of 55, 56 
 
 COMITY. 
 
 See " Property in the Custody of a State Court ;" " State 
 Laws." 
 
 CONDEMNATION PROCEEDINGS. 
 
 Jurisdiction of Federal Courts as to 4-5 
 
93 INDEX. 
 
 CONSTITUTIONAL LAW. p-^ge 
 
 See "Arising under the Constitution or Laws of the 
 United States." 
 
 CONSUL. 
 
 Not presumed a citizen of the State which he represents 12 
 
 CONTROVERSY. 
 
 Defined 10 
 
 Word controversary substituted for, in Act of 1887, Section 1 10 
 
 Position of parties in pleadings disregarded in determining be- 
 tween whom it lies 10 
 
 Citizenship of formal parties, with no real interest in, disregarded. 10 
 
 In action broujiht by a State for benefit of an individual 11 
 
 Must be wholly between citizens of different States 10, 38 
 
 — And this is not the case when defendant cliarged jointly with 
 fellow-citizen of plaintiff 38 
 
 — Even though the obligation itself be joint and several 39 
 
 — Or though defendants file separate answers 39 
 
 — Or though one of the defendants is in default 39 
 
 — Or though judgment entered against one defendant before other 
 served with process 39 
 
 Practice where parties improperly joined to prevent removal on 
 ground of 39 
 
 Improper joinder of parties to obtain access to Federal Court is a, 
 ground for dismissing or remanding. ... 40 
 
 Wliere only one, all defendants must join in removal 29 
 
 — So that if one has lost his right to remove, the other cannot 
 do so 39 
 
 Removal takes entire suit, not controversy alone, into the Federal 
 Court 29 
 
 Dismissal or remandment of suit when controversy not cognizable 
 or parties thereto have been collusively joined (text of the act).. 40 
 
 See Citizenship ; Parties ; Removal of Causes, II. 
 
 COPYRIGHT. 
 
 Qucere, must matter in dispute exceed two thousand dollars to 
 
 permit Federal j urisdiction of suits, to enforce ? 57 
 
 Qucere, have State courts jurisdiction of suits in which less than 
 
 two thousand dollars is involved ? 58 
 
 CORPORATION. 
 
 Jurisdiction of suits by assignee of negotiable paper of 2 
 
 Qucere, are public or quasi-public corporations included ? 24 
 
 Federal, jurisdiction of suits in which it is a party 7 
 
 But National Banks excepted by Act of 1887 8, 55 
 
 Territorial, no jurisdiction of j . 8 
 
 Conclusively presumed to be composed wholly of citizens of State 
 
 chartering it, 11 
 
 Municipal, presumed a citizen of the State where situated 11 
 
 When in hands of receiver, his citizenship determines jurisdiction. 11 
 
INDEX. 93 
 
 PAGE 
 
 What is a sufficient allegation of citizensliip of ? ■ 13 
 
 Qucere, can it be sued in a district of wliicli it is not an inhab- 
 itant? 13-14 
 
 — Or can it have a residence apart from the State chartering it ?. 14 
 Agreement by, not to remove any suits brought in a State, is void. 37 
 May be excluded from business in a State except when engaged 
 
 in interstate commerce 37 
 
 Agreement by, not to remove a speciiied suit, is valid 37 
 
 Rule as to necessary averments in stockholder's bill to enforce its 
 
 rights when its officers refuse to do so 43 
 
 — It must allege that the suit is not collusive 42 
 
 — What is a sufficient allegation of this ? 43 
 
 — It must also allege what efforts plaintiff has made to induce 
 action by the corporation itself 43 
 
 — When plaintifi is excused from making such efforts 44 
 
 See Receivbe. 
 
 COSTS. 
 
 What, are allowable when the suit is remanded ? 38, 40 
 
 What, are allowable when the suit is dimissed for failure to pro- 
 ceed after removal ? 38 
 
 What, are allowable on final judgment after removal ? 46-47 
 
 COUNTERCLAIM. 
 
 Amount, of may be included in estimating matter in dispute. . 37-28 
 CUSTODY OF CHILDREN. 
 
 Suits as to, not removable, because the subject-matter has no 
 pecuniary value 5, 38 
 
 DEATH OP PARTT. 
 
 Does not necessitate revivor, in order that appeal may be taken . . 53 
 
 DECEDENT'S ESTATES. 
 
 Claims against, cognizable in Federal Courts 4 
 
 DEMURRER. 
 
 Argument of, is a " trial," and removable as such 30 
 
 DEPOSITION. 
 
 Order of State Court for, to be taken before trial, must be vacated 
 on removal 39 
 
 DISABILITY. 
 
 Of judge is ground for removal from District to Circuit Court 34 
 
 DISMISSAL. 
 
 For want of j urisdiction or improper or collusive jqinder of parties. 40 
 
 Facts showing right to, should be pleaded 40 
 
 See Jurisdiction op Fkdbkal Courts ; Removal op Causes, VIII. 
 
 DISTRICT COURTS. 
 
 Removal from, to Circuit Courts, for disability of judge 34 
 
94 INDEX. 
 
 DIVORCE. i-AGi= 
 Federal Courts have no j urisdiction 5 
 
 — But may enforce payment of alimony 5 
 
 DOMICILE. 
 
