Removal of causes from 
 state courts to federal 
 courts 
 
 1877
 
 :• ^::i?-:i'i'^rsiii&ii%h: 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LffiRARY
 
 REMOVAL OF CAUSES 
 
 FROM 
 
 STATE COURTS TO FEDERAL COURTS, 
 
 With Forms Adapted to the Several Acts of 
 Congress on the Subject. 
 
 SECOND AND REVISED EDITION. 
 
 BY JOHN F. DILLON, 
 
 Circuit Judge of the Eighth Judicial Circuit, Author of a Treatise 
 ON " MuNicii'AL Corporations," etc. 
 
 ST. LOUIS: 
 THE CENTRAL LAW JOURNAL. 
 
 ISTT.
 
 COPYRIGHT. 
 
 1877. 
 JOHN F. DILLON. 
 
 MAYNARD & THOMPSON, LAW PRINTERS, 
 ST. LOUIS.
 
 PUBLISHERS PREFATORY NOTE. 
 
 The editor of the Southern Law Review requested the 
 author to prepare, for that magazine, a practical paper on 
 the Removal of Causes from State Courts to Federal 
 Courts, under the principal statutes of Congress on that 
 subject. The article was accordingly written, and ap- 
 peared in the Southern Law Review for July, 1876. 
 An extra edition of several hundred copies was sep- 
 arately struck off, and was speedily exhausted. At the 
 request of the present publisher, the author of the Tract 
 has revised and enlarged it, bringing into view more fully 
 the State Court decisions, adding the decisions of the 
 Federal Courts down to date, a Table of Cases and of 
 Contents, an Index and an Appendix of Forms. This 
 will make it more convenient and useful to the profes- 
 sion, for Avhose benefit it was originally written, and i& 
 now republished. 
 
 670Rni
 
 OOI^TIBISrTS. 
 
 JSkctiox 1. The Federal Jiulicial System — Its Growth and Importance. 
 
 Skc. 2. Pnuoipal Statutes on the subject— Acts of 1789. 186G. 1867. 1875; 
 Rev. Stats.. See. 639. 
 
 Sec. 3. Constitutional validity of Removal Acts — Right Protected from 
 Invasion by the States. 
 
 Sec. 4. Essential Elements of the Statutoiy Right of Removal. 
 
 Sec. 5. Judiciary Act. Sec. 12 (Rev. Stats., 639. sub-division 1) — 
 Conditions of Right of Removal thereunder. 
 
 Sec. 6. Act of July 27.1866 (Rev. Stats.. Sec. 639, sub-division 2). 
 Xature of Right thereby conferred. 
 
 ;Sec. 7. Act of March 2. 1867 (Rev. Stats., Sec. 639. sub-division 3)— Na- 
 ture of Right tliereby conferred. 
 
 Sec. S. Act of March 3. 1875 — Nature and Extent of Right thereby given. 
 
 Sec. 9. Nature of Suits that may be removed under above Acts — Prac- 
 tice — Repleader. 
 
 Sec. 10. From what Court removed; — Removal, how enforced — Certio- 
 rari. 
 
 Sec. 11. Value or Amount in dispute, as a condition of Removability. 
 
 Sec. 12. Party entitled to Removal — Corporations — Aliens. 
 
 Sec. 13. Time Avhen Application must be made. 
 
 Sec. 14. Mode of applying — Bond. etc. — Affidavit of Local Intiuence. 
 under Act of 1867. — Petition. 
 
 Sec. 15. Eftect of Petition for Removal on Jurisdiction of State Court. 
 
 Sec. 16. Same on Federal Court. 
 
 Sec. 17. Remanding Causes to State Court.
 
 TABLE OF CASES CITED. 
 
 Ablenian v. Booth, 32. 
 Abranches v. Scliell, 6, 44. 0:5. 
 Adains, Kariahoo v.. 19. 
 Adams Express Co. v. Trego. 54. 
 vEtna InsuraiK-e Co.. Herryford v., 
 
 67, OS. 
 Akerly v. Vilas, 41, 43, 4.5. 53. 54, 
 
 .55, as (n. 107 and 108). 71, 79. 
 Alexandria etc. Railroad Co., 
 
 Washington etc. Railroad Co. 
 
 v.,,25. 
 Allen V. Ryerson, 20, 21. 
 Allin V. Robinson. 37. 
 Amazon Insurance Co., -Jones v.. 
 
 69., 
 American Express Co., Maltz v.. 
 
 50. 
 Ames V. Colorado Central Rail- 
 road Co., 32. 57. 59, GO. 61. 
 Amory v. Amoiy, 48, 63, 68. 
 Andes Insurance Co.. Michigan 
 
 Central Railroad Co. v., .58. 
 Andes Insurance Co., Young v.. 
 
 58, 60. 
 Andrews. Exr.. v. Garrett, 61. 
 Andrews. Jones v., 31. 
 Andrews & Mott. Ex parte, 40. 
 Anonymous (1 Dillon C. C. 298. 
 
 note). 61, 62. 
 Anthon v. Morton, 7. 
 Arredondo, VV^ard v.. 16 (n. 21 and 
 
 22), 17, 18. .52, .53. 
 Artman, Commonwealth v.. 5. 7. 
 Atlas Insurance Co. v. Byrus. 77, 
 
 79. 
 Aurora. West v., 36 (n. 46 and 47). 
 
 37. 40. 52. 67. 
 Austin. Heath v.. 75. lit. 
 
 Baack. Manufacturers' Bank v.. 
 
 49. 51 . 
 Baird v. Byrne. 19. 
 Baltimore City. Barnes v.. 31. 
 Baltimore & Ohio Railroad Co. v. 
 
 Gallahue's Adnn-.. 49. 
 Baltimore & Ohio Railroad Co. v. 
 
 Harris. 49. 
 Baltimore & Ohio Railroad Co.. 
 
 Marshall v.. 49. 
 Bank etc. v. Daniel. 46. 
 Bank v. Deveaux. 31. 
 Bank v. King Bridge Co.. 69. 
 Bank of Omaha v. Douglas County. 
 
 .51. 
 Bank of Yicksburg v. Slocomb. 15. 
 
 31. 
 Barclay v. Levee Commissioners. 
 
 16. 42. 50. 71. 
 Barnes v. Baltimore City, 31. 
 Barney, De Kraft't v.. 45. 
 Barney v. Globe Bank, 37. 50. 
 
 72. 
 Barrow. Shields v.. 31. 
 Barry v. Mercien, 45. 
 Bates. Darst v., 20. 78. 
 Bauman v. Union Paeiflc Railroad 
 
 Co.. 10. 
 Beardsley v. ToiTey, 16, 18, 52. 
 Beardsley, Torrey v.. 37. 
 Beecher & Toncray v. Gillett tt 
 
 King. 25. 38. 
 Beery v. Irick. 16, 24. 54. 
 Bell V. Dix. 7. 45. (iS. 78. 79. 
 Benchley v. Gilbert. 6. 44. 
 Benedict. Williams v.. 39. 
 Beimett v. Butterworth. 46. 
 Bennett. Doremas v.. Mi.
 
 VI 
 
 TABLE OF CASES CITED. 
 
 Benton, Savings Bank v., 52. 63. 
 
 60. 79. 
 Berlin v. Jones. 77. 
 Bigelow V. Forrest, 7. 
 Bigelovv. Tuckerman v.. 31. 
 Billings. "Weeks v.. 37. 
 Bird's Executors v. Cockrem, Re- 
 ceiver, 52. 
 Bixby V. Couse, 17. 20. 21. 23, 24. 
 Blatchford. Coal Co. v.. 15, 16, 17, 
 
 40. 48, 75. 
 Bliss V. Kawson, 24. 
 Bliss, Peyton v., 6. 
 Bliven v. Xew England Screw Co., 
 
 50. 
 Bliven, Xew England Screw Co. 
 
 v.. 72. 
 Blodgett. Wilson v.. 31. 
 Boggs v. Willard. 55. 
 Bondurant. Watson v., 39. 
 Bonnafee v. Williams, 48. 
 Boom Co.. Patterson v., 36, 38. 
 Booth. Ableman v., 32. 
 Boutwell, Galvin v., 19, 75. 
 Bo wen v. Chase, 62. 
 Bowen. Toucey v., 41. 
 Bowerbank. Hodgson v., 71. 
 Breedlove v. Xicolet. 19. 
 Broderick's Will Case, 38, 39. 
 Brown. Gardner v.. 20. 40, 48. 
 Browne v. Strode. 16. 
 Bryant v. Rich. 31. 40, 53, 78. 
 Bryant v. Scott. 24. 
 Bryant. Vannevar v., 24, 31, 40, 53 
 
 (n. 78 and 79). 54, 57. 
 Burdeck v. Hale. 65. 
 Burnham v. Chicago. Dubuque & 
 
 Minnesota Railroad Co.. 24. 
 Burnham. Crawford v.. 46. 
 Burson v. Park Bank, 79. 
 Burts V. Loyd. 39. 
 Bushnell v. Kennedy, 16, 40, 49. 
 Buttenvorth. Bennett v., 46. 
 Buttner v. Miller. 7, 75, 
 Byrne. Baird v., 19. 
 Byrne. Hinckley v., 19. 
 Byrus. Atlas Insurance Co. v., 
 
 77. 79. 
 
 Caldwell. Douglas v., 54. 
 
 Campbell, Scupps v., 42. 
 
 Cape Girardeau & State Line Rail- 
 road Co. V. Winston et al., 20. 
 
 Carrington V.Florida Railroad Co., 
 60. 73. 
 
 Carter v. Treadwell. 48. 
 
 Casanova, Romie v.. 33. 
 
 Case V. Clarke. 48. 
 
 Case et al. v. Douglas et ah, 24, 25. 
 
 Chandler v. Coe. 56. 
 
 Charleston, Weston v., 40. 
 
 Charter Oak Fire Insurance Co. v. 
 Star Insurance Co., 36, 38. 
 
 Chase. Bowen v., 62. 
 
 Chatham National Bank v. Mer- 
 chants' Xational Bank, 18. 51 
 (n. 73&75). 
 
 Cheek, Waggener v., 53, 54. 
 
 Chew, Gaines v., 39. 
 
 Chicago V. Gage, 29 (u. 38 and 39). 
 
 Chicago, Union Nat. Bank y.^ 51. 
 
 Chicago etc. Railroad Co., Fisk 
 v., 51. 
 
 Chicago etc. Railroad Co., Hazard 
 v., 55. 
 
 Chicago etc. Railroad Co. v. Wliit- 
 ton's Admr.. 13, 25. 49. 50, 51. 
 
 Chicago & Alton Railroad Co., 
 People v., 40. 
 
 Chicago. Danville & Vincennes 
 Railroad Co., Osgood v., 27, 
 66. 69, 
 
 Chicago, Dubuque & Minnesota 
 Railroad Co. et al., Burnham 
 v., 24. 
 
 Chicago & Northwestern Railroad 
 Co. V. Chicago & Pacific Rail- 
 road Co., 49. 
 
 Chicago & Northwestern Railroad 
 Co.. McKinley v.. 55. 
 
 Chicago & Northwestern Railroad 
 Co. V. Wliiton. 79. 
 
 Chicago & Northwestern Railroad 
 Co.. Wliiton v., 78, 79. 
 
 Chicago & Pacific Railroad Co., 
 Chicago & Northwestern Rail- 
 road Co. v.. 49.
 
 TABLE OF CASES CITED. 
 
 Vll 
 
 Chicago, Rock Island & Pacific 
 
 Railroad Co., Hatch v., 17. 45, 
 
 .51, 67, 68, 72. 
 Chicago, Rock Island & Pacific 
 
 Railroad Co., Stanlej- v., 68, 
 
 69, 77. 
 Childress v. Emory, 48, 
 Cisco, Viator v., 6. 
 City Bank, Wilson v., 19. 
 City of Charleston, Weston v., 40. 
 Claflin V. Honseman, 32. 
 Clark V. Dick, 7. 
 Clarke, Case v., 48. 
 Clarke v. Mathewson. 48. 
 Clearwater v. Meredith, 15, 31. 
 Clinton & Springfield Railroad Co., 
 
 Scott et al. v., 39, 40, 44, 58. 
 Clippinger v. Missonri Valley Life 
 
 Insurance Co., 75. 
 Coal Co. V. Blatchford, 15, 16, 17, 
 
 40. 48, 75. 
 Cockrem, Receiver, Bird's Exr. 
 
 v., 52. 
 Coe, Chandler v., 56. 
 Coffin, Sweeney v., 18, 52. 
 Cohens v. Virginia, 19, 32 (n. 41 
 
 and 42) . 
 Colorado Central Railroad Co., 
 
 Ames v., 32, 57, .59, 60, 61. 
 Commercial Bank v. Simmons, 51. 
 Commercial and Railroad Bank of 
 
 Vicksburg v. Slocomb, 15, 31. 
 Commonwealth v. Artman, 5, 7. 
 Connor v. Scott, 33, 63. 
 Cook. Dart v., IS. 
 Cook, Davis v., 18. 20. 23, 51. 
 Cook et al., Taylor v., 15. 
 Cooke V. State Xational Bank, 17. 
 
 23, 25, 51. 
 Cooper V. Galbraith, 48. 
 Cooper, The Mayor v.. 7, 9, 13, 
 
 32, 33. 
 Comity Court, Spraggins v., 45. 
 Couse, Bixby v.. 17. 20, 21. 23, 24. 
 Covington Drawbridge Go. v. 
 
 Shepherd et al., id. 
 Cowles V. Mercer County. 50. 
 Craigie v. McArthur, 38. 39, 53, 56. 
 
 Crane v. Reeder, 23, 55, 61, 78. 
 Crawford v. Burnham, 46. 
 Creighton, Green's Admx. v., 48. 
 C^ibbs, Rison v., 36. 
 Critchlow, Galpin v.. 7, 23, 53, 
 
 54, 55. 
 Cromie, m ?*e, 45, 
 
 Cross, Postmaster-General v., 46. 
 Crothers, Webster v., IS, 52, 71. 
 Cummins, Mayor etc. v., 17. 
 Curtis, Home Insurance Co. v., 74. 
 Curtiss, Strawbridge v., 15, 31, 
 Custard. Green v,, 16, 41, 43, 
 
 47, 76. 
 
 Dana, Lamar v., 7. 
 
 Daniel, Bank etc. v., 46. 
 
 D'Arcy, Urtetiqui v., 70. 
 
 Darst v. Bates, 20, 78. 
 
 Dart V. Cook, 18. 
 
 Dart V. McKinney, 42 (n. 52 and 
 53), 43, 53, 54, 71. 
 
 Dart V. Walker, 18, 20, 54, 57, 67. 
 
 Davis V. Cook, IS, 20, 23, 51. 
 
 Da\'is V. Gray, 17. 
 
 Da\is, Home Insurance Co. v., 13. 
 
 Da\is, Wood v., 16, 17, 31, 40, 49. 
 
 De KraflFt v. Barney, 45. 
 j Dennistoun v. Draper, 5, 6, 9, 38, 
 67, 72, 75. 
 
 Deveaux, Bank v., 31. 
 
 Dexter, Mallett v.. 39. 
 
 Dick, Clark v., 7. 
 
 Dickinson. Western Union Tele- 
 graph Co. v., 51, 79. 
 
 Dietz, Payson v., 33. 
 
 Dinsmore v. Philadelphia & Read- 
 ing Railroad Co., 50. 
 
 Dix, Bell v.. 7, 45, 68, 78, 79. 
 
 Dodds, Meadow Valley Mine Co. 
 v., 13, 62. 
 
 Dodge V. Perkins, 48. 
 
 Dbremas v. Bennett, 16. 
 
 Douglas V. Caldwell, 54. 
 
 Douglas et al.. Case et al. v., 24, 25. 
 
 Douglas County, Bank of Omaha 
 v., 51.
 
 Vlll 
 
 TABLE OF CASES CITED. 
 
 Doyle, Hartford Fire Insurance Co. 
 
 v., V^. 
 Draper. Dennistoun v., 5. 6, 9, SS, 
 
 G7. 72. 75. » 
 
 Duncan. McLeod v., 72. 
 Dunlap. Hatlley v.. 13. OS, 74, 77, 79. 
 Dunn. Home IJfe Insurance Co. v., 
 
 55. 79. 
 Dunn. Insurance Co. v.. 13, 53, .54, 
 
 55. .56. 67. 68, 69, 74, 76, 77, 78, 79. 
 Dupont. Muns v.. 46. 68. 
 Durant et al.. Hazard v., 9 (n. 9 
 
 and 10). 16,18, 23, 49, 65, 74. 
 Du Vivier v. Hopkins, 38, 67, 68. 
 Dwight. Pollard, v., 75. 
 D'Wolf V. Eabaud, 48. 
 
 EUernian v. Xew Orleans Railroad 
 
 Co., 29. 78. 
 Ellzey, Hepburn v., 31. 
 Emory, Childress v.. 48. 
 Engle. Stewart v.. 88. 
 Ewing, Suydam v.. 40, 41, 49, 71. 
 Ex parte Andrews & Mott, 40. 
 Ex parte Girard, 16, 17, 18, 37. 
 Ex parte Milligan, 40. 
 Ex parte State Insurance Co. of 
 
 Alabama. 76. 
 Ex parte Turner, 16. 18, 37, 45. 
 Express Co. v. Kountze, 49. 
 Express Co., Maltz v., 50. 
 Express Co. v. Trego, .54. 
 
 Fallis V. McArthur, 18. 
 
 Farmers' etc. Co.,Ketchuni v., 16. 
 
 Farmers' Loan and Trust Co. v. 
 
 Maquillan. 26, 49, 01. 
 Farmers" Loan and Trust Co. et al., 
 
 Turner Bros. v.. 34. 
 Farwell, Insbuch v. 31. 
 Fasnacht v. Frank. 53. 54. 76. 
 Fashnacht, see Fasnacht. 
 Field V. Lownsdale. 18, 20, 21, 52, 
 
 76. 
 Fields V. Lamb, 20, 21, 25. 
 Finn. Miller v., 53. 
 
 Fisk V. Chicago etc. R. R. Co.. 51. 
 Fisk V. Union Pacific R. R. Co., 8, 
 
 9 en. 9 and 10), 18, 23, 41, 43. 45, 
 
 52, 07, 68 (n. 107 and 108), 75, 
 
 78. 
 Fitzhugh, Pratt v. 45. 
 Fleet, Woodson v.. 7. 
 Flox'cnce Sewing 3Iachine Co. v. 
 
 Grover & Baker Sewing Machine 
 
 Co., 24. 
 Florida Railroad Co., Carrington 
 
 v.. 60, 73. 
 Forrest, Bigelow v.. 7. 
 Fouvei-gne v. Xew Orleans, 38. 
 Fowler. Warner v.. 6. 
 Fowlkes V. Fowlkes, 5. 
 Francis. Insurance Co. v., 49. 
 Frank. Fasnacht v., 53, 54, 76. 
 Freeman v. Howe, 32. 
 French v. Hay, 60, 66, 68. 79 (u. 
 
 132 and 133). 
 Friedman. McStay v.. 33. 
 Fuentes v. Gaines, 39. 
 Fuentes, Gaines v., 12, 16, 25, 38,. 
 
 39, 43, 45, 77. 
 
 Gage. Chicago v.. 29 (n. 38 and 39). 
 
 Gaines v. Cliew, 39. 
 
 Gaines v. Fuentes et nl.. 12, 10. 25. 
 
 38, 39, 43, 45, 77. 
 Gaines, Fuentes v., 39. 
 Gaines v. Hennen, 39. 
 Gaines v. New Orleans, 39. 
 Gaines, State v.. 5. 
 Galbraith. Cooper v.. 48. 
 Gallagher. Ober v.. 31. 
 Gallahue's Admr.. Baltimore & 
 
 Ohio Railroad Co. v.. 49. 
 Galpin v. Critchlow. 7. 23. 53. 54. 
 
 55. 
 Galvin v. Boutwell. 19, 75. 
 Garden City Mamifacturing Co. v. 
 
 Smith. 72. 
 Gardner v. Brown, 20, 40. 48. 
 Garrett. Andrews. Exr.. v., 01. 
 Gaughan v. Northwestern Fertil- 
 
 izino; Co.. 5.
 
 TABLE OF CASES CITED. 
 
 IX 
 
 Geyer v. Life Ins. Co., 4S. 
 Gibbons, State v., 44. 
 Gibson v. Johnson, 53. 
 Gilbert, Benchley v., 6, 44. 
 Gillett & King, Beeclier & Toncray 
 
 v.. 25, 38. 
 Gii-ard, Ex. parte, IG, 17, IS, 37. 
 Globe Bank, Barney v., 37, 50, 72. 
 Gorbach, Knickerbocker Life Ins. 
 
 Co. v., 75. 
 Gordon v. Longest, 13, 46 (n. 59 
 
 and 62). 68, 69 (n. 108 and 109), 
 
 74, 76, 77. 79. 
 Goshorn v. Supervisors, 49. 
 Gray, Davis v., 17. 
 Green v. Custard. 16, 41, 43, 47, 76. 
 Green v. L^nited States, 36. 
 Green's Adrax. v. Creigliton. 48. 
 Grover & Baker Sewing Machine 
 
 Co., Florence Sewing Machine 
 
 Co. v., 24. 
 