 On cliange of, tlie citizenship depends on intention 12 
 
 But intention judged of by acts rather than declarations 12 
 
 Exercise of suffrage conclusive as to intent 12 
 
 EQUITY. 
 
 State Statutes as to, do not affect Federal practice 16 
 
 EXECUTOR. 
 
 His ovfn citizenship, not that of those he represents, is the test. . . 11 
 
 State Statutes of limitation, in actions against 18 
 
 Pendency of probate proceedings in State Court no bar to bill in 
 
 Federal Court, against 19 
 
 Right to sue in Federal Court on promissory note or chose in ac- 
 tion, &c 24 
 
 What is a sufficient allegatron of citizenship of? 34 
 
 May take an appeal without a revivor of the suit 53 
 
 FRAUD. 
 
 In acquiring possession, no ground for interference with property 
 
 in custody of a State Court : 19 
 
 In joining parties, ground of dismissal or remandment 40, 41 
 
 GRANT OF LAND FROM DIFFERENT STATES. 
 See Land Grants from different States. 
 
 SABBAS' CORPUS. 
 
 Statutory provisions as to 3 
 
 See Matter in Dispute. 
 
 INJUNCTION. 
 
 State laws regulating, not recognized when they impair Federal 
 jurisdiction 17 
 
 — Except when they create a new class of rights 18 
 
 When argument of motion for, held equivalent to a " trial" 30, 31 
 
 Of State Courts, remains valid after removal of the suit 39 
 
 But Federal Court cannot punish its violation before removal 39 
 
 Jurisdiction to grant, obtained by premature filing of record 49 
 
 INTERSTATE COMMERCE ACT. 
 
 Powers of Circuit Courts under 3, 14 
 
 JOINT STOCK COMPANY. 
 
 When presumed to be composed wholly of citizens of one State. . . 11 
 
 JUDGE. 
 
 Cannot appoint certain relatives to ofiice 58 
 
 Disability of, is ground for removal from District to Circuit Court. 34 
 
INDEX. 95 
 
 JUDGMENT. PAGE 
 
 When suits on, not cognizable in Federal Courts 8-9 
 
 State Statutes regulating suits on, when not recognized 17 
 
 Proceedings on, in State Court, may be stayed by Federal Court. 19 
 Creditors' bill to enforce, may be brought in Federal Court, though 
 
 suit itself might not have been 16 
 
 — But not statutory proceedings supplementary to execution 16 
 
 Service of judgment debtor without the jurisdiction, iu seques- 
 tration proceedings 51 
 
 See Ancillaky Litigation. 
 
 JUDICIARY ACTS, TEXT OF. 
 
 Section 1, Act of 1875, as amended in 1887 1-2 
 
 Section 2, Act of 1875, as amended in 1887 24-26 
 
 Section 3, Act of 1875, as amended in 1887 .31-33 
 
 Section 4, Act of 1875 38-39 
 
 Section 5, Act of 1875, as amended in 1887 39^0 
 
 Section 6, Act of 1875 44^45 
 
 Section 7, Act of 1875 47-48 
 
 Section 8, Act of 1875 49-50 
 
 Section 9, Act of 1875 53 
 
 Section 10, Act of 1875 53 
 
 Section 2, Act of 1887 53 
 
 Section -8, Act of 1887 54 
 
 Section 4, Act of 1887 55 
 
 Section 5, Act of 1887 55 
 
 Section 6, Act of 1887 56 
 
 Section 7, Act of 1887 58 
 
 JURISDICTION. 
 
 Of State Couets. See that title. 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 " Arising under the Constitution or Laws op the United 
 States," or depending upon Citizenship ; Controversy ; Land 
 (grants from diiierent States) ; Matter in Dispute ; Parties, 
 &c. See those titles. 
 " Of suits of a civil nature." See Certiorari ; Condemnation 
 Proceedings; Decedent's Estates; Divorce; Habeas Cor- 
 pus : Mandamus ; Prohibition ; Quo Warranto, &c. See 
 also Chose in Action ; Removal of Causes ; — of State 
 Courts, see that title. 
 
 Matter in dispute must exceed two thou sand dollars 1, 26 
 
 Where a Federal corporation is a party 7 
 
 Wiiere a National Bank or Territorial corporation is a party. . . .8, 55 
 Suits to enjoin use of patents, where defendant admits their va- 
 lidity 8 
 
 Where a State sued by its own citizen 9 
 
 Suit between two aliens 11 
 
 Special limitation on U. S. Circuit Court for Southern District of 
 New York 14 
 
96 INDEX. 
 
 PAOB 
 
 Once acquired, covers all ancillary litigation 15 
 
 Not affected by State Statutes, instances 16-18 
 
 But Federal Courts take notice of new rights created by Statute or 
 
 customary law of State 17-18 
 
 Appellate, of Circuit Courts 24 
 
 Once acquired by removal cannot be defeated by reduction of amount 
 
 demanded 27 
 
 — Nor by any events subsequent to removal i 27 
 
 Once acquired by original process or removal cannot be defeated 
 
 by amendment bringing in new parties or causes of action 28 
 
 What are sufficient allegations of, in petition for removal? 34 
 
 Jurisdictional amount must appear on the face of the record 35 
 
 ' When parties improperly joined to prevent removal 29 
 
 None, where parties improperly joined to obtain jurisdiction 40 
 
 Dismissal for want of 40 
 
 Want of, must be pleaded before evidence may be given as to. .40, 43 
 
 But Court itself may inquire as to when it suspects collusion 41 
 
 Must be shown affirmatively on the record, or suit may be dis- 
 missed at any time 41 
 
 Consent to, may waive a previous want of, when 41 
 
 Burden of proving requisite citizenship, is on removing party 42 
 
 All questions as to, must be tried in the Federal Court 42 
 
 None, where colorable assignment of cause of action made to citi- 
 zen of another State 42 
 
 Rule as to necessary averments in Stockholders' bill to enforce 
 rights of corporation, because its officers refuse to do so. (See 
 
 Corporations) 42-44 
 
 Not necessary that process (before removal) be served within the 
 
 Federal District to which suit removed 46 
 
 None, on removal, where State Court had none 46 
 
 Jurisdictional facts may appear in either pleadings or petition. ... 46 
 
 Not ousted by failure to file record 48 
 
 But it is ousted by order remanding for failure to file record 35 
 
 To grant provisional remedies, may be obtained by premature 
 
 filing of record 49 
 
 — But cause may not be heard till time specified in bond has 
 
 expired 49 
 
 Of suits under "Civil Eights Act," and against revenue officers, 
 
 not affected by Act of 1887 55-56 
 
 Of pending suits, not affected by Act of 1887, except when expressly 
 
 so stated 56 
 
 QucBre, have Federal Courts jurisdiction over copyright or patent 
 
 suits involving less than two thousand dollars ? 57 
 
 See Ebmotal of Causes. 
 
 LAND GRANTS FROM DIFFERENT STATES. 
 
 Jurisdiction 13 
 
 Jurisdiction not affected by equitable title prior to the grant 13 
 
 Removal of suits affecting, only by non-resident defendants 26 
 
INDEX. 97 
 
 PAGE 
 
 Removal by any party, -wlien 33 
 
 When party refusing to state sucli grant, on demand, is precluded 
 
 from pleading or proving it 32-33 
 
 When removing party may only prove title stated as ground of 
 
 removal 33 
 
 LAWS. 
 
 See " Arising under the Constitution or Laws of the 
 United States ;" State Laws. 
 
 LIMITATION, STATE STATUTES OP. 
 
 Recognized where no Federal Statute 18 
 
 Cannot bar the United States 18 
 
 Generally followed in Federal Courts of Equity 18 
 
 — But not where they work manifest injustice 18-19 
 
 In certain actions 18 
 
 LOCAL INFLUENCE. 
 
 See Rejiotal op Causes, III. 
 
 MANDAMUS. 
 
 Not generally cognizable in Federal Courts 2 
 
 — Exceptions 3 
 
 Special provision as to the Union Pacific Railroad 3 
 
 Under Interstate Commerce Act 3 
 
 QucBre, can it be used to review a remandment? 31 
 
 MATTER IN DISPUTE. 
 
 Must exceed two thousand dollars 1 
 
 General observations as to 5-7 
 
 Phrase is construed strictly 5 
 
 As to personal rights that have no value in money (personal lib- 
 erty, custody of children) 5, 38 
 
 Must be an actual and present value in money, determined by 
 
 inspection of the record 5, 6 
 
 When amount demanded determines 6 
 
 Upon bill for an accounting 6 
 
 In suit to enjoin use of trade-mark 6 
 
 In suit for injunction 6 
 
 When the united interests of several plaintiffs is taken 6 
 
 When plaintiff sues for himself and all others of a class who may 
 
 join 6 
 
 Must appear on the face of the recoi'd 6 
 
 Must exceed two thousand dollars to permit a removal 36 
 
 Reduction of amount of, after removal, cannot impair jurisdiction. 27 
 If sufficient when suit removed, no subsequent event can affect 
 
 j urisdiction 37 
 
 If increased to statutory amount, by counterclaim, permits a re- 
 moval 37-38 
 
98 INDEX. 
 
 PAGE 
 
 la copyriglit or patent suits, must it exceed two thousand dollars?. 57 
 See Jurisdiction of Feder.\l Codets ; Removal op Causes. 
 MOTIONS. 
 
 Denied by State Court before removal, should not be renewed 
 without leave afterward 46 
 
 MORTGAGE. 
 
 State statutes regulating suits affecting, not recognized by Federal 
 Courts 17 
 
 — Except when they create a new class of rights 18 
 
 Is a chose in action, within the restriction as to suits by assignee of. 21 
 Assignee of, can sue in Federal Courts only when assignor could, 
 
 when payment is sought to be enforced 31, 23 
 
 — Otherwise when possession of mortgaged premises only is sought. 22 
 
 MUNICIPAL BOND. 
 
 Suit by assignee of 34 
 
 NATIONAL BANKS. 
 
 Jurisdiction in suits aflFecting 8, 55 
 
 ORDERS. 
 
 Of State Courts remain valid after removal of the suit 39, 46 
 
 But it seems that Federal Courts cannot punieh their violation, be- 
 fore removal 39 
 
 Of State Court, for examination of party before trial, should be 
 vacated on removal 89 
 
 PARTIES. 
 