 Hadley v. Dunlap. 13, 68, 74, 77, 
 
 79. 
 Hagan v. Walker, 31. 
 Hale, Burdeck v., 65. 
 Hall V. Eicketts, 55. 
 Hargroves v. Eedd, 39. 
 Harris, Baltimore & Ohio Railroad 
 
 Co. v., 49. 
 Hartford Fire Insurance Co. v. 
 
 Doyle, 13. 
 Hartford Ins. Co., Whittier v., 53, 
 
 54, 56, 57. 
 Hartshorn v. Wi'igljt, 46. 
 Hatch V. Chicago, Rock Island & 
 
 Pacific Railroad Co., 17^^45, 51, 
 
 67, 68, 72. 
 Hatch V. Preston, 36. 
 Hay, French v., 60, (56, 68, 79 (n. 
 
 132 and 133) . 
 Haynes, Hodgkins v., 20. 
 Hazard v. Chicago etc. Railroad 
 
 Co.. 55. 
 Hazard v. Durant et aL, 9 (n. 9 and 
 
 10). 16, 18. 23. 49, 65, 74. 
 Heath v. Austin. 75. 76. 
 
 Hendren, New York Life Ins. Co. 
 
 v., 32. 
 Hennen, Gaines v., 39. 
 Hepburn v. Ellzey, 31. 
 Ilerryford v. .Vetna Insurance Co., 
 
 67, (>S. 
 Hinckley v. Byrne, 19. 
 Hoadley v. San Francisco, 61. 
 Hobbs v. Manhattan Insurance Co., 
 
 51. 
 Hodgkins v. Haynes, 20. 
 Hodgson V. Bowerbank, 71. 
 Hodgson V. Milward, 5, 7. 
 Holden v. Putnam Fire Insurance 
 
 Co.. 13, 63, 69, 79. 
 Holmes v. Jennison, 40. 
 Home Insurance Co. v. Curtis, 74. 
 Home Insurance Co. v. Davis, 13. 
 Home Life Insmance Co. v. Dunn, 
 
 o5, 79. 
 Hook, Payne v., 38, 39. 
 Hopkins, Du Vivier v., 38, 67, 68. 
 Horn, Lockhart v., 30. 
 Hough v. Western Transportation 
 
 Co., 18, 45, 78. 
 Houseman, Claflin v., 32. 
 Houston, Rice v., 48. 
 Hovey, Milligan v., 7. 
 Howe, Freeman v., 32. 
 Hubbard v. Railroad Co., 16. 
 Hughes, Kellogg v., 53, 54. 
 Hulsecamp v. Teel, 46. 
 Hunter's Lessee, Martin v., 5, 32. 
 
 Imi)erial Fire Insurance Co., Terry 
 v.. 51. 
 
 Indianapolis etc. Railroad Co. v. 
 Risley, 63, 79. 
 
 Indianapolis, Bloomington & Wes- 
 tern Railroad Co. et a?.. Turner 
 Bros, v., 34. 
 
 Insbuch V. Farwell, 31. 
 
 In re Cromie, 45. 
 
 Ill re Girard. 16. 17, 18. 
 
 Ill re Turner, 16, 18, 37, 45. 
 
 Insurance Co. v. Byrus, 77, 79. 
 
 Insurance Co. v. Curtis, 74.
 
 TABLE or CASES CITED. 
 
 Insurance Co. v. Da\is. 13. 
 Insurance Co. v. Doyle, 13. 
 Insurance Co. v. Dunn, 13. 53. .54, 
 
 55. 56. 67. 68. 69, 74, 76, 77, 78, 
 79. 
 
 Insurance Co. v. Francis, 49. 
 Insurance Co. Herrj'iord v., 67, 68. 
 Insurance Co.. Hobbs v., 51. 
 Insurance Co., Holdeu v., 13, 63, 
 
 69. 79. 
 Insurance Co., Jones v.. 69. 
 Insurance Co. v. Massachusetts, 50. 
 Insurance Co., Michigan Central 
 
 Kailroad Co. v., 58. 
 Insurance Co. v. Morse, 13, 78. 
 Insurance Co., Morton v., 51. 
 Insurance Co.. Pax'tridge v., 41. 
 
 43, 67. 
 Insurance Co., Pechner v., 63. 
 Insurance Co., Sayles v., 16, 37, 50. 
 Insurance Co.. Stevens v., 13, 68, 
 
 69, 74. 77, 78, 79. 
 Insurance Co., Terrj' v., 51. 
 Insurance Co., Whittier v., 53, 54, 
 
 56. 57. 
 
 Insurance Co., Young v.. 58. 60. 
 Irick, Beery v., 16, 24. .54. 
 Irsine v. LoA\Ty, 15. 
 
 Jackson v. Twentyman, 19. 
 Jennison, Holmes v.. 40. 
 Joliuson. Gibson v., .53. 
 Johnson v. Monell. 13, 22, 24, 25, 
 
 26, 52, 53. ,54. 63. 
 Johnson. Wetherbee v., 7. 
 Jones V. Amazon Ins. Co.. 69. 
 Jones V. Andrews, 31. 
 Jones, Berlin v., 77. 
 Jones V. League, 48. 
 Jones V. Oceanic Steam Navigation 
 
 Co.. 8, 9. 
 Judge, The. State v., 77-8. 
 Justices. Tlie. v. MurraA% 7, 53, 54. 
 
 Kain v. Texas Pacific Railroad Co., 
 7. 9, 60, 62. 
 
 Kanouse v. Martin, 13, 42, 46, 47, 
 
 67, 68 (n. 107 and 108). 69, 74, 
 
 77, 79. 
 Kanouse, Martin v., 42. 
 Karrahoo v. Adams, 19. 
 Kaufman v. MeXutt, 60. 
 Kawson. Bliss v., 24. 
 Kellogg V. Hughes, 53, 54. 
 Kennedy, Bushnell v., 16, 40, 49. 
 Ketchum v. Farmers' etc. Co. 16. 
 King v. Wilson. 46. 
 King Bridge Co., Baiak v., 69. 
 King of Spain v. Oliver, 51 . 
 Kingsbury v. Kingsbury, 66. 
 Knapp V. Troy & Boston Railroad 
 
 Co., 17, 40, 49, 79. 
 Knickerbocker Life Insurance Co. 
 
 V. Gorbach, 75. 
 Kountze, Express Co. v., 49. 
 
 Ladd V. Tudor, 46, 68. 
 
 Lamar v. Dana, 7. 
 
 Lamb, Fields v., 20, 21, 25. 
 
 Lanz V. Randall et al., 19, 48. 
 
 League, Jones v.. 48. 
 
 Lee V. Lee, 45. 
 
 Lee V. Watson, 46. 
 
 Letson, Louisville Railroad Co. v., 
 
 16, 31, 49. 
 Levee Commissioners. Barclay v.. 
 
 16, 42, 50, 71. 
 Levi. Western L^nion Telegraph 
 
 Co. v., 46 (n. 58. .59 and 62). 
 Lewis V. Smythe, 54. 59. 
 Life Insurance Co., Clippinger 
 
 v.. 75. 
 Life Insurance Co. v. Dunn, 55, 79. 
 Life Insurance Co., Geyer v., 48. 
 Life Insurance Co. v. Gorbach, 
 
 75. 
 Life Insurance Co. v. Hendren, 
 
 32. 
 Life Insurance Co., Morton v.. 51. 
 Life Insurance Co., Shaft v., 79. 
 Liverpool Insurance Co. v. Massa- 
 chusetts, 50. 
 Lockhart v. Hoi'u, 30.
 
 TABLE OF CASES CITED. 
 
 XI 
 
 Longest, Gordon v., 13, 40 (n. 59 
 
 and 62), GS, 69 (n. 108 and 109), 
 
 74, 76, 77, 79. 
 Louisville Railroad Co. v. Letson. 
 
 16, 31, 49. 
 Lownsdale, Field v.. 18. 20, 21, 
 
 52, 76. 
 Lowry, Irvine v.. 15. 
 Loyd, Burts v., 39. 
 Lyall, Matthews v., 67. 69. 
 
 Mack, Stevens v., 6. 
 
 Magee v. Union Pacifle Railroad 
 Co., 9. 
 
 Mahone v. Manchester etc. Rail- 
 road Corp., 62, 67, 78. 
 
 Mallett V. Dexter, 39. 
 
 Maltz V. American Express Com- 
 pany, 50. 
 
 Manchester etc. Railroad Corp., 
 Mahone v., 62, 67, 78. 
 
 Manhattan Insurance Co., Hobbs 
 v., 51. 
 
 Manufacturers' Bank v, Baack. 
 49, 51. 
 
 Maquillan, Farmers' Loan and 
 Trust Co. v., 26, 49, 61. 
 
 Marshall v. The Baltimore & Ohio 
 Railroad Co., 49. 
 
 3Iartin v. Hunter's Lessee, 5. 32. 
 
 Martin v. Kanouse, 42. 
 
 Martin, Kanouse v., 13, 42, 46, 47, 
 67,68 (n. 107 and 108), 69, 74, 
 77, 79. 
 
 Martin, Tapley v., 63. 
 
 Martin v. Taylor, 46. 
 
 Massachusetts, Liverpool Insurance 
 Co. v., 50. 
 
 Mathewson, Clarke v.. 48. 
 
 Matthews v. Lyall, 67, 69. 
 
 Matthews, Wood v., 6, 75. 
 
 Maj-o v. Taylor, 69. 
 
 Mayor, The, v. Cooper, 7, 9, 13, 
 32, 33. 
 
 Mayor etc. v. Cummins. 17. 
 
 Mc Arthur, Craigie v., 38, 39, 53, 56. 
 
 Mc Arthur, Fallis v., 18. 
 
 McBratney v. Usher, 18, 52. 
 McCoy v. Washington County, 50. 
 McDowell, United States v.. 46. 
 McGinnity v. White, 20, 46, 57, 
 
 63. 
 McKean etc. Navigation Co., Wi- 
 
 nans v., 16. 
 McKee v. Raiiis. 7. 
 McKee, United States v., 44. 
 McKinley v. Chicago & Noi'thw^est- 
 
 ern Railroad Co., 55. 
 McKinnej', Dart v., 42 (n. 52 and 
 
 53), 43,' 53, 54, 71. 
 3IcLeod V. Duncan, 72. 
 McNutt, Kaufman v., 60. 
 McStay v. Friedman, 33. 
 Mc Williams, Thacher v., 76. 
 Meadow Valley Mine Co. v. Dodds, 
 
 13, 62. 
 Memphis, Murdock v., 32. 
 Mercer County, Cowles v., 50. 
 Merchants" National Bank, Chat- 
 ham National Bank v., 18, 51 (n. 
 
 73 and 75) . 
 Merchants' and Manufacturers' 
 
 National Bank v. Wheeler, 42, 
 
 61, 63. 
 Mercien, Barrj' v., 45. 
 Meredith, Clearwater v., 15, 31. 
 Merrill v. Petty, 46. 
 Merwin v. Wexel. 18. 
 Meserole v. Union Paper Collar 
 
 Co., 32. 
 Michigan Central Railroad Co. v. 
 
 Andes Insurance Co., 58. 
 3Iiller, Buttner v., 7. 75. 
 Miller v. Finn. 53. 
 Milligan, Ex parte, 40. 
 Milligan v. Hovey, 7. 
 Milward, Hodgson v.. 5. 7. 
 Milwaukee & St. Paul Railway Co., 
 
 Minnett v., 49, 53. 54, 56, 62. 
 Minnett v. Milwaukee & St. Paul 
 
 Railway Co., 49, 53, 54, 56, 62. 
 Minot V, Philadelphia. Wil. & B. 
 
 Railroad Co., 49. 
 Mississippi & Rum River Boom 
 
 Co., Patterson v., 36, 38.
 
 Xll 
 
 TA15LE OF CA8ES CITED. 
 
 Missouri, Kausa?; & Texai^ Kailway 
 
 Co.. Williams v., 49. 
 Missouri Valley Life Insurance 
 
 Co., Clippinger v.. 75. 
 Moftat V. Soley, 15. 
 Monell, Jolnison v.. VS. 22, 24. 25. 
 
 26. 52, 53, 54, 63. « 
 Montalet v. Murray, 19. 
 Morcleoai. Stewart v.. 20. 24, 75. 
 ^lorgan's Heirs v. Morgan, 48. 
 Morse, Insurance Co. v., 13. 78. 
 Morton, Anthon v., 7. 
 Morton v. Mutual Life Insurance 
 
 Co., 51. 
 Muns V. Dupont. 46, 68. 
 Murdock v. Memphis, 32. 
 Murray, Montalet v., 19. 
 Murray v. Patrie. 7. 32. 
 Murray, The Justices v., 7. 53. 54. 
 Mutual Life Insurance Co.. Morton 
 
 V. 51. 
 Myers, United States v., 48. 
 
 Nelson, Roberts v.. 47, iiS. 
 
 Neves v. Scott, 41. 
 
 New England Screw Co.. Bliven 
 
 v., 50. 
 New England Screw Co. v. Bliven. 
 
 72. 
 New Orleans, Fouvergne v., 38. 
 New Orleans. Gaines v.. 39. 
 New Orleans v. Winter, 31. 
 New Orleans etc. Railroad Co.. 
 
 Ellermanv.. 29, 78. 
 New York Life Insurance Co. v. 
 
 Hendron, 32. 
 New York & New Hampshire 
 
 Railroad Co., Pomeroy v., .51. 
 Nicolet, Breedlove v., 19. 
 Northam, Pratt v., 39. 
 Nortliup. Vaughan v.. 39. 
 Northwestern Fertilizing Co., 
 
 Gaughan v.. 5. 
 Northwestern Insurance Comi)any. 
 
 Sayles v., 16. 37, 50. 
 Northwestern Railway Co. v. Chi- 
 cago & Pacific Railwav Co.. 49. 
 
 Nougues. Trafton v., 33 (n. 43 and 
 44), ()4. 
 
 Ober V. Gallagher, 31. 
 
 Oceanic Steam Navigation Co.^ 
 
 .Jones v., 8, 9. 
 Ohio & Mississippi Railroad Co. v. 
 
 Wheeler, 49. 50. 
 Oil Co. V. Ranch, 43, 53. 
 Oliver, King of Spain v., 51. 
 Orner v. Saunders, 40. 
 Osborn v. U. S. Bank, 9, 32, 40. 
 Osgood V. Chicago, Danville & 
 
 Vincennes Railroad Co., 29. 
 
 66, 69. 
 Overman. Parker v., 38, 66, 71. 77. 
 
 Park Bank, Burson v.. 79. 
 
 Parker v. Overman, 38. 66, 71, 77. 
 
 Partridge v. Insurance Co., 41, 
 
 43, 67. 
 Patrie, Murray v., 7. 32. 
 Patterson v. Mississippi & Rum 
 
 River Boom Co.. 36, 38. 
 Payne v. Hook, 38, 39. 
 Payson v. Dietz, 33. 
 Pechner v. Phcenix Insuiance Co., 
 
 63. 
 Pennsylvania v. Quicksilver Mining 
 
 Co., .50. 
 Pennsylvania Railroad Co., Pi(iuig- 
 
 not v., .50. 
 People V. Chicago & Alton Rail- 
 road Co., 40. 
 People V. Superior Court, 63, 79. 
 Perkins, Dodge v.. 48. 
 Peters v. Peters, 20. 
 Peters. United States v.. 32. 
 Petty, Merrill v.. 46. 
 Peyton v. Bliss. 6. 
 Peyton v. Robertson. 46. 
 Philadel])hia etc Railroad Co., 
 
 Dinsmore v., 50. 
 Philadelphia. Wil. c'c B. Railroad 
 
 Co.. Minot v., 49. 
 Ph(enix Ins. Co.. Pechner v.. 63.
 
 TAHLE OF CASES CITED. 
 
 xni 
 
 Plui'iiix Insui-aiiee Co., Stevens v.. 
 13. 68. 69. 74. 77. 78. 70. 
 
 Pluenix Mutual Life Insurance 
 Co., Shaft v.. 70. 
 
 Piijuignot V. Pennsylvania Rail- 
 road Co.. 50. 
 
 Pollard V. Dwiglit. 75. 
 
 Ponieroy v. New York & Xew 
 Hnmpsliire Railroad Co., 51. 
 
 Postmaster-General v. Cross, 4G. 
 
 Potter, Robinson v.. 52. 
 
 Pratt V. Fitzhugh, 45. 
 
 Pratt V. Northani. 39. 
 
 Preston, Hatch v., 36. 
 
 Price V. Sommers, 53. 56. .50. 73. 
 
 Pntnani Fire Insurance Co., Hol- 
 den v.. 13, 63. 60, 79. 
 
 <iuicksilver Mining Co.. Pennsyl- 
 vania v., 50. 
 
 Rabaud, D'Wolf v.. 48. 
 
 Railroad Companies. Thompson 
 v., 40, 43, 48. 49. 
 
 Railroad Company, Ames v.. 32. 
 57,50, 60, 61. 
 
 Railroad Co. v. Andes Insurance 
 Co., 58. 
 
 Railroad Co., Bauman v., 10. 
 
 Railroad Co., Burnham v., 24. 
 
 Railroad Co., Carrington v., 60, 73. 
 
 Railroad Co.. Dinsmore v., 50. 
 
 Railroad Co., Ellerman v.. 29, 78. 
 
 Railroad Co., Fisk v.. 8, 9 (n. 9 
 and 10), 18, 23, 41, 43, 45, 52, 67, 
 68 (n. 107 and 108), 75, 78. 
 
 Railroad Co. v. Gallahue's Admin- 
 istrator, 49. 
 
 Railroad Co. v. Harris, 49. 
 
 Railroad Co., Hatch v.. 17, 45, 51, 
 67, 68, 72. 
 
 Railroad Co., Hazard v.. 55. 
 
 Railroad Co.. Hubbard v., 16. 
 
 Railroad Co., Kaiu v., 7. 9, 60, 62. 
 
 Railroad Co., Knapp v., 17. 40, 
 49, 79. 
 
 Railroad Co. v. Letson. 16, 31, 49. 
 Railroad Co., Magee v., 9. 
 Railroad Co.. Mahone v., 62. 67, 
 
 78. 
 Railroad Co., Marshall v.. 49. 
 Railroad Co.. McKinley v., 55. 
 Railroad Co.. Minot v., 49. 
 Railroad Co., Osgood v., 29, 66,'69. 
 Railroad Co.. People v., 40. 
 Railroad Co.. Piquignot v.. 50. 
 Railroad Co.. Pomeroy v., 51. 
 Railroad Co. v. Risley, 63, 79. 
 Railroad Co.. Scott et al. v., 39, 40, 
 
 44, 58. 
 Railroad Co., Stanley v.. 68. 69. 77. 
 Railroad Co. et ah. Turner Bros. 
 
 v.. 34. 
 Railroad Co., Turton v., 9, 10, 40, 
 
 63. 
 Railroad Co. v. AVheeler. 49, 50. 
 Railroad Co. v. Whiton, 79. 
 Railroad Co., Whiton v.. 78. 70. 
 Railroad Co. v. \Yinston et al., 20. 
 Railway Co., Minnett v., 49, .53. 54, 
 
 56. 62. 
 Railway Co. v. Ramsey, 63. 68, 
 
 69. 77. 
 Railway Co. v. Whitton's Adnu-., 
 
 13, 25. 49, 50. 51. 
 Railway Co., Williams v., 49. 
 Rains, McKee v.. 7. 
 Ramsey, Railway Co. v., 63, 68, 
 
 69. 77. 
 Randall et a/., Lanz v,. 19, 48. 
 Rathbone Oil Co. v. Ranch, 43. 53. 
 Ranch, Rathbone Oil Co. v.. 43, 53. 
 Redd. Hargroves v., 39. 
 Reeder, Crane v., 23, 55, 61, 78. 
 Rice V. Houston, 48. 
 Bich. Bryant v.. 31. 40. 53. 78. 
 Ricketts, Hall v., 55. 
 Rines, Smith v., 16, 17, 18, 52. 
 Risley. Indianapolis etc. Railroad 
 
 Co. v., iVi, 79. 
 Rison V. Cribbs. 36. 
 Roberts v. Nelson, 47. 68. 
 Robertson. Peyton v., 46. 
 Robinson, xUlin v., 37.
 
 XIV 
 
 TABLE OF CASES CITED. 
 
 Robinson v. Potter, 52. 
 Romie v. Casanova, 33. 
 Ryerson, Allen v.. 20, 21. 
 
 Salt Company v. Wilkinson, 6. 
 
 Sands v. Smith, 16, 24, 41, 43. 
 
 San Francisco, Hoadley v., 61. 
 
 Saunders, Orner v., 40. 
 
 Savings Bank v. Benton, 52, 63, 
 69, 79. 
 
 Sayles v. Xorthwestern Insurance 
 Co., 16, 37, 50. 
 