 Position of, in pleadings disregarded, in determining between 
 
 whom controversy lies 10 
 
 Citizenship of formal parties does not affect jurisdiction 10 
 
 Removal on ground of status of, only where Circuit Court would 
 
 have original j urisdiction 26 
 
 Bringing in new parties cannot defeat jurisdiction once acquired. . 38 
 
 Improper joinder of, to prevent removal 29 
 
 Improper joinder of, to obtain access to Federal Courts 40 
 
 Death of, does not necessitate revivor, in order that appeal may be 
 
 taken 53 
 
 — But representatives may continue suit on filing proof of their 
 appointment 53 
 
 See Citizenship ; Controveest ; Jueisdiction ; Rbmovai of 
 Causes. 
 
 PATENTS. 
 
 Suits to enjoin use of, no jurisdiction where defendant admits 
 
 validity 8 
 
 Qucere, must matter in dispute exceed two thousand dollars to 
 
 permit Federal jurisdiction of suits in ? 57 
 
 Qucere, have State Courts jurisdiction of suits in, when less than 
 
 two thousand dollars involved ? ^ 57 
 
INDEX. 99 
 
 PENDING SUITS. page 
 
 Not aflfected by Act of 1887, except, &c 56 
 
 Removed for prejudice or local influence, must be remanded, 
 under Act of 1887, when 25, 27, 58 
 
 PETITION FOR REMOVAL. 
 
 See Removal op Causes, IV., 1. 
 PLEADING. 
 
 Matter in dispute must appear on the face of the record 6, 35 
 
 Where jurisdiction is claimed on the ground that case arises under 
 the Constitution or Laws of the United States, that fact must be 
 alleged 10 
 
 — Allegation of this in the words of the Statute is insufBcient ... 10 
 
 Averment of alienage 13 
 
 Citizenship must appear on the face of the record, when 12, 34 
 
 — And an allegation of residence or domicile is insufficient 12 
 
 Allegation of citizenship of a corporation 13 
 
 Inhabitancy of defendant need not be alleged by plaintiff 14 
 
 State Statutes regulating, cannot impair Federal jurisdiction 17 
 
 Party many compel his opponent to state if he claims land under 
 
 a, grant from a different State 33, 33 
 
 — And the right to give evidence thereof is limited by such state- 
 ment 33 
 
 Contents of affidavit on removal for prejudice or local in- 
 fluence 33, 56-57 
 
 Jurisdictional facts may appear either in pleadings or petition for 
 removal 34 
 
 Allegation of jurisdiction in the words of the Statute, or upon in- 
 formation and belief, is insufficient : 34 
 
 Want of jurisdiction must be pleaded, or no evidence of it may be 
 given 40, 42 
 
 — Except where the Court suspects collusion 41 
 
 If jurisdiction does not appear affirmatively on the record, the suit 
 
 may be dismissed at any time 41 
 
 How allegations in petition for removal may be contradicted 42 
 
 Rule as to necessary allegations in stockholder's bill to enforce 
 
 rights of corporation on ground of refusal of its officers to do so. 42 
 
 — It must be verified 42 
 
 — And allege that suit is not collusive to confer jurisdiction of 
 suit not otherwise cognizable 42 
 
 — What is a sufficient allegation of this ? 43 
 
 — It must state what effijrts plaintiif has made to induce action by 
 corporation itself 42 
 
 — What is a sufficient allegation of this ? 44 
 
 — • When plaintiff is excused from making such effijrts 44 
 
 For practice on removal, see Removal of Causes, IV. 
 
 PRACTICE ON REMOVAL. 
 
 See Removal, of Causes, IV. 
 
100 INDEX. 
 
 PREJUDICE OR LOCAL INFLUENCE. , pase 
 
 See Removal of Causes, III. 
 
 PROHIBITION, WRITS OF. 
 
 Only issued by Supreme Court 3 
 
 PROMISSORY NOTES. 
 
 When Federal Courts have no jurisdiction of suits on by as- 
 signee , 3,31,23 
 
 Endorsee may sue remote endorser, though plaintifE is a citizen of 
 same State as maker 33 
 
 PROPERTY IN CUSTODY OF STATE COURT. 
 
 Federal Courts usually will not interfere with 19 
 
 — Even though the custody was acquired by fraud 19 
 
 Pact of such custody must be raised before final hearing 19 
 
 Pendency of probate proceedings in State Court does not prevent 
 
 bill against executor or administrator in Federal Court 19 
 
 Bill may be filed to stay proceedings on judgment of State Court. 19 
 Suit may be removed, though receiver appointed by State Court in 
 
 it , 19 
 
 — Or property taken into possession under common law writ 19 
 
 Constructive possession 19 
 
 If suit first brought in Federal Court, it will en force its right to cus- 
 tody .- 20 
 
 Same comity prevails between different Federal Courts 20 
 
 Receiver appointed before removal remains in possession and may 
 be required to account in Federal Court 39 
 
 PROVISIONAL REMEDIES. 
 
 Jurisdiction to grant, may be obtained by premature filing of rec- 
 ord in Federal Court 49 
 
 PUBLICATION, SERVICE BY. 
 