 Schell, Abranches v., 6, 44, 63. 
 
 Scott, Bryant v., 24. 
 
 Scott, Connor v., 33, 63. 
 
 Scott, Neves v., 41. 
 
 Scott et al. V. Clinton & Spring- 
 field Railroad Co., 39, 40, 44, 58. 
 
 Scupps V. Campbell, 42. 
 
 Sewing Machine Companies' Case, 
 12, 16, 20, 21, 23, 24, 31. 
 
 Shaft V. Phoenix Mut. Life Insur- 
 ance Co., 79. 
 
 Shelton v. Tiffin, 48. 
 
 Shepherd et al., The Covington 
 Drawbridge Co. v., 49. 
 
 Shaw, Taylor v., 66, 79. 
 
 Shields v. Barrow, 31. 
 
 Simmons, Commercial Bank v., 51. 
 
 Slocomb, Commercial and Rail- 
 road Bank of Vicksburg v., 15, 
 31. 
 
 Smith, Garden City Manufacturing 
 Company v., 72. 
 
 Smith V. Rines, 16, 17, 18, 52. 
 
 Smith, Sands v., 16, 24, 41, 43. 
 
 Smythe, Lewis v., 54. .59. 
 
 Soley. Moffat v., 15. 
 
 Sommers, Price v., 53, 56, 59, 73. 
 
 Sparrow v. Strong, 45. 
 
 Spraggins v. County Court, 45. 
 
 Stanley v. Chicago, Rock Island, 
 & Pacific Railroad Co., 68, 69, 
 77. 
 
 Star Insurance Co., Charter Oak 
 Fire Insurance Co. v., 36, 38. 
 
 State v. Gaines, 5. 
 
 State V. Gibbons, 44. 
 
 State V. The Judge, 77-8. 
 
 State Insurance Company of Ala- 
 bama, Ex parte. 76. 
 
 State Xational Bank, Cooke v., 17, 
 23, 25, 51. 
 
 Stevens v. Mack, 6. 
 
 Stevens v. Phcenix Insurance Co., 
 13, 68, 69, 74, 77, 78, 79. 
 
 Stevenson v. Williams, 53, 54 (n. 
 80 and 82) , 56. 
 
 Stewart v. Engle, 88. 
 
 Stewart v. Mordecai. 20, 24, 75. 
 
 Strawbridge v. Curtiss, 15, 31. 
 
 Strode, Browne v., 16. 
 
 Strong, Sparrow v., 45. 
 
 Superior Court, People v., 63, 79, 
 
 Supervisors, Goshorn v., 49. 
 
 Suydam v. Ewing, 40, 41, 49, 71. 
 
 Sweeney v. Coffin, 18, 52. 
 
 Tapley v. Martin. 63. 
 Tarver v. Tarver, 39. 
 Taylor v. Cook et al., 15. 
 Taylor, Martin v., 46. 
 Taylor, Mayo v., 69. 
 Taj^lor V. Shaw, 66, 79. 
 Teel, Hulsecamp v., 46. 
 Telegraph Co. v. Dickinson, 51, 79, 
 Telegraph Co. v. Levi, 46 (n. 58, 
 
 59 and 62). 
 Terry v. Insurance Co., 51. 
 Texas Pacific Railroad Co., Kain 
 
 v., 7, 9, 60, 62. 
 Thacher v. Mc Williams, 76. 
 The Judge, State v., 77-8. 
 The Justices v. Murray, 7, 53. 54. 
 The Mayor v. Cooper, 7, 9, 13, 
 
 32, 33. 
 Thompson v. Railroad Companies, 
 
 40, 43, 48, 49. 
 Tiffin, Shelton v., 48. 
 Ton-ey v. Beardsle}% 37. 
 Ton-ey, Beaidsley v., 16, 18, 52. 
 Toucey v. Bowen, 41. 
 Trafton v. Nougues, 33 (u. 43 and 
 
 44), 64.
 
 TABLE OF CASES CITED. 
 
 XV 
 
 Tread well, Carter v., 48. 
 
 Trego, Adams Express Company 
 
 v., 54. 
 Ti'oy & Boston Kailroad Company, 
 
 Knapp v.. 17, 40, 49. 79. 
 Trust Company v. Maquillan, 26, 
 
 49, 61. 
 Trust Company, Turner Bros, v., 
 
 34. 
 Tuekerman v. Bigelow, 31. 
 Tudor, Ladd v., 46, 68. 
 Turner, Ex parte, 16, 18, 37, 45. 
 Turner Bros. v. Indianapolis, 
 
 Bloomington & Western Rail- 
 road Co. et al., 34. 
 Turton v. Union Pacitic Railroad 
 
 Co., 9. 10, 40. 63. 
 Twentj^man, Jackson v., 19. 
 
 Union National Bank v. Chicago, 
 51. 
 
 Union Pacific Railroad Co., Bau- 
 man v., 10. 
 
 Union Pacific Railroad Co., Fisk 
 v., 8. 9 (n. 9, and 10), 18, 23, 41, 
 43, 45, 52, 67. 68 (n. 107 and 108), 
 75, 78. 
 
 Union Pacific Railroad Co.. Magee 
 v.. 9. 
 
 Union Pacific Railroad Co., Tur- 
 ton v., 9, 10, 40, 63. 
 
 Union Paper Collar Co., Meserole 
 v., 32. 
 
 United States, Green v., 36. 
 
 United States v. McDowell, 46. 
 
 United States v. McKee, 44, 
 
 United States v. Myers, 48. 
 
 United States v. Peters, 32. 
 
 United States, Walker v., 46. 
 
 United States Bank, Osborn v., 9, 
 32, 40. 
 
 Urtetiqui v. D'Arcy, 70. 
 
 Usher, McBratney v., 18, 52. 
 
 Vannevar v. Bryant, 24, 31, 40, 53 
 
 (n. 78 and 79) , 54, 57. 
 
 Vaughan v. Northup, 39. 
 
 Victor V. Cisco, 6. 
 
 Vilas, Akerly v., 41. 43, 45, 53, 54, 
 
 55, 68 (n. 107 and 108), 71, 79. 
 Virginia, Cohens v., 9, 32 (n. 41 
 
 and 42) . 
 
 Waggener v. Cheek, 53, 54. 
 
 Walker, Dart v., 18, 20, 54. 57, 67. 
 
 Walker, Hagan v., 31. 
 
 Walker v. United States, 46. 
 
 Ward V. Ai-redondo, 16 (n. 21 and 
 22), 17, 18, 52, 53. 
 
 Warner v. Fowler, 6. 
 
 Washington County, McCoy v., 50. 
 
 Washington etc. Railroad Co. v. 
 Alexandria etc. Railroad Co., 25. 
 
 Watson V. Bondurant, 39. 
 
 Watson, Lee v., 46. 
 
 Webster v. Crothers, 18, 52, 71. 
 
 Weed Sewing Machine Co. v. 
 Wicks et al., 17, 40, 49. 
 
 Weeks v. Billings, 37. 
 
 Wells, Wright v., 47. 69. 
 
 West V. Aurora, 36 (n. 46 and 47), 
 37, 40, 52, 67. 
 
 Western Transportation Company, 
 Hough v., 18, 45. 78. 
 
 Western Union Telegraph Co. v. 
 Dickinson, 51, 79. 
 
 Western Union Telegraph Co. v. 
 Levi, 46 (n. 58, 59 and 62). 
 
 Weston V. City of Charleston, 40. 
 
 Wetherbee v. Johnson, 7. 
 
 Wexel, Merwin v., 18. 
 
 Wheeler, 3Ierchants' and Manu- 
 facturers' Bank v., 42, 61, 63. 
 
 Wheeler, Ohio & Mississippi Rail- 
 road Co. v., 49, 50. 
 
 White, McGinnity v., 20, 46, 57, 63. 
 
 Whiton V. Chicago «& Northwest- 
 ern Railroad Co., 78, 79. 
 
 Whiton, Railroad Co. v., 79. 
 
 Whittier v. Hartford Insm-ance 
 Co., 53, 54, 56, 57. 
 
 Whitton's Admr.. Chicago etc. 
 Railway Co. v., 13, 25, 49, 50, 51.
 
 X^'l 
 
 TABLE OF CASES CITED. 
 
 Wicks et ah. Sewing Mat-hiue Co. 
 
 v.,17, 40, 49. 
 Wilkinson, Salt Company v.. G. 
 Willard, Boggs v., 5.5. 
 Williams v. Benedict, 30. 
 Williams, Bonnafee v., 48. 
 Williams v. Missonri. Kansas & 
 
 Texas Railway Co.. 40. 
 Williams, Stevenson a., 58. 54 (n. 
 
 80 and 82), 5G. 
 Williams v. Williams, .54. 
 Wilson V. Blodgett. 31. 
 Wilson V. City Bank. 19. 
 Wilson, King v., 46, 
 
 Winans v. IMcKean etc. Navigation 
 
 Co., 16. 
 Winston et ah, Cape Giraixlean 
 
 etc. Railroad Co. v., 20. 
 Winter, New Orleans v., 31. 
 Wood v. Davis, 16, 17, 31. 40, 49. 
 Wood V. Matthews, 6, 75. 
 Woodson V. Fleet, 7. 
 Wormley v. Wormley. 16. 
 Wright, Hartshorn v., 46. 
 Wright V. Wells, 47, 69. 
 
 Young V, 
 
 58, 60. 
 
 Andes Insurance Co.,
 
 REMOYAL OF SUITS 
 
 From State Courts to Federal Courts. 
 
 SECTION I. 
 
 THE FEDERAL JUDICIAL SYSTEM ITS GROWTH AXD 
 
 IIVIPOETANCE. 
 
 The Act of September 24, 1789 (1 Stats, at Large, 
 79), styled b}^ way of eminence the Judiciaiy Act, 
 Avas passed the same year in which the Constitution went 
 into eflect, and organized the National or Federal Judicial 
 System, substantially as it exists to-day. No structural 
 changes have since been made in that s^'stem, and consider- 
 ing the complex and highly ai-tificial nature of the Federal 
 jurisdiction, the Judiciary Act is justly to be regarded as 
 one of the most remarkable instances of wise, sao-acious» 
 thoroughly considered legislative enactments in the historj^ 
 of the law. But while the National Judicial System as 
 established by that act reinains without organic chanoes, 
 yet changes of a minor, though important character have been 
 made from time to time. This has been done, however, 
 without disturbing the nice adjustments and skillful arrano-e- 
 ments of the original plan. The system of 1789 is, in form 
 and essence, the system of 1876. If we consider the intri- 
 cate nature of the relations of the Federal and State o-overn- 
 ments ; that each has a judicial system of its own ; that the 
 two classes of courts sit in the same territory, and exercise 
 day by day jurisdiction over the same subjects and the same
 
 4 REMOVAL OF CAUSES. 
 
 persons ; that the judicial system provided hy the Judiciary 
 Act was untried and experimental : that serious conflicts 
 between the State and Federal courts have been almost 
 wholly avoided ; that the Judiciary Act remains, after the 
 lapse of nearly a centurj', almost intact, — it will appear that 
 the admiration with which it has been regarded ))y states- 
 men, lawyers and judges, is not undeserved. And the 
 changes which have been made are those which have been 
 demanded by convenience, by the increase of the population 
 and business of the country, and, during and since the War 
 of the Rebellion, b}^ circumstances brought about by that 
 unanticipated event, and they are not changes made neces- 
 sary by want of foresight in the great minds which devised 
 and enacted the original scheme. The altered condition of 
 the country has made still further changes, or rather enlarge- 
 7nents, of the plan necessary, such as, for example, an inter- 
 mediate court of appeals, for the relief of the Supreme 
 Court and the convenience of suitors, and more judicial 
 force in the districts, etc. ; Init it is not the purpose of this 
 paper to enter upon this topic. 
 
 The amendments to the Judiciary Act made from time to 
 time by Congress concerning the Federal courts, and notably 
 those made during and since the liebellion, have tended 
 uniformly in one direction, namel}^ an enlargement of their 
 jurisdiction. And the recent act of March 3, 1875, in con- 
 nection with the legislation then existing, has amplilied the 
 Federal judicial power almost t9 the full limits of the con- 
 stitution. The history of the Federal jurisdiction is one of 
 constant growth : slow, indeed, during the first half-century 
 and more, but very rapid within the last few years. For 
 various reasons, which we need not stop to indicate, the 
 small tide of litigation that formerly flowed in Federal chan- 
 nels has ssvollen into a mighty stream. Certain it is that of 
 late years the importance of the Federal courts has rapidly 
 increased, and that much, perhaps most, of the great litiga- 
 tions of the country is now conducted in them. This is 
 noticeably so in the Western states. These observations
 
 REMOVAL OF CAUSES. 
 
 have been made, because the}^ are a fitting introduction to the 
 special topic we have phiced at the head of this article, — 
 Removal of Causes from the State Courts. They have, 
 indeed, been suggested by that topic ; for, as -^^ill be seen as 
 we proceed, the limited right in this regard given by the 
 Judiciarv Act has been enlarged from time to time, until a 
 very considerable portion of the contested cases in the Fed- 
 eral courts now reach them through this channel. 
 
 The editor of the Southern Law Review, in conse- 
 quence of the recent changes in the legislation on this im- 
 portant subject, and the uncertainty which many lawyers 
 suppose to surround it in consequence of those changes, 
 has requested the writer to prepare a practical article 
 which shall exhibit the present state of the law concerning 
 the Right to removal and the Mode of making that right 
 available. 
 
 The cognizance over cases removed to the Federal court 
 has sometimes been referred to the «j?/)e?/«/e jurisdiction, on 
 the ground that, as the suit is not instituted in the Federal 
 court by original process, the jurisdiction of that court 
 must be appellate ;^ but Mr. Justice Nelson accurately 
 characterized the jurisdiction in such cases " original juris- 
 diction, acquired indirectly by a removal from the State 
 
 court.'' - 
 
 SECTION II. 
 
 THE PRINCIPAL STATUTES ON THE SUBJECT OF REMOVALS 
 
 ACTS OF 1789, 1866, 1867 and 1875. 
 
 There are some statutes giving the right of removal in 
 
 special cases which we shall only mention generally, such as 
 
 the right to remove causes, civil and criminal, in any State 
 
 court, against persons denied Cii'il Rights f and suits, civil 
 
 1 Martin v. Hunter's Lessee, 1 Wheat. 304, 849, 350. 
 
 2Dennis^toun v. Draper, 5 Blatelif. 33G; Fisk v. U. P. E. R. Co., 6 
 
 Blatchf. 362. 367. 
 
 3U. S. Rev. Stats., sees. 641, 642, construed. State v. Gaines, 2 Woods 
 C. C. 342. (1874) ; Gaughan v. :N'. W. Fertilizing Co., 3 Bissell, 485, (1873) ; 
 Fowlkes V. Fowlkes, 8 Chicago Legal Xews, 41 ; Commonwealth v. Art- 
 man, 3 Grant (Pa.), 436; Hodgson v. Milward,3 Grant (Pa.), 418.
 
 6 EEMOVAL OF CAUSES. 
 
 and criminal, against Revenue Officers of the United States, 
 and against officers and other persons acting under the Reg- 
 istration Lams;^ and suits by ^?zens against Civil Officers of 
 
 4Kev. Stats., title XXVI, "The Elective Franchise." Rev. Stats., 
 sec. 643. 
 
 Act of March 2, 1833 (4 Stats, at Large, 633), known as the ''/orce 
 act."" This act provided for the removal of suits and prosecutions com- 
 menced in a court of any state, against any officer of the United States, 
 for any act done under the revenue laws of the United States, or under 
 color thereof. See. Rev. Stats., sec. 643. This statute, as re-enacted, 
 applies to the removal of revenue cases under " any revenue law of the 
 United States." Rev. Stats., sec. 643. It was pre\'iously held to be in 
 force as to removal of revenue cases, except those arising under the in- 
 ternal revenue system. Peyton v. Bliss, 1 Woolw. 170 (1868), Miller, J. ; 
 Stevens v. Mack, 5 Blatchf. 514 (1867), Benedict, J. 
 
 Construction of act of 1833. see Dennistoun v. Draper, 5 Blatchf. 336, 
 Xelsou, J.; Abranches v. Schell, 4 Blatchf. 256; Wood v. Matthews, 2 
 Blatchf. 370. The removal may be had without regard to the amount in 
 controversy. Wood v. Matthews, 2 Blatchf. 370. 
 
 A suit against an officer of the United States is not removable under 
 the act of 1833 on the ground that the act complained of was done 
 under the instructions of the treasury department. Vietor v. Cisco, 5 
 Blatchf. 128 — but see Rev. Stats., sec. 643. See Benchley v. Gilbert (Act 
 of July 13, 1866, sec. 67), 8 Blatchf. 147; Salt Co. v. Wilkinson, S 
 Blatchf. 30. 
 
 ■ Cases arising under direct tax law are removable under act of 1833. 
 Peyton v. Bliss, 1 Woolw. 170, Miller, J. 
 
 What are '^revenue laws " under the act of March 2, 1833? That Act 
 extends to an action in the State court against a postmaster for a wrong- 
 ful refusal to deliver a letter to the plaiutiflf, and such an action was held 
 to be removable into the Federal court. Warner v. Fowler, 4 Blatchf. 
 311 (1859), IngersoU, .1. » 
 
 An action of slander begun in a State court against a collector of cus- 
 toms, for words spoken while in tlie discharge of his official duty and 
 explanatorj' of it. may be transferred to the Federal court under the 
 "force act" of March 2,1833 (4 Stats, at Large, 633), which provides, 
 "that any case where suit or prosecution shall be commenced in a 
 court of any state against any officer of the United States, for or on ac- 
 count of any act done under the revenue laws of the United States, or 
 under color thereof," may be removed by the defendant to the Federal 
 court. The question arose on a motion to remand ; and as it appeared 
 from the petition for the removal that the words complained of were 
 .spoken by the defendant, while in the discharge of his official duties as 
 collector, and in connection with a seizure of goods for an alleged viola- 
 tion of tlie revenue laws (which fact the motion to remand necessarily 
 admitted to be true) , the court held that words thus spoken were to be
 
 REMOVAL OF CAUSES. 7 
 
 the United States under specified circumstances ; '' and suits 
 against certain Federal Corporations, or their members as 
 such memljers, may be removed upon verified petition, 
 " statino; that such defendant has a defense arisino- under 
 or by virtue of the Constitution or of any treaty or law of 
 the United States."*^ 
 
 This act is not repealed by the act of March 3, 1875.^ 
 It applies, in its true construction, only to corporations 
 
 considered, under the statute, as an act clone under the revenue laws of the 
 United States. Woods, Circuit Judge, says: '• Words spoken in connec- 
 tion with tlie act of seizure, and in explanation or justitication tliereof, 
 become part of the act, and togetlier with tlie seizure form one trans- 
 action." Buttner v. Miller, 1 Woods C. C. 620 (1871). 
 
 Act of March 3, 1863 (12 Stats, at Large, 757), and act of March 2, 
 1867, as to removability of suits for acts done during the late rebellion 
 under Federal authority. See Milligan v. Hovey, 3 Bissell, 13; s. C, 3 
 Ch. Legal News, 321; Clark v. Dick (limitation), 1 Dill. C. C. 8; Wood- 
 son V. Fleet, 2 Abb. U. S. 15; Bigelow v. Forrest (ejectment suit not re- 
 movable), 9 Wall. 339 (1869) ; Murray v. Patrie (removal after judg- 
 ment) , 5 Blatchf . 343 (1866) , reversed in The Justices v. Murray, 9 Wall. 
 274 (1869). This last case holds that so much of the 5th section of the 
 Act of March 3 (1863), as provides for the removalof a judr/ment in a State 
 court, where the cause was tried by a jury, for re-trial on the facts and 
 law in the Circuit court, is in conflict with the seventh amendment of the 
 Constitution, and void. McKee v. Kains, 10 Wall. 22; Galpin v. Critch- 
 low, 112 Mass. 341 (1873); Wetherbee v. .Johnson, 14 Mass. 412; The 
 Mayor v. Cooper, 6 Wall. 247; Lamar v. Dana, 10 Blatchf. 34; Bell v. 
 Dix, 49 N. Y. 232; Anthon v. Morton, 15 Am. Law Keg. (N. S.), 556 ; 
 Hodgson V. Milward, 3 G-rant (Pa.), 418. Criminal case can not be re- 
 moved before indictment found in the State court. Commonwealth v . 
 Artman, 3 Grant (Pa,), 436. 
 
 5Kev. Stats., sec. 644. 
 
 6 Act of July 27, 1868. (15 Stats, at Large, 227; Eev. Stats., sec. 640.) 
 This statute, as found in sec. 640 of the Kevised Statutes, is as follows : 
 
 "Any suit commenced in any court other than a Circuit or District court 
 of the United States against any corporation other than a banking cor- 
 poration, organized under a law of the United States, or against any 
 member thereof as such member, for any alleged liability of such corpo- 
 ration, or of such member as a member thereof, maybe removed, for trial, 
 in the Circuit court for the district where such suit is pending, upon the 
 petition of such defendant, verified by oath, stating that such defendant 
 has a defense arising under or by virtue of the Constitution or of any 
 treaty or law of the United States. Such removal, in all other respects, 
 shall be governed by the provisions of the preceding section." 
 
 7 Kain v. Texas Pacific R. R. Co., 3 Cent. L. J. 12, Duval, J.
 
 8 REMOVAL OF CAUSES. 
 
 orffjinizcd uiitloi' ;i law of Confjress, and does not include 
 national banks, which are expressly excepted, nor corpora- 
 tions created by foreign governments or by the several 
 states.** 
 
 Under this act Mr. Justice Nelson decided at the circuit 
 two important points, which we notice, as they illustrate 
 more or less questions which arise under other removal acts, 
 and particularly the act of March 3, 1875. He held: 1st. 
 Where oiie or more of the defendants have presented a peti- 
 tion for removal conforming to the act, and thus initiated 
 the removal, it is not competent tor the State court to take 
 any proceedings in the cause, other than to perfect the re- 
 moval, as the other defendants may appear and present their 
 petitions, which they may do at different times. 2d. That 
 the joining of defendants in a suit, not within the limitations 
 of the act, with those vvho are, can not have the effect to defeat 
 the Federal jurisdiction. He adds : "If this were permitted, 
 the privilege extended to parties setting up a right under 
 the Constitution and Laws of the United States, would, in 
 most, if not in every instance, be defeated," and " most of 
 these removal acts, depending principall}^ upon the subject- 
 matter, and intended to secure the interpretation of the Con- 
 stitution and Laws of the United States, at the original 
 hearing, to its own judiciary, would be futile and worthless." 
 In such cases, " if these outside parties are deemed material, 
 or are really material, to a complete remedy in behalf of the 
 plaintirt", they must be regarded as subordinate and inci- 
 dental to the princii)al litigation in respect to which the act 
 of Congress has interposed the reniedj' of removal. In this 
 way the right of the parties to have their defense, under the 
 Constitution or Laws of the United States, tried in the Fed- 
 eral courts, is secured : and, at the same time, the remedy 
 of the plaintiff is unimpaired."'' 
 
 ^. Jones V. Oceank- Steam Xav. Co., 11 Blatchf. 40G (1873). 
 
 yPisk V. Union Pacific R. R. Co.. 8 Blatchf. 243, 248 (1871). Tlie act of 
 July 27, 1868 (Rev. Stats. 640), held to provide only for a case in which 
 the federal corporation or member thereof was the sole defendant. Haz-
 
 KEMOVAL OF CAUSES. ^ 
 
 A petition for removal under this act must state 
 that the corporation or member thereof applying for 
 removal has " a defense arisino- under or bv virtue of 
 the Constitution of the United States or some treaty or law 
 of the United States ;" but it need not state what the defense 
 is, nor the facts constituting it ; — this is a matter for deter- 
 mination in the Federal court, not on motion to remand, 
 but on formal pleadings, or pleadings and proof. ^" 
 
 The important acts of general operation as to removals, 
 and which relate to cases that daily arise, are what is known 
 as the 12th section of the Judiciary Act ; the act of July 27, 
 
 arcl V. Durant ct al., 9 K. I. G02. 609 (1868) . by Potter. J. But it was decided 
 otherwise in Fisk v. Union Pacitic Railroad Co., 6 Blatchf. 862; s. c. 8- 
 ib. 243, 299; and this latter is, undoubtedly, the true construction of the 
 act on this point. 
 
 10 Jones V. Oceanic Steam Xav. Co., 11 Blatchf. 406. See on this point 
 The Mayor v. Cooper, 6 Wall. 247 ; Dennistoun v. Draper, 5 Blatchf. 336, 
 Nelson, .J. ; Turton v. Union Pacitic R. R. Co., 3 Dillon, C. C. 366, Miller, 
 J. Compare :Magee v. U. P. R. R. Co., 2 Sawj'er, 447, Hillyer, J. ; Haz- 
 ard V. Durant et al., 9 R. I. 602, before Potter, J. ; Kain v. Texas Pacitic 
 R. R. Co. (East. Dist. Texas, Duval, J.), 3 Cent, L. J. 12 (1875) ; Fisk v. 
 U. P. R. R. Co.. 8 Blatchf. 243; Ih. 299. Under this act, Hillyer, J., de- 
 cided that the fact, that the corporation (the Union Pacific Railroad Co.) 
 was one organized under a law of the United States, is not enough to 
 authorize the transfer of a cause to the Circuit court of the United States. 
 The action was one for a personal injury to the plaintiff"; and it appearing 
 that the only defense made by the answer was in denial of the imputed 
 negligence, the decision of which depended entirely upon common-law 
 principles, and not upon the construction of any act of Congress, the 
 cause was, on motion, remanded to the State court. Magee v. U. P. R. 
 R. Co., 2 Sawyer, C. C. 447 (1873). Under the same state of facts, Mr. 
 Justice Miller has held precisely^he other way. Turton v. U. P. R. R. 
 Co.. 3 Dillon. C. C. 366 (1875). The question is a close one; and the sug- 
 gestion presents itself, if in every suit against a federal corporation, 
 such a corporation necessarily has a defense under a law of the United 
 States, because it is a corporation organized under a law of the United 
 States, why did Congress not unconditionally provide for the transfer of 
 all suits, without requiring a verified statement that they have " a defense 
 arising under or l)y virtue of the Constitution or a treaty or a law of the 
 United States?" As bearing on this subject, see Osboru v. U. S. Bank, 9 
 Wheat. 738; Cohens v. Virginia. 6 Wheat. 264; Hazard v. Durant et al., 
 9 R. I. 602 ; Kain v. Texas Pacific R. R. Co., 3 Cent. L. J. 12 (1875) ; Fisk 
 v. Union Pacific R. R. Co., 6 Blatchf. 362; s. c. 8 id. 243, 299. The view
 
 10 REMOVAL OF CAUSES. 
 
 18()(),'Uhe act of March 2, 18l)7,'- known as the "prejudice 
 or local influence act," and lastly the act of March 3, 1875.^'^ 
 This last named act was passed since the Revised Statutes, 
 and consequently is not to be found therein. The 12th sec- 
 tion of the Judiciary Act, the act of July 27, 1866, and of 
 Mai-ch 2, 1867, above mentioned, although technically re- 
 pealed by the Revised Statutes of the United States, are 
 substantially re-enacted in the 639th section thereof. These 
 statutes are the foundation of the law on the subject of 
 removals on the grounds therein provided for, and the prin- 
 cipal purpose of this article is to give a reading on those 
 statutes, or, in other words, an exposition of their meaning 
 in the light of the adjudications which have been made under 
 them. 
 
 The text of these statutes is so essential to an understand- 
 ing of the subject, that we reproduce, for convenience, the 
 more material portions of them in a note.^^ 
 
 of Mr. .Justice Miller in tlie case of Turton, supra, derives strong support 
 in the consideration that, under its charter, this corporation may sue and 
 be sued originally in the Circuit court, without reference to citizenship 
 or otlier ground of jurisdiction (Baunian v. Union Paeitio R. R. Co., 3 
 Dillon. 3()7). and jurisdiction by removal is but the exercise of original 
 jurisdiction acquired in this manner. Ante, sec. 1. 
 
 11 14 Stats, at Large, 306. 
 
 12 14 Stats, at Large. 55S. 
 
 i3Actsof 1875, p. 470. 
 
 1* Section 030 of the Revised Statutes is as follows: -Any suit com- 
 menced in any State court, wherein the amount in dispute, exchisive of 
 costs, exceeds tlie sum or value of five hundred dollars, to be made to 
 appear to the satisfaction of said court, may be removed foi- trial into 
 the Circuit court for the district wlierS such suit is pending, next to be 
 held after the tiling of tlie jjctition for such removal hereinafter men- 
 tioned, in tlie cases and in the manner stated in this section. 
 
 •• First. Wlieu the suit is against an alien or is by a citizen of the state 
 wherein it is brought, and against a citizen of another state, it may be 
 removed on the petition of such defendant, filed in said state court at 
 the time of entering his appearance in said State court." [This is, sub- 
 stantially, section 12 of the .Judiciary Act.] 
 
 •• Second. When the suit is against an alien and a citizen of the state 
 wherein it is brought, or is by a citizen of such state against a citizen of 
 the same, and a citizen of another state, it may be so removed, as against 
 said alien or citizen of another state, upon the petition of such defend-
 
 REMOVAL OF CAUSES. 11 
 
 SECTION III. 
 
 VALIDITY OF THE REMOVAL ACTS RIGHTS PROTECTED FROM 
 
 INVASION OR DENIAL BY THE STATES. 
 
 The power of Congress to authorize the transfer of cases, 
 to which the Federal judicial power conferred by the Consti- 
 tution extends, from the State courts to the Federal courts, 
 has been frequently declared by the Supreme Court, and the 
 constitutionality of the removal acts of 1789, 1833, 1863, 
 
 ant, filed at any time before the trial or final liearing of tlie cause, if, so 
 far as it relates to him, it is brought for the purpose of restraining or 
 enjoining him, or is a suit in which there can be a final determination of 
 the controversy so far as concerns him, without the presence of the other 
 defendants as parties in the cause. But such removal shall not take 
 away or prejudice the right of the plaintiff to proceed at the same time 
 with the suit in the State court, as against the other defendants." [This 
 is, substantially, the act of July 27, 1866.] 
 
 " Third. When a suit is between a citizen of the state in which it is 
 brought, and a citizen of another state, it may be so removed on the 
 petition of the latter, whether he be plaintitt" or defendant, filed at any 
 time before the trial or final hearing of the suit, if before or at the time 
 of filing said petition he makes and files in said State coui't an atfidavit 
 stating that he has reason to believe, and does believe that, from preju- 
 dice or local infiuence, he will not be able to obtain justice in such State 
 com-t." [This is, substantially, the act of March 2, 1S67.] 
 
 Section 639 of the Revised Statutes continues as follows: " In order to 
 such removal, the petitioner in the cases aforesaid must, at the time of 
 filing his petition therefor, otter in said State court good and sufiicient 
 siQ'etj^ 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, tes- 
 timony and other proceedings in the cause, or, in said cases where a cit- 
 izen 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 further in the cause against 
 the petitioner, and any bail that may have been originally taken shall be 
 discharged. Wlien the said copies are entered as aforesaid in the Circuit 
 court, the cause shall there proceed in the same manner as if it had been 
 brought there by original process, and the copies of pleadings sliall have 
 the same force and effect, in every respect and for everj^ puipose. as the 
 original pleadings would have had by the laws and practice of the comts 
 of such state if the cause had remained in the State court."
 
 12 HKMOVAL OF CAUSES. 
 
 186() and 1867, is established beyond question. " The va- 
 lidity of this legislation," says Mr. Justice Field, "is not 
 open to serious question, and the provisions adopted have 
 been recognized and followed, with scarcely an exception, 
 by the Federal and State courts since the establishment of 
 
 the government.' ^'^ 
 
 Aa of March 3, 1875. Tlie second and third sections of this act in 
 rehition to the removal of actions are as foUows: •* § 2. That any suit of 
 a civil nature, at law or in equity, riow pendino- or hereafter brought la 
 any State court, where tlie matter in dispute exceeds, exclusive of costs,. 
 the sum or value of five hundred dollars, and arising under the Consti- 
 tution or laws of the United States, or treaties made, or Avhich shall he 
 made, under their authority, or in which the United States shall be 
 plaintiff or petitioner, or in which there shall be a controversy between 
 citizens of difterent states, or a controversy between citizens of the same 
 state claiming lands under grants of difterent states, or a controversy 
 between citizens of a state and foreign states, citizens or subjects, either 
 party may remove said suit into the Circuit court of the United States for 
 the proper district ; and when in any suit mentioned in this section there 
 shall be a controversy which is wholly ])etween citizens of difterent 
 states, and which can l)e fully determined as between them, then either 
 one or more of the plaintifts or defendants, actually interested in such 
 controversy, may remove said suit to the Circuit court of the United 
 States for the proper district." 
 
 " § 3. Benioval — Proceedimjs. — That whenever either part}', or any one 
 or more of the plaintifts or defendants entitled to remove any suits men- 
 tioned in the next preceding section, shall desire to remove such suit 
 from a State court to the Circuit court of the United States, he or they 
 may make or file a petition in such suit in such State court before or at 
 the term at which said cause could be first tried and before the trial 
 thereof, for the removal of such suit into the Circuit court to be held in 
 the district where such suit is pending, and shall make and file therewith 
 a bond, with good and sufficient suretj'. for his or their entering in such 
 Circuit court, on the first day of its then next session, a copy of the record 
 in such suit, and for paying all costs that may be awarded by the said 
 Circuit court, if said court shall hold that such suit was wrongfully or 
 improperly removed thereto, and also for there appearing and entering 
 special bail in such suit, if special bail was originally requisite therein. 
 It shall then be the duty of the State court to accept said petition and 
 bond, and i)n>ceed no further in such suit, and any bail that may have 
 been originally taken shall be discharged; and the said copy being en- 
 teretl as aforesaid in said Circuit court of th<^ United States, the cause 
 shall then proceed in the same manner as if it had been originally com- 
 menced in the said Circuit court,*" etc., etc. 
 
 15 Gaines v. Fuentes et al., U. S. Sup. Court, Oct. Term, 1875, 3 Cent. L. J. 
 371 ; s. c. 2 Otto. 10. See also Sewing Machine Companies' Case. 18 WalL
 
 REMOVAL OF CAUSES. 13 
 
 111 this couiiection, it may also he ohserved that the riiiht 
 to remove cases into the Federal court, when the terms ui)on 
 which the right is given by the acts of Congress in that 
 behalf are complied with, can not be defeated by state leg- 
 islation. Therefore, a State statute which allows an insur- 
 ance company to do business in the state only on condition 
 that it will agree not to remove suits a<>;ainst it to the Fed- 
 eral courts, is unconstitutional, and such an agreement, 
 though entered into by the company, is void.^*' 
 
 SECTION IV. 
 
 MATERIAL ELEMENTS OF THE RIGHT, AS GIVEN BY THE 
 PRINCIPAL STATUTES. 
 
 The material elements of the statutes on this subject, 
 it will be perceived, are the nature of the suitf< which 
 may be removed ; the amount or value in dispute ; i\\Q partiei-^ 
 to the suit, and in this connection the party entitled to the 
 removal ; the time when the application must be made ; the 
 mode of making the application, and herein of the surety in- 
 bond, etc., required, and the effect on tlie jurisdiction of the 
 State court and of the Federal court of a i)roper application 
 to remove a cause which is removable. 
 
 553; Johnson v. Monell. 1 Woolw. 394; Meadow Valley Co. v. Dodds. 7 
 Nev. 143; Chicago etc. Railway Co. v. Whitton's Adnu-., 13 AVall. 270; 
 The Mayor v. Cooper, 6 Wall. 247. 
 
 16 Insurance Co. v. Morse, 20 Wall. 445. See also Insurance Co. v. Dunn. 
 19 Wall. 214; Gordon v. Longest. 16 Pet. 97; Kanouse v. Martin. 14 How. 
 23; s. C, 15 How. 198; Stevens v. Phoenix Insurance Co., 41 N. Y. 149; 
 Holden v. Putnam Insurance Co., 46 N. Y. 1 ; Hadley v. Dunlap. 10 Ohio 
 St. 1. Home Insurance Co. v. Davis. 29 Mich. 238, is inconsistent with 
 Insurance Co. v. Morse, supra. In Hartford Fire Ins. Co. v. Doyle (West. 
 Dist. Wis., Hopkins. J.), 3 Cent, L. J. 41, an act of the legislature of the 
 state, making it the duty of the secretary of state to revoke licenses of 
 companies for removing suits to Federal courts, was held void, and such 
 revocation restrained by injunction.
 
 14 REMOVAL OF CAUSES. 
 
 SECTION V. 
 
 TiiK 12tii section of the judiciary act. 
 
 Before entering- in detail upon the scvenil elements of the 
 removal enactments, it is advisable to advert to some gen- 
 eral considerations touching these several statutes. 
 
 We commence with section 12 of the Judiciary Act. The 
 reader may recur to its language as re-enacted in substance 
 in the Revised Statutes, given in a note to a preceding sec- 
 tion ; and it is important to remember that from 1789 until 
 the act of July 27, 18G(3, above mentioned, the 12th section 
 of the Judiciary Act Avas the only statute authorizing the 
 removal of causes from the State courts to the Circuit court 
 of the United States, on the ground of citizenship of the 
 parties. 
 
 Section 12 of the Judiciary Act, omittingthe case of aliens, 
 authorized the removal by the defendant (under limitations 
 therein mentioned), where the suit is commenced in the 
 State court " hij a citizen of the state in ichich the suit is 
 hrouglit, against a citizen of another state.'' That is, if the 
 suit is by a resident plaintiff, the non-resident defendant 
 may have it removed ; ])ut the resident plaintiff could not. 
 Under section 11 of the Judiciary Act as to original suits in 
 the Circuit court, a non-resident plaintifi' might sue in the 
 Circuit court a resident defendant; but if the non-resident 
 plaintiff elected to sue in a State court, section 12 of that 
 act ii'ave neither party the right to remove the cause from the 
 State court to a court of the United States. The plaintiff was 
 not Driven the right, because he had voluntarily selected the 
 State court in which to bring his action ; the defendant was not 
 iriven the ri^ht, because it was not supposed that lie would 
 have anv orounds to object that he was sued in the courts 
 of his own state. So that the right of removal by the 12th 
 section of the Judiciary Act is limited to the non-resident 
 citizen when sued by a resident plaintiff in the courts of the 
 state. By section 11 of the Judiciary Act, the Circuit court.
 
 EEMOVAL OF CAUSES. 15 
 
 has jurisdiction when the suit is between a citizen of the 
 state in which it is brought and a citizen of another state. 
 This was construed by the courts to mean that, if there were 
 several phiintifts and several defendants, each one of each 
 class must possess the requisite character as to citizenship.^^ 
 For example, a citizen of New York and a citizen of Geor- 
 gia could not join as plaintiffs in suing in New York a citi- 
 zen of Massachusetts, if found in New York, because the 
 plaintiffs were not each competent to sue ; for the citizen of 
 Georgia could not, under section 11 of the Judiciary Act, 
 sue a citizen of Massachusetts in New York.^* Some of 
 the more important cases touching the jurisdiction of the 
 Circuit court under the 11th section of the Judiciary Act, 
 and concerning the effect of the act of 1839 (5 Stats, at 
 Large, 321), which relates to suits commenced in the Cir- 
 cuit court, are referred to in the note, as they have a bear- 
 ino- on the construction of the 12th section.^" 
 
 17 Strawbridge v. Curtiss, 3 Cranch, 267; Coal Co. v. Blatchford. 11 
 Wall. 172. 
 
 18 Moffat V. Soley, 2 Paine, C. C. 103. This restriction on the jurisdic- 
 tion of the Federal courts is removed by the act of March 3, 187Ji, and 
 now these courts would have jurisdiction of such a suit as that men- 
 tioned in the text. 
 
 19 The case of the Commercial Bank v. Slocomb, 14 Pet. 60 (except so 
 far as it has been since oveiTuled as to the suability of corporations in the 
 Federal courts), holds, and only holds, that under the Judiciary Act the 
 jurisdiction of the Circuit court is defeated if some of the defendants are 
 citizens of the same state with the plaintiff; and that this principle was 
 not changed by the act of February 28, 1839. Same principle affirmed, 
 at the same term, in a case rightly decided. Irvine v. Lowry, 14 Pet, 293v 
 See. also, Clearwater v. Meredith, 21 How. 489. In Taylor v. Cook et 
 al.. 2 McLean, 516, the plaintiffs were citizens of New York, and brougiit 
 suit in the Circuit court of the United States in Illinois against Cook, a 
 citizen of Illinois, and Spaulding, a citizen of Missoxiri, who entered a 
 volimtary appearance, and the question was, whether the court had juris- 
 diction, and, aided by the act of 1839, it was held that it had. Judge 
 McLean, in delivering his opinion says, arguendo, that prior to the act of 
 1839, and under the 11th section of the Judiciary Act limiting the juris- 
 diction to suits between " a citizen of the state wliere the suit is brought 
 and a citizen of another state,'" as construed, " the court could not take 
 jurisdiction of the case ; for as between the plaintifts who are citizens of 
 Xew York, and the defendant, Spaulding, who is a citizen of Missouri,
 
 1(> REMOVAL OF CAISES. 
 