 See Sbkvice vriTHOuT the Jurisdiction or by Publication. 
 
 QUO WARRANTO. 
 
 Removal of, when brought by a State in a State Court 3 
 
 To determine title to office of Presidential electors does not arise 
 " under the Constitution or laws of the United States " 9 
 
 RECEIVER. 
 
 His own citizenship, not that of bis corporation, determines juris- 
 diction 11 
 
 Appointment by State Court does not bar removal 19 
 
 Not prohibited to sue in Federal Courts under rule as to assignees 
 
 of choses in action .- 24 
 
 Appointed before removal, continues in possession afterward. ... 39 
 Must manage property in accordance with the laws of State in 
 
 which it is situated 58-54 
 
 Penalty where he neglects to so manage property 54 
 
INDEX. 101 
 
 PAGE 
 
 May be sued witliout leave of Court 54 
 
 When he may not employ relative as counsel , 58 
 
 RECORD, FILING OF. 
 
 See Removal of Causes, VII. 
 
 EEMANDMENT TO STATE COURTS. 
 See Removal of Causes, VIII. 
 
 REMOVAL OP CAUSES. 
 
 I. In General. 
 
 From District to Circuit Court, for disability of judge 24 
 
 Text of the Removal Act (Section 3) 34-2G 
 
 Only when matter in dispute exceeds two thousand dollars. ... 24, 26 
 Reduction of amount demanded, after removal, will not defeat it.. 27 
 If amount sufBcient when removal occurs, no subsequent change 
 
 in, can defeat it 27 
 
 Matter in dispute may include counterclaim 27, 28 
 
 Decision of Circuit Court remanding, not reviewable 26, 31 
 
 — But omission to remand is, even though no motion made at Cir- 
 cuit 31 
 
 Quaere, is remandment, of appeal from State Court, reviewable?. .. 81 
 
 Four important changes as to removals, made by Act of 1887 26 
 
 On ground United States are plaintiffs or petitioners, only by non- 
 resident defendants 26 
 
 On ground of status of parties, only by non-resident defendants. . 26 
 Only allowable under Act of 1887, in cases of which Circuit Courts 
 have original j urisdiction 27 
 
 — Except where sole objection to original jurisdiction was non- 
 residence of defendant 27 
 
 Agreement by corporation not to remove any suits brought against 
 
 it in a State, is void 27 
 
 But a corporation may be excluded by a State from doing business 
 
 within it 37 
 
 Stipulation not to remove a specific suit is valid 27 
 
 Cannot be defeated by any events subsequent to 27 
 
 Of suits involving personal rights incapable of pecuniary value 
 
 (personal liberty, custody of a child) 28 
 
 Cannot be defeated subsequently to, by bringing in new parties or 
 
 causes of action 38 
 
 State jurisdiction completely ousted by 31 
 
 So that a trial on the merits in the State Court does not waive a 
 
 removal already taken 31 
 
 Not barred till trial in State Court begun, actually and in good faith. 31 
 
 Barred by order remanding for failure to file record 35 
 
 State Courts not required to take notice of proceedings in Federal 
 
 Courts 36 
 
 State Court retains jurisdiction until removability appears on its 
 
 own records 36 
 
102 INDEX. 
 
 PASE 
 
 No order of State Court essential to removal 38 
 
 No jurisdiction in Federal Court, when State Court had none 46 
 
 Is not an appeal, but a change of venue 39, 46 
 
 ii. conteoveksy wholly between citizens of diffekbnt 
 States. 
 
 Text of the act 35 
 
 Only of suits mentioned in Section 3 of act 35 
 
 Position of parties in pleadings disregarded in determining be- 
 tween whom controversy lies 10 
 
 Wliat controversy must exist ? 38 
 
 Q,ucBre, must removal be by non-resident defendants ? 35, 26 
 
 Controversy must be wholly between citizens of different States. 
 
 10, 35, 38 
 So not allowable where defendant charged jointly with fellow- 
 citizen of plaintiff 28 
 
 — Even though the obligation itself be joint and several 39 
 
 —And though defendants file separate answers 39 
 
 — And though one of the defendants be in default 39 
 
 — And though judgment be entered against one, before the other 
 
 served with process 39 
 
 Practice where parties improperly joined to prevent a removal .... 39 
 
 None when colorable assignment made to prevent a removal 39 
 
 All defendants must join in removal, where only one controversy. 29 
 If one defendant lost his right to remove, the other cannot do it 
 
 alone 29 
 
 Removal takes the entire suit, not merely the controversy 29 
 
 See COHTROVEBSY. 
 