 But it sliould be honio in mind th:it in c-i.^-es remo ed 
 IVoni the State courts the jurtsdictwu of the Oir<mit court is 
 dependent upon the act under vhich the suit is removed, and 
 not upon the legishition which confers jurisdiction upon that 
 court in cases originally l)rought therein ; and therefore the 
 restrictions on the jurisdiction in the 11th section of the 
 Judiciary Act have no application to cases removed under 
 the 12th section of that act."-'^ 
 
 Under section 12 of the Judiciary Act regulating remov- 
 als, it is settled that a cause can not ])e removed there- 
 under unless cdl the defendants ask for it : that to bring the 
 case within the act cdl the plaintiffs must be citizens of the 
 state in which suit is brought, and all of the defendants 
 must be citizens of some other state or states.'-^ But this 
 rule, we may remark in passing, does not apply to persons 
 who are mere nominal or formal parties. - 
 
 the court could exercise no jurisdiction in the state of Illinois; because 
 in that case neither party would reside in the state where suit is brought." 
 But see contra, the observations, arrjiiendo, of Wayne, J., in Louisville 
 Rai.lroad Company v. Letson, 2 Howard, on pp. 553, 554. in which he 
 concludes that it is not necessary under the Judiciary Act that all of the 
 defendants should be citizens of the same state, provided none of them 
 are citizens of the same state with the plaintitl". (See infra, sec. 8.) The 
 joinder of a defendant not served, and who does not api)ear, who is a 
 citizen of the same state with the plaintift", does not defeat the junsdic- 
 tion of the Circuit court; at all events, it does not since the act of 1839. 
 Doremas v. Bennett, 4 McLean. 224. But the joinder of such a defend- 
 ant who is sened, if he be not a mere nominal defendant, does defeat 
 tlie jurisdiction ; at all events, it did prior to the act of March 3, 1875. 
 Ketchum v. Farmers* etc. Co., 4 McLean. 1 : Coal Co. v Blatcliford, 11 
 Wall. 172; Sewing Machine Co. Case. 18 Wall. 553. 
 
 -'"'fireen v. Custard. 23 TIow. 484: Barclay v. Levee Commission- 
 ers. 1 Woods C. C. 254; Bushnell v. Kennedy. 9 Wall. 387: Sands v. 
 Smith. 1 Dillon. 293. 297: Sayles v. N. W. Ins. Co. 2 Curtis. C. C. 212; 
 Gaines v. Fuentes, U, S. Sup. Court. Oct. term. 1875. 2 Otto. 10. 3 Cent. 
 L. J. 271 : Winans v. McKean. etc.. Nav. Co. 6 Blatchf. 215. 
 
 •■'I Beardsley v. Torrey. 4 Wash. 286. (1822) ; Waid v. Arredondo. 1 
 Paine. 410 (1825) : Hubbard v. R. K. Co., 3 Blatchf. 84; s. C. 25 Yt. 715, 
 (1853): Beery v. Irick. 22 Gratt. 484; £a: por«e Girard. 3 Wall. Jr. 263; 
 Smith V. Kines. 2 Sumn. 330; Hazard v. Durant. 9 R. I. 602; lure 
 Turner. 3 Wall. Jr. 260; Ih. 203. 
 
 ■" Browne V. Strode. '5 Cranch. 303: Wormley v. Worndey. 8 Wlieat. 
 421: Ward V. Arredondo. s?/pr« ; Wood v. Da^^s. 18 How. 467. Who are
 
 REMOVAL OF CAUSES, 17 
 
 Omitting the case of aliens, it will be percei\'ed that the 
 12th section of the Judiciary Act (now Rev. Stat., Sec. 
 639, siil)-di vision 1), gave the power of removal only under 
 the tollowing circumstances : 
 
 1. The plaintiffs, or if more than one, then all of the 
 plaintiffs must be citizens of the state in which the suit is 
 brought ; 
 
 2. The defendants, or if more than one, then all of the 
 defendants must be citizens of another state or states ; 
 
 3. It is limited to civil suits, involving, besides costs, a 
 sum or A^alue exceeding $500 ; 
 
 4. The right of removal is limited to the defendant or de- 
 
 nominal parties and who are not, see also Bixl)y v. Couse, 8 Blatchf. 
 73; Coal Co. v. Blatchf ord. 11 Wall. 172; DaAisv. Gray, 16 Wall, 220; 
 Weed Sewing Machine Co. v. Wicks, 3 Dillon, 261, 266; Knapp v. 
 Troy & Boston E. E. Co.. Sup. Court, Oct. Tei-m, 1873, 20 Wall. 117; 
 where the cases are cited by Mr. Justice Davis. In this last case, the 
 learned judge speaking of the removal act of 1867, says, "it does not 
 change tlie settled rule that determines who are to be regarded as the 
 plaintiff and the defendant; and as the plaintiff" and defendant in this 
 action were both citizens of New York, the Circuit court had no jm-is- 
 diction to entertain it." 20 Wall. 124. The fact that defendants are 
 named who have not been served, or have not appeared, and who are cit- 
 izens of the same state with the plaintiff", will not defeat tlie right of 
 removal. Ex parte Girard, 3 Wall. Jr. 263 (1858), Grier, J. 
 
 Nominal parties, or persons made parties who are not necessary to a 
 determination of the real controversj% Avill not defeat the right to a re- 
 moval. Mayor etc. v. Cummins, 47 Ga. 321 (1872) ; Wood v. DaAis, 18 
 How. 467 (1855) ; Ward v. Arredondo. 1 Paine, 410 (1825), Mr. Justice 
 Thompson. 
 
 Fraudulent or improper joinder of parties to prevent removal. See Smith 
 V. Eines, 2 Sumner, 338; Ex parte Girard, 3 Wall. Jr. 263. Improper 
 joinder of causes of action. Cooke v. State Nat. Bank, 52 N. Y. 96 (1873). 
 
 Officers of a corporation, joined -with it as defendants to a bill in equity, 
 l3ut as to whom no relief was prayed in their individxial capacity, and 
 no relief which was not asked as against the corporation, are nominal 
 parties in such a sense, as not to defeat the right of ^removal, if the right 
 otherwise exists. Hatch v. Ch., E. I. & V. E. E. Co., 6 Blatchf. 105 
 (1868). 
 
 As to eff"ect, under the act of July 27, 1868, as to removal of cases by 
 Federal corporations, or the joinder of defendants Avho do not possess 
 the right of removal, see ante, sec. 2. and note. 
 2
 
 16 REMOVAL OF CAUSES. 
 
 fcndiuits, and must be exercised or applied for by (dl of the 
 defendants. -'" 
 
 0. The petition for the removal must be tiled at the time 
 the defendant or defendants entei' their appearunce in the 
 State court. -^ Hence, if some of the plaintitis were not cit- 
 izens of the state in which the suit was brought ; or if some 
 of the defendants were citizens of the same state with plain- 
 
 -"^^ Smith V. Eines, 2 Simiuer, 338; Beardsley v. Torrey. 4 Wash. C. C. 
 280 ; Ward v. ^ViTedondo, 1 Paiue, 410 ; Li re Turner, 8 Wall. Jr. 260, 
 Grier. .J.; In re Girard, IJj.. 203; Field v. Lowusdale, 1 Deady, 288; 
 Fisk V. Union Pacific K. E. Co., 6 Blatchf. 3G2; s. c.,S Blatehf. 243, 299; 
 Dair V. Wallier, 4 l)aly'(X. Y.), 188; Menvin v. Wexel, 49 How. (Pr.) 
 Eep. (X. Y.), 115. Tlie jihove cases discuss the riglit to and effect of suc- 
 cessive removals by different defendants under various removal acts. 
 
 In Fallis v. McVitlnu-. 1 Bond. 100 (1856). it was held tliat. where one 
 oint d<'fi:mhuitvQn\o\Q(\. the suit (the other not being served), tlie plaintiff 
 was entitled to process in the Federal coiu't against tlie defendant who 
 Avas not served with process in the State court at the time the cause was 
 removed. In Field v. Lownsdale, supra, Deadj', J., seems to be of a dif- 
 ferent opinion. See opinion of Mr. Justice Xelson in Fisk v. Union 
 Pacific E. E. Co.. 8.Blatchf. 243 (1871) ; S. C. 8 lb., 299; 6 Id. 362. 
 
 If a suit be brought by a citizen against several non-resident jouii debtors 
 in a state where the statute authorizes the plaintiff" to proceed against 
 the defendants served, and if he recover judgment, it may be enforced 
 against the joint pi-operty of all. or the separate property of the defend- 
 ants served, and thf only defendants served are citizens of another state, 
 such defendants are entitled to remove the cause, under the .Judiciary 
 Act. though the co-defendant not served does not join in the application. 
 Da\is V. Cook, 9 Xev. 134, (1874). 
 
 In an action for joint indebtedness, all the joint defendants, both under 
 the act of July 27. 186G. and under that of March 2. 1867, nmst apply for 
 the removal; — no one can remove undei: the act of 1866. unless a separate 
 judgment can be rendered against him witliout the presence of the otlier 
 defendants. Merwin v. Wexel. 49 How. (Pr.) Eep. 115. 
 
 -^Enterinfj an appearance ; n)eaning of. construed and applied. Chat- 
 ham Xat. Bank v. Merchants" Xat. Bank. 1 Hun, (X. Y.). 702. (Sup. 
 Court. Special term 1874) ; Dart v. Cook, 9 X^ev. 134 (1874) ; Hazard 
 V. Durant et ah, 9 E. I. ()02, 606; Hough v. West. Transp. Co., 1 Biss. 
 425 (1864) ; Sweeney v. Coffin. 1 Dill. C. C. 73. Treat, J.; McBratney v. 
 Usher. 1 Dill. C. C. 367; Webster v. Crothers. 1 Dill. C. C. 301. Other 
 cases cited infra, sec 13. 
 
 Under sec. 12 of the Judiciary Act the iiotition need not be verified. 
 Sweeney v. Coffin, 1 Dill. C. C. 73. 
 
 As to verification and mode of removal under otber removal acts. lb. 
 Infra, sees. 12. 13. 14.
 
 REMOVAL OF CAUSES. 19 
 
 tiff; or if the defendants answered or submitted to the 
 jurisdiction of the State court before applying for the re- 
 moval ; or if all the defendants (other than formal or 
 nominal parties) did not apply for the transfer; or if the 
 amount in dispute did not exceed $500 — then, and in each 
 of these cases, there could be no removal under the Judici- 
 ary Act.'-^ 
 
 SECTION VI. 
 
 ACT OF JULY 27, 1866. 
 
 The act of July 27, 1.S66 (now Kev. Stat., sec. 639, sub- 
 division 2), is the tirst act which allowed part of the de- 
 fendants to remove a cause ; but this right is given by the 
 act only under specified and limited circumstances. Omit- 
 ting the case of aliens, which is of unfrequent occurrence 
 and presents little that is peculiar, the following conditions 
 must co-exist to authorize a removal under this act : 
 
 1. The suit in the State court must be by a plaintiff who is 
 a citizen of tlie state in which the suit is Ijrought. 
 
 2. It must be against a citizen of the same state and a 
 citizen of another state as defendants. 
 
 3. The amount in dispute must exceed the sum or value 
 of $500, besides costs. 
 
 4. The removal must be applied for " before the trial or 
 final hearing of the cause " in the State court. 
 
 These elements concurring, then the non-resident defend- 
 ant (not the resident defendant), may have the cause re- 
 moved, (not wholly), but only so far as relates to himself," 
 
 25 See Infra, sees. 8, 9, 13. 15, and cases cited. 
 
 There can be no removal under the Jndiciaiy Act (Kev. Stats., sec. 
 640, sub-division 1), if tlie plaintift" is an alien. Galvin v. Boutwell, 9 
 Blatchf. C. C. 470. 
 
 Federal jurisdiction dependent on alienage. Hincklej' v. Byrne, 1 
 Deady, 224; Breedlove v. Xicolet, 7 Pet. 413; Wilson v. City Bank, 3 
 Sumner, 422; Montalet v. Murray, 4 Cranch, 46; Jacksou v. Twentj'- 
 man,2Pet. 136 ;/»/>•«, sec. Vl.iiote. Kesident unnaturalized foreigners are 
 deemed aliens. Baird v. BjTue, 3 Wall. Jr.; Lanz v. Kandall. 3 Cent. 
 L. J. 688; s. c, 4 Dillon, C. C. Indians are not aliens. Karrahoo v. 
 Adams, 1 Dill. C. C. 344.
 
 20 REMOVAL OF CAUSES. 
 
 provided also, it be a suit "brought for the purpose of re- 
 straining or enjoining him, or is a suit in which there can be 
 ii final determination of the controA-ersy, so far as concerns 
 him, without the presence of the other defendants as par- 
 ties in the cause. "-^ 
 
 26 Constructiou and extent of application of tlie act of 18G6. Hoclg- 
 kins V. Hayes, 9 Abb. X. Y. Pr. (X. S.), 87: Darst v. Bate?;. 5] 111. 439; 
 Stewart v. Mordecai, 40 Ga. 1. 
 
 In Cape Girardeau and State Line E. R. Co. v. Winston et al.A- Cent. 
 L. J. 127 (1877), before Dillon and Treat, JJ.. tlie last named Judge was 
 strongly inclined to regard the act of 1866 as unconstitutional, and as 
 repealed by implication by the act of March 3. 187.5.— the Circuit Judge 
 gi\ing no opinion on these points, and both judges concurring in hold- 
 ing that, Avhere in a suit brought in a State court by the plaintiff corpo- 
 ration to set aside a deed of trust, made by its officers and another corpo- 
 ration of the same state, a removal of the cause to the United States court 
 was sought by the surviving trustee in the deed of trust and one of the 
 bondholders under it. the latter corporation being a necessarj^ party, and 
 no linal or eflectual determination of the case made by the bill being 
 possible AAdthout its presence, the petitioners could not have the cause 
 removed under the act of 1866 (Rev. Stat., sec. 639, clause 2), as to them. 
 See similar case. Gardner v. Bro^Aii. 21 Wall. 36, cited infra, see. 9, note. 
 
 Construction of the act of 1866, as to cases in which there can 
 be ajinal determination of the controversy as to the portion of the de- 
 fendants removing the cause, without the presence of the other defend- 
 ants. See Bixby v. Couse, 8 Blatchf. 73: Peters v. Peters, 41 Ga. 242; 
 Allen V. Eyerson, 2 Dillon C. C. 501; Case of Sewing Machine Cos., 18 
 Wall. 583; s. c. below, 110 Mass. 70; Field v. Lamb, 1 Deady, 430; 
 Field V. Lownsdale, 1 Deady, 288 (1867), This last case holds that in 
 a suit to quiet title against tenants in common, one of the defendants, as 
 such tenant, may remove the case to the Federal court, under the act of 
 1866. if he is otherwise within its proAisions. 
 
 In McGinnity v. "NMiite. 3 Dillon C. C. 350. it was held, under the cir- 
 cumstances, that one copartner might remove the cause as to himself 
 under the act of 1866. 
 
 ITie act of 1806 has no application to a case where one of the defend- 
 ants is an alien, and the other defendants are citizens of another state, 
 and none of the defendants, or none who are served, are citizens of 
 the state in which the suit is brought. Da^is v. Cook, 9 XeA'. 134 (1874). 
 
 Under a joint application bj" two defendants, the removal may, under 
 the act of 1866, be granted to one and refused to the other. Dart v. 
 Walker. 4 Daly (X. Y.), 188. 
 
 Under the act of 1866. no affidavit of local prejudice is necessary, such 
 as is required by tlie act of 1867. Allen v. Ryerson. 2 Dillon C. C. 501. 
 
 As to time and mode of ;i])i)lyiHg for removal under the act of 1866. see 
 infra, sees. 13, 14.
 
 REMOVAL OF CAUSES. 21 
 
 The express provision is that the suit as between the phiin- 
 tiff (a citizen of the statej, and the other defendant (also a 
 citizen of the same state ^nth the phiintitf), shall proceed in 
 the State court noth withstanding such removal to the Fed- 
 eral court. As between the plaintiti' and the non-resident 
 defendant (citizen of another state), the cause proceeds in 
 the Federal court. It must be admitted that this is a sin- 
 gular result. The plaintift^'s single action is thus split into 
 two — one of which remains in the State court to be adjudged 
 by it ; the other goes to the Federal court to be adjudged by 
 it. This act, it will be perceived, has no reference to cases 
 in which all of the defendants are citizens of another state, 
 (that being then provided for by section 12 of the Judiciary 
 Act), nor any reference to the cases in which the plaintifts 
 are citizens of any other state than tllat in which the suit is 
 brought. Its obvious purpose was to give a right of removal, 
 in the cases and on the terms prescribed, to the non-resident 
 citizen who was joined as a defendant with a resident citi- 
 zen, when sued by a resident plaintiti'.-' It may be inferred 
 that Congress doubted the power under the Constitution 
 (art 3, sec. 2), to authorize the removal of the whole case, 
 since part of the case provided for would be between citizens 
 of the soyme state. We say this may be inferred, since other- 
 wise we can scarcely conceive why it is that Congress ^vould 
 divide one case into two, and embarrass the parties with the 
 inconvenience and additional expense resulting therefrom. 
 Speaking of this act, Mr. Justice Clitibrd observes : " Con- 
 sidering the stringent conditions which are embodied therein, 
 it is doubtful whether it will prove to be one of much prac- 
 tical value. ""-^ The necessity for this act grew out of the 
 narrow construction early placed on the Judiciary Act, the 
 embarrassments arising from which had been so long felt, 
 and have finally led to the act of March o, 1875. The ex- 
 
 «Bixby V. Conse, 8 BUitehf. 73; Allen v. Ryerson, 2 Dillon. .501; 
 Field V. Lownsdale, 1 Deady. 288 (1867) ; Field v. Lamb. lb. 430. 
 
 •■isCase of Sewing Machine Companies, IS Wall. 553; s. C. below. 110 
 Mass. 70.
 
 22 REMOVAL OF CAUSES. 
 
 penence of the past should induce great caution in the 
 courts in applying to that act the rigid principles of the 
 early adjudications on the subject of Federal jurisdiction.-^ 
 
 SECTION VII. 
 
 ACT OF MARCH 2, 18*37 " PREJUDICE OR LOCAL INTLUENCE." 
 
 We now come to the act of March 2, 1867.^'^ It purports 
 to be an amendment to the act of eluly 27, 1866, last no- 
 ticed, and it extends the right, in the cases therein provided 
 for, as well to j^laintiffs as to defendants, but confines it to 
 such as are non-residents of the state in which the suit is 
 brought, and makes the ground of removal, not alone the 
 citizenship of the parties, but also prejudice or local influence. 
 The act provides, "That where a suit is now pending or 
 may hereafter be brought in any State court in which there 
 is a controversy between a citizen of the state in which the 
 suit is brought and a citizen of another state, * * * 
 such citizen of another state, whether he be plaintitt' or de- 
 fendant, if he will make and file in such State court an affi- 
 davit that he has reason to believe and does believe that 
 from prejudice or local influence he will not be able to ob- 
 tain justice in such State court," may have the cause re- 
 moved to the Circuit court of the United States. It will 
 be seen that, as to the plaintifl", this act follows the language 
 of section 11 of the Judiciary Act, and not of section 12 of 
 that act ; the iDlaintiff" ma}' or may not be a resident of the 
 state where the suit is brought ; and the right of removal is 
 given to the non-resident party, l)e he the plaintifl' or defend- 
 ant. Construing this act, Mr. Justice Miller, in Johnson v. 
 Monell,"'^ says : 
 
 " The only conditions necessanj to the exercise of the right 
 of removal under it are : 
 
 '^ See Infrri. sec. uiid note, and sees. 12 and 13. 
 30 14 Stats, at Large. 55S; quoted ante. sec. 2. note. 
 31 1 Woohv. 390.
 
 EEMOVAL OF CAUSES. 23 
 
 "1. That the controversy shall be between a citizen of 
 the state in which the suit is brought and a citizen of an- 
 other state . 
 
 "2. That the matter in dispute shall exceed the sum of 
 five hundred dollars, exclusive of costs. 
 
 "3. That the, party citizen of such other state shall file 
 the repuired afiidavit, stating, etc., the local prejudice. 
 
 "4. Giving the repuisite surety for appearing in the Fed- 
 eral court." * * * " Congress," adds this able judge, 
 " intended to give the right in every case where the four 
 repuisites we have mentioned exist." 
 
 In the case just cited, the plaintiff" was a citizen of Iowa, 
 one defendant was a citizen of Nebraska, and the other of 
 New York ; but the last was not served with process and did 
 not appear ; and it was held that the plaintiff' Avas entitled, 
 under the act of March 2, 1867, to have the case transferred 
 from the State court to the United States court, after a 
 verdict of the jury in the State court in his favor had been 
 set aside l^'the court. This act, let it be noted, only applies 
 where one of the parties is a citizen of the state in which 
 the suit is lirought, and the adverse party is a citizen of 
 another state — in this respect conforming to the previous 
 legislation on the subject.'^- This act undoubtedly grew out 
 
 32 Construction and extent of application of the act of 1SG7. — Policy 
 and pmpose of the acts of 1866 and 1867. stated by Graves. C. J., 
 iu Crane v. Keeder, 28 Midi. .527 (1874) ; by Potter. .J., in Hazard v. Pn- 
 rant et al.. R. I. 602 (1868) ; by Blatchford. J., in Fisk v. Union Pacific 
 R. E. Co.. 6 Blatchf. 362; by Gray. C. J., in Galpin v. Critohlow. 112 
 Mass. 339 (1873). 
 