 III. For " Prejudice or Local Influence." 
 
 Text of the act 35-26 
 
 Only by non-resident defendant 35 
 
 Must be a controversy between a citizen of the State where suit 
 
 brought, and of another State 25 
 
 Exception as to defendants not prejudiced 25 
 
 Rule made stricter by Act of 1887 35, 26 
 
 Ground of removal must be made to appear to satisfaction of 
 
 Circuit Court 25, 27 
 
 — Even in cases already removed 26, 58 
 
 Affidavit is not conclusive of existence of ground for removal, 
 
 since Act of 1887 27 
 
 Is analogous to application to State Court for change of venue .... 39 
 State decisions on change of venue are followed by Federal Courts. 39 
 Requisite citizenship for, may be acquired at any time before 
 
 removal 30, 34 
 
 Restriction as to suits by assignee of chose in action apparently 
 
 does not prevent such removal 30 
 
 The argument of a dumurrer is a " trial " 30 
 
 — A motion for injunction » 30 
 
INDEX. 103 
 
 PAGE 
 
 — And an appeal from tlie decision of suoli motion has been lield 
 equivalent to a trial 81 
 
 — But not the entry of an order taking bill pro confesso 30 
 
 Right of, not barred till trial begun actually and in good faith in 
 State Court 31 
 
 Uncertainty of practice as to 33 
 
 Qiuere, is E. S. 639 stilUn force as to ? 33, 56-57 
 
 For practice on, See IV., infra. 
 
 On other grounds, see Akising under the Constitution or 
 Laws op the United States ; Citizenship ; Controversy ; 
 Jurisdiction oe Federal Courts ; Land ; Matter in Dis- 
 pute. 
 
 IV. Practice on Removal. 
 
 Text of Judiciary Act 31-33 
 
 Party may be required by his opponent to state if he claims land 
 under grant from a different State 33 
 
 — And his proof must conform to such statement 83 
 
 State Courts need not talse notice of removal proceedings in Fed- 
 eral Courts 36 
 
 — But retain jurisdiction until removability appears on their own 
 records 36 
 
 No order of State Court is essential to removal 38 
 
 Petition and bond may be filed in vacation 38 
 
 Extension of defendant's time to answer, &c., extends also the 
 
 time to remove 38 
 
 What costs are allowable when case remanded 38 
 
 Practice where defendants improperly joined to prevent removal. 39 
 Jurisdictional facts must appear either in pleadings or petition. . . 46 
 Orders, &c.,made by State Court remain in force after removal. 39, 46 
 
 — So a motion denied by the State Court cannot be renewed after 
 removal without leave 46 
 
 1. Petition. 
 
 Must be filed in State Court 33 
 
 Must allege facts showing jurisdiction 34 
 
 Allegation of jurisdiction in words of the statute insufficient 34 
 
 Allegations showing jurisdiction must be positive and certain. ... 34 
 
 What are sufficient allegations of citizenship ? 34 
 
 Need not be verified 35 
 
 May be signed by party, or by attorney in law, or fact 35 
 
 Qucere, may Circuit Court permit its amendment ? 35 
 
 Semble, it can, only when State Court has assented to removal by 
 
 order , 35-36 
 
 Subsequent answer treated as an amendment to 36 
 
 May be filed in vacation 38 
 
 How allegations in, may be contradicted 43 
 
 3. Bond. 
 
 Must be filed in State Court 33 
 
 Must name a specific sum as the penalty 86 
 
104 INDEX. 
 
 PAGB 
 
 Penalty of one thousand dollars ordinarily sufficient, where de- 
 fendant has not been held to hail 36 
 
 Condition to file " copies of all process" is insufficient 37 
 
 Instance of bond held sufficient 37 
 
 Must provide for payment of coats in case of a remandment 37 
 
 Need not be executed by petitioner 37 
 
 May be executed by petitioner's attorney at law in his name 87 
 
 Defect in, may be cured by amendment, with leave of Court 37 
 
 — Or a new bond filed, with leave 37 
 
 It is customary to procure approval of, by State Court 37 
 
 Qucere, can Federal Court approve it after disapproval by State 
 
 Court, or disapprove it after State Court's approval ? 37 
 
 Acknowledgment of, is said to be a, matter of practice wholly in 
 
 control of State Court 38 
 
 May be filed in vacation 38 
 
 3. Affidamt. 
 
 May be verified by any one 33 
 
 ■ — But preferably by a party 33 
 
 Should state what 33 
 
 Must be verified in accordance with State laws 33 
 
 V. Effect of Removal on Previous Pkocbbdings. 
 
 Text of the act 38-39 
 
 Attachment or sequestration in State Court continues to hold goods 
 
 after removal 38 
 
 But it seems a Federal Court may authorize its marshal to take 
 
 possession of such goods 39 
 
 Bonds and undertakings given prior to removal remain effectual 
 
 afterward 39 
 
 Injunctions and orders made prior to removal remain in force 
 
 afterward 39 
 
 But it seems that a Federal Court cannot punish a party for viola- 
 tion before removal of such order 39 
 
 And order for examination of party before trial must be vacated 
 
 on removal 39 
 
 Bail no longer discharged by removal (since Act of 1887) 39 
 
 Stipulation made before removal will be enforced afterward 39 
 
 Receiver appointed before removal remains in possession, and may 
 
 be required to account in Federal Court 39 
 
 VI. Practice after Eemoval. 
 
 Circuit Court acts as if suit originally brought in it , .44-45 
 
 In common-law suits, no repleader necessary 45 
 
 — Nor in equity cases, where pleading in State Court contains 
 the substance of a bill 45 
 
 — But repleader sometimes advisable in equity cases 45 
 
 Repleader necessary when both legal and equitable relief de- 
 manded in one suit 45 
 
INDEX. 105 
 
 PAGE 
 
 — Practice when repleader neglected in sucli cases 45 
 
 Practice when plaintiff proceeds on wrong side of the Court after 
 
 removal 4g 
 
 In equity suits, defendant's right to plead expires on second rule- 
 day after appearance " 45 
 
 What is considered an action at law 45 
 
 Filing of petition and bond does not prevent motion in Federal 
 
 Court to dismiss for want of jurisdiction of the person 46 
 
 See infra, VII., as to Filing of Reookd. 
 