 The act of 1867 (Eev. Stats, sec. 639. cl. 3) does not apply, where the 
 cause of removal is alienage^ but is limited to citizens- Crane v. Reeder, 
 28 Mich. 527, (1874) ; Davis v. Cook, 9 Nev. 134, (1874). 
 
 Under act of 1867 the tcliole suit is to be removed. Sewing Machine 
 Cos." Case. 18 Wall. 553; s. C. below, 110 Mass. 81; Cooke v. State Xat. 
 Bank, 52 X. Y. 96, (1873) ; s. c. below. 1 Lansing. 494. And all the defend- 
 ants, not nominal or merely formal parties, nuxst apply for the rentoval. 
 Bixbyv. Couse (Blatchford. J.), S Blatchf. 73. (1870): Cooke v. State 
 Xat. Bank, 1 Lansing (X. Y.). 494: s. c. 52 X. Y. 96. (1873). As to 
 who are nominal or formal parties, see ante. 
 
 Parties — Citizenship under act o/lS67. In the leading case on this stat-
 
 24 REMOVAL OF (^AUSP^S. 
 
 of the condition of affiiirs in the Southern states after the 
 War of the Kebellion, and was intended to afford to 
 plaintiffs who had resorted to the State coiu't the right 
 
 ute. entitled in the report the Sewing Machine Companies' Case, it was 
 decided that an action c-x contractu, hy a plaintiff who was a citizen of the 
 state in which the snit was bronght, against two defendants, citizens of 
 other states, and a third defendant, a citizen of the same state as the 
 plaintiff, was not removable under the act of 1867, upon the petition of 
 the two non-resident defendants, (18 Wall. 553) ; and the same principle 
 was re-asserted in a subsequent case, where the removal of the vjJiole 
 suit, imder the act of 1867, was sought, and not of the suit as to the non- 
 resident defendants under the act of 1866. Vannevar v. Bryant, 21 Wall. 
 41; Case v. Douglas, 1 Dillon, 299; Johnson v. 3Ionell (change of resi- 
 dence), 1 Woolw. 390; Bixby v. Couse, 8 Blatchf. 73 (1870); Florence 
 etc. Co. V. Grover & Baker etc. Co., 110 Mass. 70, affirmed 18 Wall. 553. 
 In the case of Burnham v. Chicago, Dubuque & Minnesota Railroad 
 Co. et ah, the Circuit court of the United States, for the district of Iowa, 
 Maj^ term, 1876 (Miller and Dillon, JJ.), decided the following: A fore- 
 closure suit by trustees in a railway mortgage, who are citizens of Mas- 
 sachusetts, was commenced in one of the State courts in Iowa, against 
 the debtor company (which is an Iovki corporation), making an Illinois 
 and an Indiana corporation, each of which claimed liens upon the prop- 
 erty, also defendants to the bill; this suit, after all of the defendants had 
 answered, was removed, in 1876, to the Circuit court of the United States 
 for the district of Iowa, upon the petition of the plaintiffs under the act 
 of 1867. Kev. Stat., see. 639, sub-di\asion 3. The debtor corporation 
 moved to remand the same to the State court, because all of the defend- 
 ants were not citizens of the state in v;hich the suit was brought. Held, in- 
 asnuich as the case was one clearly within sec. 2, of the act of March 3,. 
 1875, in respect of removals, and the controversy, one in relation to the 
 priority of liens between citizens of different states, that the Circuit 
 court had jurisdiction, and that it should not be remanded. See Beery 
 V. Irick. 22 Graft. 484. 
 
 Under the act of 18G7. Avhere non-resident and resident plaintiff's are- 
 joined, the non-resident plaintiffs can not remove the case whoUj'^ or as 
 to themselves. All the plaintiffs must be citizens of the state in which 
 the suit is bronght. Bliss v. Kawson, 43 Ga. 181 (1871). See Stewart 
 V. Mordecai, 40 Ga. 1 ; Bryant v. Scott. 67 X. C. 391 (1872) ; Case v. 
 Douglas, 1 Dillon C. C. 299. 
 
 In Sands v. Smith, 1 Abb, U. S- 368, s. C, 1 Dillon. 290. it was held 
 that, under the act of 1867. a non-resident plaintiff might remove a suit 
 against a citizen of the state in which it was brought and a citizen of a 
 third state who had voluntarily appeared, as to all the defendants. This 
 seems to be right in view of the act of 1839; but some doubt is thrown 
 upon the case by the reference to it in the Sewing Machine Cos.* case, 18- 
 Wall, 553. '
 
 REMOVAL OF CAUSES. 25 
 
 to transfer their suits to the Federal courts.*^ This is the 
 first act that in any event extended the right to 'A 2:)laintiff 
 to leave the forum he had voluntarily chosen, and in this 
 respect was an entire departure from all the previous legis- 
 lation. It is not so difficult to justify the act in this respect, 
 even if it was intended to be permanent, as it is to sustain 
 the pro\dsion that this removal may be had, -on filing the 
 general afiidavit of prejudice or local influence, the truth of 
 which can not be contested or inquired into, " at any time 
 before trial or final hearing of the suit." This provision 
 occasions delay, and is often resorted to for that purpose. 
 But the act of 1867 has been expressly adjudged by the 
 Supreme Court to be constitutional,'^^ and Congress has not, 
 in our judgment, repealed or modified it. There is no ex- 
 press repeal, and it is not, according to the better view, re- 
 pealed by implication by the act of March 3, 1875, next to 
 be noticed.'"^ 
 
 In passing for the present from this act, we direct attention 
 to Mr. Justice Miller's vindication of it. He says : " I do 
 not join in the condemnation of the act of 1867. It does 
 not allow the removal solely on the ground of citizenship. It 
 requires the requisite citizenship to exist, and in addition 
 thereto requires the existence of prejudice or local influence 
 to be shown by afiidavit. In this respect the policy of that 
 act is not unlike that which prevails in perhaps all the states 
 in regard to the change of venue from one county, or one 
 
 Case V. Douglas (citizenship of plaiutifts who are copartners), 1 Dill. 
 C. C. 299; Cooke v. State Nat. Bank (all the defendants must unite), 1 
 Lansing, X. Y. 4-94; s. C, 52, X. Y. 96 (1873) ; Wasliingtou etc. K. B. 
 Co. V. Alexandria etc. K. E. Co., (act of 1867 does not repeal act of 
 1866). 19 Gratt. (Va/). 562 (1870); Fields v. Lamb (as to repeal, etc.) 
 1 rxeady, 430; Beecher v. Gillett (removal by substituted defendant),! 
 Dillon C. C. 308; Johnson v. Monell (time of removal— cliange of resi- 
 dence), 1 Woolw. 390. 
 
 Decisions concerning the affidavit required by this act, see infra, sec. 
 14. 
 
 33 Gaines v. Fuentes, U. S. Sup. Court, Oct. term, 1875, 3 Cent. L. J. 
 371; s. c, 2 Otto, 10. 
 
 34 Chicago & X. AV. Kiulway Co. v. AVhitton's Adnn-. 13 Wall. 270. 
 
 33 7H/r«, sec. 8.
 
 26 REMOVAL OF CAUSES. 
 
 judicial district, to another. Johnson v. Monell, 1 Woodw. 
 390. The object in each case is to secure an impartial tri- 
 bunal, and the Federal courts are not courts for non-residents 
 more than for residents, and no injustice is done to the latter 
 to l)e compelled there to litigate controversies which they 
 mav have with citizens of other states." ^^ 
 
 SECTION VIII. 
 
 ACT OF >LARCH 3, 1875. 
 
 We now reach the act of March 3, 1875 (19 Stats, at 
 Large, 470), entitled " an act to determine the jurisdiction 
 of the Circuit courts of the United States, and to regulate 
 the removal of causes from State courts, and for other 
 purposes." 
 
 The first section of the act relates to the original jurisdic- 
 tion of the Circuit court, civil and criminal, greatly enlarg- 
 ing the jurisdiction in civil cases, and conferring a jurisdic- 
 tion concurrent with the courts of the several states, using 
 for this purpose the language of the article of the Consti- 
 tution (art. 3, sec. 2), which defines and limits the judicial 
 power of the general government. Ihe civil jurisdiction, 
 as there conferred, is given in certain specified cases by 
 reason of the subjecf -matter, irrespective of the citizenship 
 of the parties, and in other cases by reason of citizenship, 
 irrespective of the subject-matter. It is material to notice 
 the clause giving jurisdiction on the ground of citizenship. 
 It removes the limitation prescribed hy the Judiciary Act 
 and by the prior removal acts, requiring one of the parties 
 to the suit, that is, either the plaintilfs or the defendants, to 
 be citizens of the state where the suit is brought. On the 
 contrary, the act of March 3, 1875, confers jurisdiction of 
 all suits of a civil nature, over $500, in which there shall be 
 a controversy between citizens of difierent states, without 
 
 36Fanuers" etc. Trust Co. v. Maciuilhm. 8 Dillon. 379, 381.
 
 REMOVAL or CAUSES. 27 
 
 requiring 11113^ of the parties to be citizens of the state in 
 which the suit is brought. The second section of the act 
 relates to removals [note to sec 2, aw^e] ; and as to the suits 
 which may be removed, it follows the language of the first 
 section. So that it is true, in general, that any cause may, 
 at the proper time and in the prescribed mode, be removed 
 from the State court to the Circuit coui-t of the United 
 States, which, by reason of either its sul)ject-matter or 
 the citizenship of the parties, might have Ijeen instituted 
 originally in the Federal court. 
 
 The act of 1875 on the one hand adds to or enlarges the 
 classes of casfes that may be removed, and on the other hand 
 restricts the time in which the removal must be applied for 
 within narrower limits than the acts ofl86() and 18(57. The 
 required amount or value is the same as before, i. e., it must 
 exceed $500, exclusive of costs. In all previous legislation, 
 the right of removal, where citizenship is the ground, is lim- 
 ited to the non-resident citizen, whereas in the act of 1875 it 
 is given to " either party ,'' and in certain circumstances to 
 either one or more of the plaintiffs or defendants. This is 
 a radical change of policy. 
 
 An analysis of the second section of the act shows that in 
 respect oi subject-matter, without reference to citizenship, it 
 gives the right of removal of ' ' any suit of a civil nature at 
 law or in equity," involvhig over $500, (1) arising under the 
 Constitution, or laws or treaties of the United States ; or (:^) 
 in which the United States shall be plaintiff or petitioner. 
 And in respect of citizenship, without regard to subject-mat- 
 ter, it gives the right of removal (1) in any suit " in ivhich 
 there shall he a controversy between citizens of (liferent states; 
 or (2) a controversy between citizens of the same state claim- 
 ing lands nnder grants of different states ; or (3) a contro- 
 versy between citizens of a state and foreign states, citizens, 
 or subjects." 
 
 In respect of the time in which the removal must be ap- 
 plied for, the provision is that the petition therefor must 
 be filed in the State court " before or at the term at which the
 
 28 REMOVAL OF CAUSES. 
 
 cause could be first tried, and before the trial thereof." 
 The decisions under the acts of 18()G and 1867 as to re- 
 movals after one trial had and a new trial granted, which 
 Avill be aUuded to hereafter, may not be and probably are 
 not applicable under the act of 1875. •" 
 
 Many questions oif great importance arise under this act, 
 among which we may mention in this place the question how 
 fiir it repeals, if at all, the 12th section of the Judiciary Act, 
 the act of 18(>(> and the act of 18G7, or rather these several 
 acts as sul)stantially embodied in the 6o9th section of the 
 Revised Statutes. There is no express repeal in the act of 
 1875 (see section 10), of any specitied previous acts, the re- 
 peal being only of " all acts and parts of acts in conflict 
 with the provisions of this act." It would seem that sub 
 division one of sec. 630, Kevised Statutes, (12lh section of 
 the Judiciary Act), is practicalh' repealed by reason of be- 
 ing merged in the more enlarged right given by the act of 
 1875. If, however, a case should arise which could be re- 
 moved under this provision, but which could not be removed 
 under the act'of 1875, the former would be held to be still 
 subsisting. If a liberal construction shall be, and can con- 
 stitutionally be, given to the latter portion of section 2 of 
 the act of 1875, the above remark as to repeal may possi- 
 bly apply, except as to time, to sub-division second of sec- 
 tion 639 of the Revised Statutes, corresponding to the act 
 of 1866. But the better view, probably, is that the act of 
 1866 is not repealed by the act of 1875 ; that is to say, if a 
 case is brought within its provisions, it may still be removed 
 thereunder, and cases may arise of such a nature, that they 
 would fall within the act of 1866, and not M'ithin that of 
 1875 ; in which event the latter act should not be held to 
 repeal by implication the former. The third sub-division of 
 that section (corresponding to the act of 1867) is broader 
 than the act of 1875, provides for a class of cases not pro- 
 vided for by that act, and while the point is not free of 
 
 3" See «■»/»•«. see. 13, as to tinif of apijlying- for the removal under the 
 act of 1S75; infra, see. 14, as to mode of eflectins' the removal.
 
 REMOVAL OF CxVUSES. 29 
 
 doubt, the true view seems to be that at all events this 
 portion of the 639th section remanis unrepealed. This has 
 been decided to be so in the 8th circuit by Mr, Justice Mil- 
 ler, and generall}^ in the courts of that circuit, and so far as 
 we are advised, by the Circuit courts elsewhere. 
 
 Concerning the nature of the suits that maj^ be removed 
 under the act of 1875, perhaps the true view is, that it con- 
 templates the removal of the whole suit, and not, like the 
 act of 1866, of part of a suit. This has been thus held in 
 the 7th circuit. ^^ If, therefore, the main and essential con- 
 troversy is between citizens of the same state, a non-resident 
 defendant interested in a collateral branch of the case can 
 not remove it under the act of March 3, 1875.^^ 
 
 One of the most important questions which arises under 
 the act of 1875 is, whether the Federal judicial power as 
 conferred and limited by the Constitution can, by reason of 
 citizens] iip, extend to a case in which some of the necessary 
 defendants are citizens of the same state with the plaintitls 
 or some of the plaintitls. Expressions may, perhaps, be 
 found in opinions of the Supreme Court construing the 11th 
 and 12th sections of the Judiciary Act and the removal acts 
 of 1866 and 1867, which deny, or would seem to deny, that 
 under the Constitution the Federal judicial power extends 
 on the ground of citizenship to cases where any of the de- 
 fendants in interest are citizens of the same state with the 
 plaintiffs, although some of the defendants may l)e citizens 
 
 3S Chicago V.Gage (Blodgett,. J.). 8 Chicago Legal Xews, 49 (IS75) : s. C, 
 6 Bissell, 467; Osgood v. Chicago etc. R. R. Co. (Drummond. J.), 7 Ch. 
 Legal Xew.«. 241 ; s. C, 6 Bissell. 330. In Elleniian v. Xew Orleans etc. 
 R. R. Co., 2 Woods, C. C. 120 (1875), Mr. Circuit Judge Woods held 
 that, under the act of 1875, there maj'he a removal of that part of a cause 
 which concerns the original parties, notwithstanding a statute of the state 
 may declare that the trial as to certain other parties can not be separated 
 from the trial of the main cause,— leaving the latter issue in the State 
 court. But the point did not require much consideration, for the reason 
 that the latter parties had disclaimed and had no such interest in the suit 
 or relative to it, as to defeat the right of removal. 
 
 •39 Chicago V. Gage (Blodgett, J.). 8 Chicago Legal News, 49. (1875) ; 
 S. C, 6 Bissell, 467.
 
 30 REMOVAL or CAUSES. 
 
 of other states than the one of Avliich the plaintitf is a citi- 
 zen. But all the legislation previous to the act of 1875 waa 
 such, that the Supreme Court was not necessarily obliged 
 to decide this question ; and it is in our judgment properly 
 to be considered as still open. It will be extremely embar- 
 rassing and unfortunate, if the Supreme Court shall feel 
 constrained to assign such narrow limits to the Constitution. 
 Looking at the purpose in the grant of the Federal judicial 
 power in the Constitution, and the benefits which are felt 
 to flow from the exercise of this jurisdiction, and the em- 
 barrassments which would result from a close and rigid con- 
 struction of the Constitution in this regard, we think the 
 Supreme Court would be justified in holding that a case 
 does not cease to be one between citizens of different states, 
 because one or some of the defendants are citizens of the 
 same state with the plaintiffs or some of the plaintiffs, pro- 
 \aded the other defendants are citizens of another or other 
 states. If the substantial controversy is wholly betw^een 
 citizens of the same state, it is not, and can not become, 
 one of Federal cognizance ; but if the real litigation is be- 
 tween citizens of different states, the case is within the con- 
 stitutional grant of Federal judicial power, not^dthstanding 
 some of the adversary parties may happen to Ije citizens of 
 the same state with some of the plaintiffs. 
 
 The case of Lockhart v. Horn, 1 Woods, C. C. K. 628, 
 634 (1871), arising under a former act, contains an ex- 
 pression of the opinion of Mr. Justice Bradley concerning 
 the constitutional question a1)()ve mentioned. In conform- 
 ity with the accepted construction prior to that act he held, 
 that the Circuit court has no jurisdiction of a cause in which 
 the plaintiff and part only of the defendants w^ere citizens of 
 the scune state, although they answer without objecting to 
 the jurisdiction. He says : "Were this an original ques- 
 tion, I should say that the fact of a common state citizen- 
 ship existing between the complainants and a part only of 
 the defendants, provided the other defendants were citizens 
 of the proper state, would not oust the court of jurisdiction. .
 
 REMOVAL or CAUSES. 31 
 
 It certainly would not under the Constitution. The case 
 would still be a controversy beticeen citizens of different 
 states.'^ [The act of 1.S75 uses the hinguage of the Consti- 
 tution, it will be remembered.] ''• But the strict construc- 
 tion put by the courts upon the Judiciary Act," he contin- 
 ues, " is conclusive against the jurisdiction ; and I am 
 
 ^See, on this subject, case of Sewing Machine Cos., 18 Wall. 553, af- 
 flnning s. c, 110 Mass. 70, 80; Xew Orleans v. Winter, 1 ^Vlieat, 91 
 (1816) ; Woods v. Davis, 18 How. 467; Hepburn v. Ellzey,-2 Cranch,445; 
 Strawbridge v. Curtiss, 3 Crancli, 267. 
 
 In the case of Bryant v. Eich, 106 Mass. 192, (s. c. in U. S. Sup. Court, 
 under name of Vannevar v. Bryant, 21 AYall. 41), Chief -Justice Gray says 
 arguendo : '' Five of the nine defendants in this case, as well as the plaint- 
 iff, are citizens of this commonwealth; and the courts of the United 
 States are not authorized by the Constitution to take jurisdiction, so far as 
 it depends upon the citizenship of the parties, of suits between citizens 
 of the same state, but only of suits between citizens of different 
 states, or between a citizen and an alien, and can therefore have 
 no jurisdiction (except when it grows out of the subject-matter) of 
 an action in which any of the plaintiffs and of the defendants, who are 
 real parties in interest, by or against whom relief is sought, are citizens 
 of the same state. Const, of U. S., art. 3, § 2; Strawbridge v. Curtiss, 3 
 Cranch, 267: Xew Orleans v. Winter, 1 Wheat. 91; Wood v. Davis, 18 
 How. 467; Tuckerman v. Bigelow. 21 Law Reporter, 208; Wilson v. 
 Blodgett, 4 McLean, 363. •" 
 
 An examination of the cases here cited will show that they turn upon 
 the language of the Judiciary Act, and not on the Constitution. So, in 
 the very recent case of Ober v. Gallagher, (U. S. Sup. Court, Oct. Term, 
 1876), Chief Justice Waite says, arguendo, that if " an indispensable party 
 was a citizen of the same state loith the. plaintiff , the jurisdiction would be 
 defeated, because the controversj^ would not be between citizens of dif- 
 ferent states, and thus not ivithin the judicial poioer of the United States, as 
 dejinedby the Constitution. The decisions to this effect are numerous: 
 Hagan v. Walker, 14 How. 36 ; Shields v. Barrow, 17 How'. 141 ; Clear- 
 water V. Meredith, 21 How. 492 ; Insbueh v. Farwell. 1 Blatchf. 571 ; 
 Barnes v. Baltimore City, 6 Wall. 2S6; Jones v. Andrews, 10 Wall. 332; 
 Commercial and R. E. Bank of Vioksburg v. Sloconib. 14 Pet. 65. In 
 Louisville E^E. Co. v. Letson, 2 How. 497, it is also distinctlj^ stated (p. 
 556) , that tbe act of 1839 was passed exclusively with an intent to rid the 
 courts of the decision in the case of Strawbridge v. Cm-tiss, 3 Cranch, 
 267, which, with that of the Bank v. Deveaux, 5 Cranch, 84, had ' never 
 been satisfactory to the bar." "' But the cases here cited did not necessarily 
 involve an inquiry or decision as to the extent of the constitutional point 
 of judicial power as respects controversies between citizens <f different- 
 states.
 
 32 REMOVAL OF CAUSES. 
 
 bound by it. Nevertheless, the case is such that the com- 
 plainant may dismiss his l)ill as to the"ol)noxious defendants 
 and hold it as to the others. I will permit him to do so. 
 This should be allowed in all cases where the objection is 
 not made in limine.'''' 
 
 The judicial power of the United States, as conferred by 
 the Constitution, extends " to all cases arising under the 
 Constitution and Laivs of Ihe United ^'^tates,'" whether they 
 are pending in the State or Federal tribunals. The act of 
 March 3, 1875, both in prescribing the original jurisdiction 
 of the Circuit courts of the United States, and in describing 
 the class of cases which may be removed into the Circuit 
 courts from the State courts, follows the language of the 
 Constitution. It is therefore important to know, tvhai 
 is a case arising under the Constitution or Laws of the United 
 States. The question has been frequently l^efore the Su- 
 preme Court of the United States, and some of the leading 
 judgments are cited in the note.^^ " A case in law or equity 
 consists of the right of the one party, as well as the other, 
 and may be truly said to arise under the Constitution or a 
 law of the United States, whenever its correct decision de- 
 pends upon a right construction of either."*- " Nor is it," 
 says Mr. Justice Swayne, "any objection, that questions 
 are involved which are not all of a Federal character. If 
 one of the latter exist, if there be a single such ingi-edient 
 in the mass, it is sufficient. That element is decisive upon 
 
 *! Martin v. Hunter's Lessees, 1 ^Vlieat. 314; Cohens v. Virginia, 6 
 Wlieat. 264; Osborn v. Bank of U. S.. !) Wlieat. 821; United States v. 
 Peters, 5 Cranch, 115; Ableman v. Booth. 21 How. 506; Meserole v. 
 Union Paper Collar Co., 6 Blatchf. 356; Freeman v. Howe ,[24 How. 4.50; 
 Mui-dock V. Memphis (full discussion), 20 Wall. 591; The 3Iayor v. 
 Cooper, 6 Wall. 247; Murray v. Patrie, 5 Blatchf. 343: Claflin v. House- 
 man (U. S. Sup. Court. Oct. Term, 1876). 9 Ch. Legal Xews. 105; S. C, 
 3 Cent. L. .J. 803 ; X. Y. Life Ins. Co. v. Hendren (U. S. Sup. Coiu-t, 
 Oct. Term, 1875) . 8 Ch. Legal Xews, 385 ; Ames v. Colorado Central R. K. 
 Co.. Ch. Legal Xews, 132; s. c. 3 Cent. L. J. 815. See ante., sec. 2 and 
 not*, and cases cited under the acts of 1833 and .Inly 27, 1868 (Eev. Stats., 
 sec. 040). 
 
 *2Per Marshall, C. J., in Cohens v. Virginia, G Wheat. 379.
 
 REaiOVAL OF CAUSES. 33 
 
 the subject of jurisdiction,"*^ Avhether it exists in favor of 
 the phiintiff or the defendant. 
 
 But there must be some question actually involved in the 
 case, depending for its determination upon the correct con- 
 struction of the Constitution, or some law of Cono-ress, or 
 some treaty of the United States, in order to sustain the 
 Federal jurisdiction under the clause under consideration, 
 namely, " suits arising under the Constitution, or laws or 
 treaties of the United States." Accordingly, a case relat- 
 ing to the title to land is not one of Federal jurisdiction, 
 although the title may be originally derived under an act of 
 Congress, if no question arises, or is raised, as to the valid- 
 ity or operative eti'ect of the act of Congress, and the rights 
 of the parties depend upon State statutes or the general 
 principles of law.^ 
 
 -•^^ The Mayor V Cooper, 6 Wall. 252; Connor v. Scott (West. Dist. 
 Ark,, Parker, J.) 3 Cent. L, J, 305, 
 
 Wlien a case involves the construction of the bankrupt act. it may be 
 removed to the Federal court, under the act of March 3, 1875, Con- 
 nor v. Scott (West. Dist. Ark,, Parker, J,), 3 Cent, L, .J, 305 (1876); 
 Payson v. Dietz (removal by assignee in banki-uptcy, on ground of citi- 
 zenship), 5 Ch, Legal Xews, 434; Trafton v, Xougues (as to removal of 
 suits in relation to mining claims), 13 Pacific Law Eep, 49; s. C, 4 Cent. 
 L. J. 228. cited infra. 
 
 **McStay v, Friedman, 92 U, S, E. (2 Otto), 723; Eomie v. Casanova, 
 91 U. S. E, (1 Otto), 380; Trafton v, Xongues (Dist, Cal., SaAAyer, Cir- 
 cuit Judge), 13 Pacific Law Eep. 49 (1877) ; s, c. 4 Cent, L. J. 228, The 
 learned Circuit Judge, in the case last cited, upon a review of certain 
 decisions of the Supreme Court of the United States, arrives at the fol- 
 lowing conclusions: 1, Only suits involving rights depending upon a dis- 
 puted construction of the Constitution and Laws of the United States 
 can be transferred from the State to the National courts, under the clause 
 " arising under the Constitution and Laws of the United States."' of 
 section 2 of the Act to detei-mine the jurisdiction of the United States 
 courts, passed March 3d, 1875, 2, Where the only questions to be liti- 
 gated in suits to determine the right to mining claims are, as to 
 what are the local laws, rules, regulations and customs by whicli the 
 rights of the parties are governed, and whether the parties have in fact 
 conformed to such local laws and customs, the courts of the Laiited 
 States have no jurisdiction of the cases imder the provisions of the Act 
 giving jurisdiction in suits " arising under the Constitution and Laws of 
 the LTnited States. ' 
 3
 
 34 REMOVAL OF CAUSES. 
 
 SECTION IX. 
 
 NATURE OF SUITS THAT MAY BE REMOVED UNDER THE SEV 
 ERAL REMOVAL ACTS— PRACTICE AS TO REPLEADER. 
 
 ^ye are prepared after this general survey of the subject 
 to consider in detail other important topics belonging to it. 
 
 As to nature of suits that may he removed under the acts 
 ive have been reviewing. The language of section 639 of 
 the Revised Statutes is " any suit * * * wherein the 
 
 Bequisites of petitions to transfer causes from State to Federal court 
 under the above clause of section 3 of the act of March 3, 1S75, seepost, 
 sec. 14. 
 
 Two new and interesting points under the act of 1875 were ruled hy 
 Mr. Justice Davis and Judge Treat at the July Term, 1S7C. of the Circuit 
 Court of the U. S., for the Southern District of Illinois. Mr. Robert E. 
 Williams, of Bloomington, Illinois, of counsel in tlie causes, has thus 
 stated the facts and substance of the decisions : 
 
 Turner Bros., citizens of New York, filed a bill against the Indianapo- 
 lis, Bloomington & Western R. R. Co., the Farmers' Loan and Trust 
 Co. et ah, in the State court, and a receiver was appointed. There were 
 three mortgages on the road — in the first two, the Farmers' Loan 
 and Trust Co. is trustee— in the other, an individual is trustee. Turner 
 Bros, claimed to be bondholders of bonds under each of the mortgages, 
 and also to be floating or unsecured creditors to a large amount. The 
 receiver, it was claimed, was ai)pointed by collusion between the parties. 
 As soon as the Farmers" Loan and Trust Co. learned of the appointment 
 of the receiver, it appeared in the State court, answered the biU, and filed 
 a cross-bill to foreclose the two mortgages, and then filed a petition and 
 bond to remove the case to the Federal court under the act of 1875. 
 Turner Bros., the complainants in the bill, are citizens of New York, and 
 the F. L. & T. Co. is a citizen of New York; but Turner Bros, were 
 not. it was claimed, necessary parties to the litigation. A motion was 
 made to remand to the State covu-t for want of jurisdiction in the Fed- 
 eral court, as Turner Bros, nnd the F. L. & T. Co . were all citizens of 
 New York. After full argument and consideration. Mr. Justice Da%is 
 announced the opinion both of himself and Judge Treat, in which he 
 said that there Avas not a doubt that the case was properly transferred, 
 and that the Federal court had jurisdiction . In substance he remarked . 
 They, Turner Bros., sued in a double aspect, as bondholders and unse- 
 cured creditors. As bondholders their bill did not in any Avay charge on 
 the trustee in either of tlie mortgages an inability or unwillingness to 
 act. and all of the trustees were in fact parties and tr3ing to enforce the 
 trust; therefore, as bond creditors, they, TurnerBros., were not necessary
 
 REMOVAL OF CAUSES. 35 
 
 amount ill dispute, * * exceeds the sum or value of five 
 hundred doUars." The hmguage of the act of 1875 (sec. 2) 
 is " any suit of a civil nature at hiw or in equity." Al- 
 though the language is ditierent, the meaning is doubtless the 
 same. It does not extend to crhninal prosecutions, being- 
 parties. As floating-delbt creditors tliere was no controversy bet^\'een the 
 S'urner Bros, and tlie trustee in tlie mortgages — as, of course, tlie mort- 
 gage took precedence of the floating debts; tliat as to tlie floating debts 
 the only controversy was between the creditors and the debtor, the Rail- 
 road Co. ; that, therefore, the principal controversy was between the trust- 
 ees in the mortgages (the F. L. & T. Co.) and the corporation, and that 
 the claim of Turner Bros, for their unsecured debt was improperly intro- 
 duced into the case, and could not oust the Federal court of its rightful 
 jurisdiction over the main controversy between the mortgagor and the 
 mortgagees ; but even if Turner Bros, as unsecured creditors had a right 
 to be parties at all, their right was only to the surplus after payment of 
 all mortgages, and their controversy was merely an incident to tlie main 
 controversj^ about the mortgages, and that the intention of Congress, 
 as plainly expressed in the act of March 3, 1875, was that, wliere the 
 main controversy in a case was between citizens of different states, it 
 was removable and' carried with it all the incidents, and that a mere inci- 
 dent would not prevent the case from being removed. 
 
 The other case was this : A road in the southern part of the state had 
 made a mortgage to the Farmers' Loan & Trust Co. A judgment creditor, 
 by collusion with the Raih-oad Co., flled a bill and got a receiver appointed 
 by the State court.'making no defendant to the bill but the Railroad Co. It 
 was claimed that this was done with the intent to obtain an undue ad- 
 vantage over the bondholders. As soon as the F. L. & T. Co. learned of it, 
 it applied to the State court to be permitted to become a party defendant. 
 It presented a sworn petition setting up its rights as trustee, and asking 
 leave to be made a defendant, and with it filed an answer to the bill and 
 a cross-bill to foreclose the mortgage. The State court refused to admit 
 the F. L. & T. Co. as a defendant, saying it conld not make such an or- 
 der in A^acation. The F. L. & T. Co. at once filed in the State court its 
 papers — that is, its petition, answer and cross-bill, and a petition and 
 bond to remove the ease to the Federal court, and brought the record to 
 the Federal court. There was no question about the citizensliip of the 
 parties; but the question was, as the F. L. & T. Co. was not made a de- 
 fendant by the bill, and the State court had refused to make an order 
 admitting it as a party, was it, the F. L. & T. Co., such a paity within the 
 meaning of the act of Congress as could file the petition and bond for 
 removal? The F. L. & T. Co. contended that it was, as it was absolutely 
 a necessary party to the litigation, and had done all it could to become a 
 party ; and if the State court could refuse to admit it as a pai-ty, it could 
 nullify the act of Congress and leave the mortgagee witliout remedy.
 
 36 REMOVAL OF CAUSES. 
 
 limited to suits of a civil nature. ^-^ All eases which fall 
 within the ordinary notion of an action at law on contract 
 or for tort, or of a suit in equity, are undoubtedly em- 
 braced by the language. Speaking of the nature of suits 
 which may be removed under the I2th section of the Ju- 
 diciary Act (Revised Statutes, § 639, sub-division 1), Mr. 
 Chief Justice Chase in ^yest v. Aurora,*^ said: " A suit 
 removaljle from a State court must be a suit regularly com- 
 menced b}^ a citizen of the state in which the suit is 
 brought, by process served upon the defendant who is a cit- 
 izen of another state, and who, if he does not elect to re- 
 move, is bound to submit to the jurisdiction of the State 
 court." This language is, perhaps, too broad to be strictly 
 applicable to all cases, since suits have been held remov- 
 able, and properly so we think, which were not " regularly 
 commenced " in the State court on process issued from it.^" 
 
 Mr. JustioeT)avis decided that it was an absolutely necessary party, and 
 that, as it had done all it could to become a party and had been wrong- 
 fully refused the right by the State court, it was a party for the purpose 
 of removing the case, and that the case was rightfully removed. 
 
 «See Eison v. Cribbs. 1 Dillon. 181, 1S4; Green v. United States. 
 Wall. 655. 
 
 *3fi Wall. 139; (1867). 
 
 47 Patterson v. Boom Co.. 3 Dillon, 465. In the case last cited it was 
 held that a suit pending in a State court, between a land owner and an 
 incorporated company seeking to appropriate his private propei-ty under 
 the right of eminent domain, where the question to be tried is the value 
 of such land, is a suit of such a nature as may he removed to the Federal 
 court, although the proceeding in its inception Avas an appraisement by 
 commissioners appointed under the charter of the company. 
 
 What is an original suit which may be i-emoved. and what is a mere 
 supplement or sequence of a former suit and decree in the State court, 
 is illustrated by the case of Hatch v. Preston. 1 Biss. 19 (1853), Drum- 
 mond. J. See West v. Aurora, supra. 
 
 Plaintift" sued at law in the State court on a policy, and while it was 
 pending, filed a bill in equity to reform it. Held, that the defendant 
 might remove the equity suit — that being an original suit within the 
 meaning of sec. 12 of the .Judiciary Act, and not simply a suit ancillary 
 to or in aid of the suit at law. Charter Oak lire Ins. Co. v. Star Ins. 
 Co., (Nelson, J.), 6 Blatchf. 208 (1868). 
 
 A (jarnishee or trustee, holding property or credits of the pi-incipal de- 
 fendant and joined as defendant for that purpose, w as lield by the Su-
 
 REMOVAL OF CAUSES. 37 
 
 The case ofWest v. Aurora, supra, is iiiterestini;: as illus- 
 trating a class of questions which arise in respect of removals 
 in consequence of the practice in the code states of min- 
 gling, or rather uniting legal and equitable relief in the same 
 suit. In brief the case was this : The plaintift* sued the city 
 of Aurora in the State court on coupons. The city made 
 certain defenses, and l)y an additional answei- prayed an in- 
 junction to restrain plaintiff from proceeding in any suit on 
 the coupons, and from transferring them, and for a decree 
 that the same be canceled and delivered up. Upon the 
 tiling of this additional answer the plaintiff discontinued his 
 suit, and assuming that he was a defendant to the case made 
 in the additional answer, and that this was a new suit 
 against him , applied to remove the cause into the Federal 
 court, under section 12 of the Judiciary Act. The Supreme 
 Court held the case not removable and observed: "The 
 tiling of the additional paragraphs did not make a new suit 
 within the meaning of the Judiciary Act. They were in the 
 nature of defensive pleas, coupled with a pi-ayer for injunc- 
 tion and general relief. This, if allowed l:»y the code of 
 Indiana (as it was), might give them, in some sense, the 
 character of an original suit, but not such as could be re- 
 ' moved from the jurisdiction of the State court," under the 
 Judiciary Act which gives the right " only to a defendant 
 who promptly avails himself of it at the time of appear- 
 ance ;" but here the plaintiffs had " submitted themselves, 
 b}^ voluntarily resorting to the State court, to its jurisdic- 
 tion in its whole extent."^* Some of the cases illustrative 
 of the nature of suits that may be removed are cited in a 
 note.^^ 
 
 perior Court of Judicature of "New Hampshire as not within tlie removal 
 act of 1866. and hence could not have a transfer of the case as to him- 
 eslf, leaving- the cause as between the principal parties in the State court. 
 Weeks v. Billings, 55 X. H. 371 (1875) . 
 
 ^^See infra, sec. 13. 
 
 *^ Suits btj attachment may be removed. Barney v. Globe Bank, 5 
 Blatchf. 107; Sayles v. I>^. W. Ins. Co., 2 Curtis C. C. 212. And eject- 
 inont actions. Ex parte Turner, 3 Wall. Jr. 258; Torrey v. Beardsley, 4 
 Wash. C. C. K. 242: Allin v. Robinson. 1 Dillon. 119; Ex parte Girard,
 
 38 REMOVAL or CAUSES. 
 
 Where the case made 1)}^ the pleadings in the State court 
 is m its nature a law action, it must, when removed to the 
 
 3 Wall. Jr. 203 (1868). Grier..J. And in replevin. Beecher v. Gillett. 1 Dil- 
 lon. 308; Dennistonn v. Draper. 5 Blatchf. 336. And ubill in equity to 
 reform an insurance policy. Charter Oak Co. v. Star Ins. Co., 6 Blatchf. 
 208. And a special statutory jyroceeding in the nature of a chancery remedy 
 to confirm a tax title. Parker v. Overman, 18 How. 137; s. c. Hemp- 
 stead, 692. 
 
 A proceeding to appiropriate private property for public use, which at 
 the time the removal was applied for had assumed the shape of an ac- 
 tion at law regularly docketed in the State court, to be tried and deter- 
 mined as other cases, and judgment entered accordingly, is such a suit 
 as maj' be removed. Patterson v. Boom Co., 3 Dillon, 465. 
 
 Suit in a State court by strangers, the object of which is to annul a will 
 and to recall the decree by which it was allowed to probate, is in effect a 
 suit in equity, and may be removed to the Circuit court under the act of 
 March 2. 1867. Gaines v. Fuentes, (Oct. Term, 1875, U. S. Sup. Court. 3 
 Cent. L. J. 371; s. c. 2 Otto, 10, overruling s. c, 25 La. An. 85). dis- 
 tinguished from Broderick's Will case, 21 Wall. 503, and proceedings to 
 probate wills. Fouvergnev. New Orleans, 18 How. 470. 
 
 Under the legislation of Massachusetts in respect to the establishment 
 of claims against the estates of deceased persons., which provides for the 
 examination, by Commissioners of the Probate Court, of all claims of 
 creditors against tlie estate, and for the allowance or rejection by the 
 Commissioners of each claim, and which requires a statement of the 
 amount allowed on each claim and a list of claims finally allowed. Math 
 a provision for an appeal by either party to a Superior court, which shall 
 be tried as in an action at law proseci;ted in tlie usual manner, except 
 that no execution shall be awarded, it was held that such a claim, pend- 
 ing on appeal in the Superior court from the decision of commis- 
 sioners appointed by the Probate court, could not be removed to the Cir- 
 cuit court of the United States under the act of 1867. Du Vivier v. 
 Hopkins, 116 Mass. 125 (1874). This decision was rested upon two gen- 
 eral gi-ounds: 1. The claim against an estate is not such a suit as is con- 
 templated by the removal acts of Congress ; the Supreme Judicial Court 
 of Massachusetts being of oi)inion that the jurisdiction of the State 
 courts over the entire proceedings for the settlement of the estate is ex- 
 clusive of the Federal courts; [but see Craigie v. McArthur, 9 Ch. Legal 
 News, 156; S. C, 4 Cent. L. J. 237; s. c, 15 Al. Law J. 121 ; s. c. 4 Dil- 
 lon C. C. ; Payne v. Hook, 7 Wall. 425; s. c, 14 Wall. 252] ; that nothing 
 less than the whole cause can be removed, while here was an attempt, in 
 the opinion of the Court, to remove part of the proceeding; that on the 
 removal of a cause, where the right exists, the jurisdiction of the State 
 court ceases and the Federal court must execute its own judgment, and 
 can not after judgment i-emand the cause for anj' piu'pose, or transmit a 
 certificate of its judgment to the State court, it not being an appellate 
 tribunal, but a court of co-ordinate and independent jurisdiction; and
 
 REMOVAL OF CAUSES. 39 
 
 Federal court, proceed as suoli, and may do so (where the 
 action is a purely legal one), although it is brought in the 
 
 here the Federal court could not issue execution on its judgment or 
 certify the same to the State court. 2. The application could not be made 
 in the appellate court, but under the act of Congress nmst be made in the 
 courtof original jurisdiction before final judgment; and here the decision 
 of the Commissioners of the Probate Court would be final, unless modified 
 by the State appellate court. The view of the Supreme Judicial Court of 
 Massachusetts that a claim against the estate of a deceased person is not, 
 under the statute of that state, such a suit as falls within the provision of the 
 removal acts of Congress, is doubtless correct, at least while the proceed- 
 ing is in the Probate court ; but on the appeal of the creditor or executor the 
 statute provided, that the supposed ci-editor shall file a written statement 
 of his claim, in the nature of a declaration, "and like proceedings 
 sliall tnereupon be had in the pleadings, trial and determination of the 
 case as in an action at law prosecuted in the usual manner, except that 
 no execution shall be awarded." This would seem to assimilate the 
 case in the appellate court to an ordinaiy suit; but if so. the difficulty 
 was that the application for the removal was not made before the final 
 trial in the court of original jurisdiction as required by the act. Further 
 as to the Federal jurisdiction in respect to suits concerning the settlement 
 of estates of deceased persons, the probate of Avills, etc., see Mallett v. 
 Dexter. 1 Curtis C. C. R. 178. Compare with Payne v. Hook, 7 Wall. 
 425; Williams v. Benedict, 8 How. 107; Vaughan v. Xorthup, 15 Pet. 1; 
 Pratt V. Northam, 5 Mason C. C. 95; Gaines v. Fuentes, 2 Otto. TO, 
 overruling s. c, 25 La. Ann. So; Tarver v. Tarver. 9 Pet. 174; Gaines v. 
 Chew, 2 How. 619, 650; Gaines v. Xew Orleans, 6 Wall. 642; Gaines v. 
 Hennen, 24 How. 553 ; Fuentes v. Gaines, 1 Woods C. C. 112, where Mr. 
 Justice Bradley reviews previous cases of Mrs. Gaines in the Supreme 
 Court; Case of Broderick's Will, 21 Wall. 503; Burts v. Loyd, 45 Ga. 
 104; Hargroves v. Redd, 43 Ga. 143; Craigie v. McArthur, 9 Ch. Legal 
 News. 156; s. C, 4 Cent. L. J. 237; s. c, 15 Alb. L. J. 121. 
 