 Decisions of State Court before removal will be followed by Fed- 
 eral Court afterward 4g 
 
 — So that it seems that a motion denied by State Court may not 
 be renewed after removal without leave 46 
 
 VII. Filing of Bbcoed. 
 
 Text of the act as to (Section 7) 47 
 
 Time within which it must be filed 47 
 
 Penalty for clerk of State Court refusing copy of it 47 
 
 Circuit Courts may issue certiorari to compel State Courts to make 
 
 return of the record 47 
 
 Provision when copy of record cannot be obtained by removing 
 
 party 47 
 
 When parties may be required to plead de novo 48 
 
 Eemandment for failure to file bars second removal for same 
 
 cause 35 
 
 But failure to file does not oust the jurisdiction of Federal Court, 
 
 but leaves it discretional with that Court to proceed 48 
 
 What is a waiver of requirement as to filing ? 48 
 
 Eecord includes depositions and pleadings 49 
 
 Where filed, when Court held in several places in the district. ... 49 
 Record may be filed, on leave, prematurely 49 
 
 — And such filing gives Federal Court jurisdiction to grant pro- 
 visional remedies, but the cause may not be heard till time 
 named in bond has expired 49 
 
 VIII. Eemandment to State Courts. 
 
 Eemandment not reviewable 36, 31, 40 
 
 — Except, perhaps, by mandamus 31 
 
 — But failure to remand is, even though no motion made at 
 Circuit 31 
 
 Qumre, as to appeal from final order of State Court after remand- 
 
 ment 31 
 
 For failure to file record bars a second removal for same cause. ... 35 
 
 Completely reinvests jurisdiction of State Court 35 
 
 What costs are allowable on ? 38, 40, 46 
 
 Text of the act providing for (Section 5) 39-40 
 
 On ground parties improperly or collusively made or joined 40 
 
 Evidence to make out a case for, must be pleaded 40 
 
106 INDEX. 
 
 PAGE 
 
 But failure to file record does not oust jurisdiction, it only leaves 
 it discretional with Federal Court to proceed , 48 
 
 For want of Jurisdiction, see more fully under that title. 
 EEPEAL. 
 
 None, of certain sections of the Revised Statutes, by Act of 1887. . 55 
 
 Express, of certain other sections of the Revised Statutes 56 
 
 REPLEADER. 
 
 Not necessary after removal in suits at common law 45 
 
 — Nor in equity cases where pleading in State Court contains 
 substance of a bill in equity 45 
 
 — But though not necessary, it is often advisable in equity cases. 45 
 Necessary when both legal and equitable relief demanded in suit, 
 
 before removal 45 
 
 Practice when improperly omitted 45 
 
 RESIDENCE. 
 
 Of CoEPOBATiONS and as controlling Jurisdiction. See those 
 
 titles. 
 See Citizenship ; Domicile. 
 
 REVENUE OFFICERS. 
 
 Jurisdiction of suits against, not affected by Act of 1887 55, 56 
 
 REVIEW, BILL OF. 
 
 Time within which it must be filed after service without the State. 51 
 
 REVIVOR, BILL OF. 
 
 Jurisdiction of, only by Court in which original suit was brought. 15 
 
 Not necessary to taking an appeal after death of a party 53 
 
 SERVICE WITHOUT THE JURISDICTION, OR BX PUBLICATION. 
 
 Text of the act (Section 8, Act of 1875) 49-50 
 
 Absent judgment debtor may be thus served in suit to sequester 
 
 his assets , 51 
 
 What is " Property within the district ?" 51 
 
 Only allowed when it is shown by affidavit that personal service 
 
 without the jurisdiction is impracticable 51 
 
 Personal service in another district is good, but safer practice is to 
 
 first obtain an order authorizing it 51 
 
 Time designated for defendant's appearance need not be a rule- 
 day 51 
 
 Time within which bill of review must be filed 51 
 
 But apart from the statute, the right is inherent in Courts of 
 
 Equity to authorize substituted service 51 
 
 See StTBSTiTUTBD Sebyice. 
 SEQUESTRATION. 
 
 In State Court, continues to hold goods after removal 38 
 
 But it seems a Federal Court may authorize its marshal to take 
 
 possession of such goods 39 
 
 Service on absent judgment debtor In suit to sequester his assets. . 51 
 
INDEX. 107 
 
 SOUTHERN DISTRICT OP NEW YORK. page 
 
 Special limitations upon Circuit Court of, as to causes of action 
 
 arising in Nortliern District 14 
 
 Injunction against infringement of patent forbidden, where the 
 
 previous infringements occurred in Northern District 14 
 
 SPECIFIC PERFORMANCE. 
 
 Assignee of contract may sue for, only when assignor could have. 31 
 STATE. 
 
 Qucere, can it be sued by one of its citizens in a Federal Court in a 
 case arising under the Constitution or Laws of the United States ? 9 
 
 STATE COURTS. 
 
 Federal Courts will not usually interfere with property in the cus- 
 tody of 19 
 
 Jurisdiction completely reinvested when case remanded 85 
 
 Retains jurisdiction until facts justifying removal appear on its 
 record 36 
 
 Is not bound to take notice of removal proceedings taken in Fed- 
 eral Courts 36 
 
 Approval by, of bond on removal 37 
 
 No order of, essential to removal from 38 
 
 Attachment or sequestration in, continues to hold goods after re- 
 moval 38 
 
 Injunctions and orders of, prior to removal, remain in force after- 
 ward 39 
 
 But it seems that Federal Court cannot punish for violation, be- 
 fore removal, of such order 39 
 
 Orders of, for examination before trial, must be vacated on removal. 39 
 
 Cannot inquire into questions of Federal j urisdiction, on an appli- 
 cation for removal 43 
 
 Certiorari may issue to, from Federal Courts, to compel return of 
 record of case removed 47 
 
 Qucere, have they j urisdiction of copyright or patent suits involv- 
 ing less than two thousand dollars ? 57 
 
 See Pbopbrty in Custody of State Court ; Removal of 
 Causes, VHI. 
 
 STATE DECISIONS. 
 
 Made in a case before removal, remain in force afterward 39, 46 
 
 On change of venue, are followed by Federal Courts in removal 
 cases 39 
 
 STATE STATUTES. 
 
 Cannot affect Federal jurisdiction, instances 16-1'' 
 
 But Federal Courts take notice of new rights created by, instances. .17- 18 
 
 Excluding corporations from business in a State 37 
 
 Compelling foreign corporations to stipulate not to remove suits. . . 37 
 
 Of limitation, when followed in Federal Courts 18 
 
 Never followed when " manifest wrong " thereby worked 18 
 
108 INDEX. 
 
 PAGE 
 
 Should be complied witli as to form of affidavit on removal 33 
 
 Govern conduct of receivers appointed by Federal Courts 53-54 
 
 STOCKHOLDER. 
 
 Rule as to allegations in bill by, to enforce rights of corporation 
 on ground of refusal of its officers to do so. (See Cokpokations.)43-44 
 
 SUBSTITUTED SERVICE. 
 
 Power to authorize is inherent in Equity Courts and independent 
 
 of Statute 51 
 
 Made upon the attorney who appeared for the absent party in the 
 
 original litigation 52 
 
 Must be made on order of the Court 53 
 
 Practice in obtaining order for 53 
 
 Allowed when bill filed to stay proceedings on common-law side 
 
 of the Court 63 
 
 — And when bill filed seeking new trial on same side of the Court. 53 
 — But not when bill filed to set aside a decree, which makes new 
 
 parties defendants 53 
 
 — Nor on bill filed by receiver when defendants not parties to the 
 
 suit in which he was appointed 53 
 
 If original complainant refuses to appear in cross-bill, his original 
 
 suit may be stayed 53 
 
 See Service without the Jubisdiction, oh by Publication. 
 
 " SUITS OF A CIVIL NATURE." 
 
 As distinguished from " cases " 3 
 
 What are? See Cbbtioeaiii ; Condemnation Pboceedings ; 
 
 Decedent's Estates ; Divobce ; Habeas Coepus ; Mandamus ; 
 
 Pbohibition ; Quo Wabeanto ; Wills. 
 
 SUPPLEMENTAL BILL. 
 
 Jurisdiction of only by the Court in which the original bill was 
 filed 15 
 
 TITLE, BILL TO QUIET. 
 
 State laws giving right to, recognized by Federal Courts 18 
 
 "TRIAL." . - 
 
 Such is argument of a demurrer 30 
 
 But not entry of an order taking bill pro confesso for failure to ap- 
 pear 30 
 
 Such has been held to be the argument of a motion for injunc- 
 tion 31 
 
 Must have begun, actually and in good faith, in State Court, be- 
 fore right to remove is gone 81 ■ 
 
 •' UNDER GRANTS OP DIFFERENT STATES." 
 See Land Gbants peom diffeeent States. 
 
 UNDERTAKINGS. 
 
 Given prior to removal of suit, remain valid afterward 39 
 
INDEX. 109 
 
 UNINCORPORATED ASSOCIATION. iPAeE 
 
 When presumed to be wholly composed of citizens of one State. . 11 
 
 UNION PACIFIC RAILROAD. 
 
 Specially subject to mandamus in United States Courts 3 
 
 UNITED STATES. 
 
 When plaintiffs or petitioners, removal on this ground only by 
 non-resident defendants 36 
 
 VALUE IN DISPUTE. 
 
 See Matter in Dispute. 
 
 VERIFICATION. 
 
 Of aflBdavit on removal should be in accordance with State laws.. 33 
 
 WILLS. 
 
 Federal Courts have no probate jurisdiction 4 
 
 Proceedings to annul a will 4 
 
 State Statutes restricting suits on, cannot impair Federal jurisdic- 
 tion 16 
 
 — Otherwise when they create a new right 17 
 
 Pendency of probate proceedings in State court is no bar to filing 
 
 bill against executor or administrator in Federal Court 19 
 
 See Decedent's Estates.