 A suit in a State court, to restrain or stay execution of a judgment of the 
 State court by a seizure and sale of the complainant's lands, may be re- 
 moved, under the act of 1875, although such an injunction has been al- 
 lowed by the State court, if the reciuisites as to citizenship and amount 
 exist, notwithstanding the Federal courts are prohibited by the Revised 
 Statutes (sec. 720) from granting an injunction to stay proceedings in a 
 State court; and the Federal court has power, under the act of March 3, 
 1875 (sec. 4), to continue, modify or dissolve the injunction allowed by 
 the State court. Watson v. Bondurant, 2 Woods C. C. 166 (1875), 
 Woods. Circuit Judge; s. C, 3 Cent. L. J. 398. 
 
 Right of removal, under act of 1875, of a railv-ay foreclosure suit held 
 not afl"ected by the pendency of another suit in the State court by stock- 
 holders against the company, in which certain orders had been made as 
 to a receiver; the right of removal was sustained. Scott et «?., Trustees.
 
 40 REMOVAL OF CAUSES. 
 
 name of the real party in interest (as anthorized by the 
 State codes), instead of the person holding the bare legal 
 title. -^o 
 
 AVhere the suit in the State court is in its nature a suit in 
 equity, it must proceed as an equity cause on its removal 
 into the Federal court. The pleadings and practice in law 
 actions, except where othen\dse specially provided by act 
 
 V. Clinton & Springfleld E. E. Co..''(Dnunmond, J.), 8 Ch. Legal Xews 
 210; s. C, 6Bissell, 529. 
 
 As to the removal of torts by one defendant under act of 1866, qucere in 
 Yannevai- v. Bryant, 21 Wall. 41,43; s. c. below, Brj-ant v. Eich, 106 
 Mass. 180. An action of tort against several defendants, for a conspiracrj, 
 can not be removed by part of tliem under the act of 1866, the Com-t be- 
 ing of opinion that there could not be a final determination of the 
 controversy without the presence of all of the defendants. Ex parte 
 Andrews and Mott, 40 Ala. 639 (1867)— Bj'rd, J., dissenting. The opin- 
 ion discusses quite fully the construction of the acts of 1S66 and 1867. 
 The suit was brought in Alabama by citizens of the state against a citi- 
 zen of that state and two citizens of another state ; and it was held that 
 the act of 1867 did not authorize its removal at the instance of the non- 
 resident defendants, lb. 
 
 Definition of ''suit,"* "action."' "case,'" "cases inlaw and equity." 
 see Story Com. on Const., sees. 1645, 1647. Weston v. City of Charles- 
 ton. 2 Pet. 449; Holmes v. Jennison. 14 Pet. 540; Ex jtarte Milligan, 4 
 Wall. 2; Phillips" Pr. (2d Ed.) 13, 55; West v. Aurora. 6 Wall. 139. 
 
 AVhat is a suit or defense arising tinder a lavj of the United States, 
 Tnrton v. Union Pacific E. E. Co., 3 Dillon, 366; Orner v. Saunders. II). 
 284; People v. Chicago & Alton E. E. Co., (construction of act of 
 Congress of April 20, 1871), 6 Ch. Legal Isrews,316; Osborn v. Bank of 
 U. S., 9 Wheat. 738. Other cases cited ante, sec. 8. 
 
 Acts of 1866 — Removal by part of defendants. The grantor in a deed of 
 trust conveying the legal title in fee to a trustee to secure the payment of 
 a debt to a third person can not under the act of 1866 remove a suit to 
 foreclose such deed of trust in Avhich he and the said trustee are de- 
 fendants, leaving the trustee in the State court ; and the reason is that the 
 foreclosure by sale of land requires the presence of the party holding 
 the legal title; and since, under the act of 1866, the cause was not re- 
 movable as to the trustee, it could not be removed by the mortgagor. 
 Gardner v. Brown. U. 8. Sup. Comt, Oct. Term, 1874, 21 Wall. 36; Coal 
 Co. v. Blatchford, 11 Wall. 172; supra., sec. 6; infra, sec. 13. 
 
 •^'Thompson v. Eailroad Companies, 6 Wall. 134; Weed Sewing 3Ia- 
 chine Co. v. Wicks et aZ., 3 Dillon, 261: Bushnell v. Kennedy, 9 Wall. 
 391 ; Act June 1, 1872, 17 Stats, at Large. 197, sec. 5; Eev. Stats., sec. 
 914: Wood. V. Davis. 18 How. 467: Knapp v. Eailroad Co., 20 Wall. 117. 
 Compare Suydam v. Ewing, 2 Blatchf, 359, as to which quoire.
 
 REMOVAL OF CAUSES. 41 
 
 of Congress, are to be conformed, as nearly as may be, to 
 the pleadings and practice in the State com-t of the particu- 
 lar state. But in equity it is otherwise. The pleadings and 
 practice in equity causes in the Federal courts are uniform 
 throughout the United States, and are governed hy the Equity 
 Rules prescribed by the Supreme Court of the United States 
 and by the practice of the Court of Chancery in Great Brit- 
 ain as it existed before the recent changes in the judicial 
 system of that country. The Federal courts have the same 
 chancery jurisdiction in every state, and equity causes must 
 be kept separate and distinct, from their inception to the end, 
 from law actions, and are to be decided by principles of 
 equity of uniform and general application.'^ 
 
 Where the suit in the State court unites legal and equita- 
 hle grounds of relief or of defense as authorized by the 
 codes, and it is removed, as it ma}^ be if the causes for re- 
 moval exist, what is to be done with it in the Federal court, 
 w^here law and equity suits and issues must be kept separate 
 and distinct? In such a case a repleader is necessary, and 
 the case must be cast in a legal mold, or in the equity mold, 
 or be recast into two cases, one at law and one in equity, 
 and the Federal court is undoubtedly competent to make all 
 orders uecessar}^ to this end.'^- 
 
 51 Xeves V. Scott, 13 How. 268. See also Greeu v. Custard, 23 How, 
 484, where the reader ^\ill fiud, and perhaps be amused by, tlie Philippic 
 of Mr. Justice Grier against the code system of pleadings and practice. 
 His remarks are unjust to that system properly understood, but they are 
 too often deserved by the loose practice which has grown up under it. 
 
 52 Sands v. Smith, 1 Dillon, 290. note; Fisk v. Union Pacitic E. E. Co., 
 8 Blatchf. 299; Partridge v. Ins. Co. (set-off), 15 Wall. 573. 
 
 The text states the practice whic^i has been pursued in the Sth Circuit ; 
 and the case of Akerly v. Vilas, 3 Bissell, 332, is not to be understood, 
 we think, as authorizing legal and equitable grounds of relief or defense 
 to be tried in one and the same suit after the removal to the Federal 
 court, nor necessarily to confine the Federal comt to the trial of the 
 issues as made up on the pleadings in the State court. The practice in 
 the Federal courts is quite general to allow amendments after the re- 
 moval, in furtherance of justice and within the scope of the original 
 cause of complaint. Toucey v. Bowen, 1 Bissell. 81 (1855). Huntington, 
 J.; Suydam v, Ewing (practice after removal), 2 Blatchf, 359 (1852),
 
 42 KEMOVAL OF CAUSES. 
 
 Ill lavj cases, pure and simple, no repleader in the Federal 
 courts is necessary, especially since the Practice Act of June 
 1, 1<S72.*^ 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 adapted to present the 
 plaintiff" s case. But although a repleader in such case be 
 not indispensable, it may often be advisable. In cases, 
 however, where legal and equitable matters are united or 
 mingled, it is necessary, as above stated, to frame the 
 pleadings anew after the cause reaches the Federal court, 
 
 Betts, J.; Barclay v. Levee Commissioners, 1 Woods C. C, 254; Dart v. 
 McKinney, 9 Blatchf. 3»9 (1872) . 
 
 53Kev. Stats, sec. 914; Merchants' etc. Xat. Bank v. Wheeler (South. 
 Dist. N. Y.; .Johnson, Circuit .J.), 3 Cent. I.. J. 13 (1875) ; Dart v. Mc- 
 Kinney, 9 Blatchf. 359 (1872). Blatchford, .J., under act of 1866. For- 
 merly in cases removed under the Judiciary Act, and where the pleadings 
 in the Federal court were different from those in the State courts, the 
 practice in some of the courts was to require the plaintiff" after the re- 
 moval to file a new declaration^ the same as if the suit had originally been 
 commenced in the Federal court. Martin v. Kanouse, 1 Blatchf. C. C. 
 149; s. C, 15 How. 198. 
 
 Under the Revised Statutes, sec. 639, the party remoAdng the cause 
 is required to file in the Federal court " copies of the said process against 
 him and of all pleadings, dei)Ositions, testimony or other proceedings in 
 the cruise," and " when the said copies are entered as aforesaid in tlie Cir- 
 cuit court, the cause shall there proceed in the same manner, as if it had 
 been brought there by original process, and the copies of pleadings shall 
 have the same force and elfect, in every respect and for every purpose, as 
 the original pleadings would have had by the laws and practice of the 
 courts of such state, if the cause had remained in the State court." This 
 clearly dispenses with the necessity of new pleadings in the Federal 
 court, where the original pleadings are adai»ted to tlie separate law and 
 equity jurisdiction of that court, — the ob^^ous purpose of this legislation 
 being that tlie Federal court shall take up the cause where it was when 
 it left the State court, and proceed with it as if it had been originally 
 brought in the Federal court. And, in substance, the same pro\asions 
 are made in the act of March 3, 1875. See sees. 3, 4, 6, 7. 
 
 Costs in suits removed from the State court held to be governed, not by 
 the Eevised Statutes, sec. 9G8, but by the statute of the state; hence 
 where, in an action of trespass on the case removed from the State court, 
 the plaintift' recovered less tlian SlOO, it was held that under the statute 
 of Michigan (Comp. Laws, sec. 7290) the defendant was entitled to costs 
 as a matter of right. Scupps v. Campbell (East. Dist. Mich., Brown, .J), 
 3Cent.L. J. 52l''(1876).
 
 EEMOYAL OF CAUSES. 43 
 
 SO as to make it distinctively one at law or one in cquit}^ 
 or by a division into two, the one a law, the other an 
 equity suit.'^* 
 
 SECTION X. 
 
 FROM WHAT COURT THE REMOVAL MAY BE MADE RE3IOVAI> 
 
 HOW ENFORCED CERTIORARI. 
 
 The language of the Revised Statutes, sec. 639, and of 
 the act of March 3, 1875, is: "Any suit in any State 
 court," etc. In Gaines v. Fuentes the Supreme Court of 
 the United States held that an action in form and purpose 
 to annul a will and to recall the decree by which it was pro 
 bated, brought in a State court without separate equity 
 jurisdiction, and which is invested with jurisdiction over 
 the estates of deceased persons, might be removed under 
 the act ot 1867 to the Federal court. Speaking of the case 
 before the court and the act of 1867, Mr. Justice Field ob- 
 served : "This act covered every possible case involving- 
 controversies between citizens of the state where the suit 
 was brought and citizens of other states, if the matter in 
 dispute, exclusive of costs, exceeded the sum of $500. It 
 mattered not whether the suit tvas brought in a State court 
 of limited or general jurisdiction. The only test was, did 
 it involve a controversy between citizens of the state and 
 citizens of other states, and did the amount in dispute ex- 
 ceed a specified amount? And a controversy was involved 
 in the sense of the statute whenever any property or claim 
 of the parties, capable of pecuniary estimation, was the sub- 
 ject of litigation, and was presented by the pleadings for 
 judicial determination . "^^ 
 
 &iSee Dart v. McKinney, 9 Blatchf. 359; Akorly v. Vilas, 2 Bissell. 110; 
 Green V. Custard, 23^How. 484; Fisk v. Union Pacific R. E. Co.. S Blatchf. 
 299; Partridge v. Ins. Co., 15 Wall. 573; Sands v. Smith, 1 Dillon, 290; 
 Thompson v. Railroad Cos.. 6 Wall. 134; Rev. Stats., sees. 639. 914. 
 
 55 Gaines v. Fuentes et al., 3 Cent. L. J. 371 ; s. c, 8 Ch. Legal Xews, 
 225; s. C, 2 Otto, 10. In The Rathhone Oil Co. v. Ranch. 5 West Ya.
 
 44 REMOVAL OF CAUSES. 
 
 Under the act of March 3, 1.S75 (sec. 7), the Circuit 
 court ot the United States, to which any cause shall be re- 
 movable, under its provisions has power to issue a writ of 
 certiorari to the State court, commanding that court to make 
 return of the record in the cause ; and the clerk of the State 
 court is suljjected to criminal punishment who refuses, after 
 tender of fees, to the party applying for the removal a copy 
 of the record.'^'' 
 
 79 (1S71). referred to infra, it was held that no motion to remove a cause 
 can l)e made before a justice of the peace, tliat not being a •' State court " 
 witliin tlie meaning of tlie act of Congress, — l)nt tlie act of Congress is, 
 '' any State court,'' wlietlier of general or limited jurisdiction. 
 
 ^Certiorari — Copies of record — Mandaimcs to enforce removal, etc. — 
 The only object of a certiorari is to bring the record from the State court 
 into the Federal court; hut the writ is unnecessary, when the record of 
 the State court is already before the Federal court. Scott et al., Trustees, 
 V. Clinton and Springfield E. R. Co., 8 Ch. Legal Xews, 210, per Drum- 
 mond, J.; s. C, 6 Bissell, 529. 
 
 The writ of certiorari is often resorted to as the means of effecting, 
 pursuant to law, the removal of the record of a proceeding or cause from 
 one court to another. In England and in some of the states in this 
 country indictments and other proceedings are removed for trial from 
 the lower to the higher court. Bacon's Abridg. title Certiorari ; 1 Bl. 
 Com. 320, 321; 1 Chitty Cr. Law, 334, 571 et seq., 387; State v. Gibbons, 
 1 South. (N. J.), 40, 44; United States v. McKee, 4 Dillon, C. C. (not yet 
 reported) ; s. c, 3 Cent. L. J. 292, on motion in arrest of judgment. 
 
 Section 7 of the act of March 3, 1875. authorizing the Circuit court to 
 issue the writ of certiorari, pro\ides that it shall " command the State 
 court to make return of the record "' of tlie cause removed, which means 
 an exemplified copy of the record. LTnited States v. McKee. supra. And 
 express power is given to the Circuit court '■ to enforce the said writ ac- 
 cording to law.'' 
 
 The provision in the act of March 3, 1875, sec. 7, in respect to certiorari, 
 only extends to " causes which shall be removable under this act.''"' There 
 is no similar provision as to cases removable luider sec. 639 of the Re- 
 vised Statutes; but there is a pro\ision (Rev. Stats, sec. 645) allowing 
 <Jopies of the record in the State court to be supplied by affidavit or oth- 
 erwise, on pi-oof that the clerk of the State court, after demand and pay- 
 ment or tender of his legal fees, refuses or neglects to deliver certified 
 copies of the records and proceedings of tlie State court in the cause. As 
 to pro\asions in special cases, see Revised Statutes, sees. G41, 643; Bench- 
 ley V. Gilbert (suit held not removable by certiorari under sec. 67. act of 
 July 13, 1866), 8 Blatchf. 147. 
 
 Certiorari and habeas corpus under act of 1833, " force act," in respect 
 to removal of causes. Abranches v. Schell, 4 Blatchf. 256.
 
 KKJVIOVAL OF CAUSKS. 
 
 SECTION XI. 
 
 A8 TO VALUE. 
 
 In the EEMOVAL acts to which we have referred, 
 namely, the Eevised Statutes, section 639, and the act of 
 March 3, 1875, it is made an indispensable element of re- 
 movability, that the amount in disjnite, exclusive of costs, 
 shall " exceed the sum or value of live hundred dollars." 
 This language, as well as that which precedes it, is descrip- 
 tive of the nature of suits that may be removed. The sub- 
 ject-matter of the dispute or of the suit must be property, 
 or money, or some right, the value of which in money is 
 susceptible of judicial ascertainment. The language de- 
 scriptive of suits that may he removed excludes criminal 
 cases and controversies relating to the custody of a child, 
 or the right to personal freedom. '^^ 
 
 As to order allowing copies of the papers, etc., in the State court to be 
 filed in tlie Federal court, where the clerk refuses to certify such copies : 
 Akerly V. Vilas, 1 Ahb. U. S. Kep. 284; s. c, 2 Bissell, 110 (1869); 24 
 Wis. 165; Hatch v. C, R. I. & P. R. E. Co., 6 Blatchf. 105. 
 
 Without express authority from Congress, the Federal court can not 
 issue a writ of mandamus to the State court, to require it to proceed no 
 further in the case, and to certify the case to the Federal court. It was 
 admitted that Congress could confer such a power, hut denied that it had 
 done so by the Judiciary Act. Per Drummond, J., Hough v. West. 
 Transp. Co., 1 Bissell, 425 (1864). Or by the act of July 27, 1866; In re 
 Cromie, 2 Bissell, 160 (1869) . Or by the act of July 27, 1868 (Rev. Stats., 
 sec. 640) ; Fisk v. Union Pacific B. R. Co., 6 Blatchf. 362 (1869). See on 
 subject of mandamus and process to enforce removal of cause from State 
 to Federal court, Spraggins v. County Court, Cooke's Rep. 160, Ex 
 parte Turner, 3 Wall. Jr. 258, Crier, J. 
 
 Proceedings in the State court after the rem.oval of the cause vill not he 
 sfaj/fifZ by writ from the Federal court; if the removal was not kiwfully 
 eifected, such writ is improper; if effected, it is unnecessary. Bell v. 
 Dix, 49 N. Y. 232 (1872) ; Fisk v. Union Pacific R. R. Co., 6 Blatchf. 362. 
 See further on this point, ixjst, sec. 17 and note. 
 
 57 Phillips' Pr. (2d Ed.), 82; Lee v. Lee, 8 Pet. 44; Barry v. Mcreien, 
 5 How. 103; Pratt v. Fitzhugh, 1 Black, 271; DeKraff't v. Barney. 2 
 Black, 704; Sparrow v. Strong. 3 Wall. 97; Gaines v. Fuentes, Sup. 
 Court, Oct. Term, 1875. 3 Cent. L. J. 371; s. C, 2 Otto, 10. The suits- 
 nnist relate to claims or property capable of pecuniary estimation. Ih.
 
 46 REMOVAL OF CAUSES. 
 
 It is not sufficient that the value in dispute i^recisely equals 
 $500 ; it must exceed that sum or amount.'^ 
 - The value of the matter in dispute for the purposes of 
 removal is to be determined by reference to the amount 
 claimed in the declaration, petition or bill of complaint. '^^ 
 In actions on a money deinand, the value in dispute is the debt 
 and damages claimed as stated in the petition or declaration, 
 and in the prayer for judgment. For example, if the ac- 
 tion be on a note for a fixed sum, and the principal and in- 
 terest and damages do not all together exceed $500, it is 
 not removable, although the prayer for judgment may be for 
 an amount greater than SoOO. On the other hand, in the 
 case supposed, though the plaintiff might have been enti- 
 tled to a recovery for more than $500, yet if the prayer for 
 judgment be for less than that amount, the case could not 
 be removed.*"^ 
 
 It is sufficient that the amount in dispute exceeds $500 at 
 the time when the right to a removal accrues and is applied 
 for — and interest, when the right thereto exists and it is 
 claimed, may be regarded in determinmg the amount or value 
 in controversy.^^ The State court decisions, proceeding on 
 a different principle, are probabh'' unsound. 
 
 In actions sounding in tort the damages laid by the plaint- 
 iff are the amount of the matter in dispute. '^- 
 
 58 Walker v. Uuited States, 4 Wall. 163 ; W. U. Tel. Co. v. Levi, 47 Ind. 
 552. 
 
 59 Gordon v. Longest, 16 Pet. 97; Kanouse v. Martin, 15 How. 198. 207; 
 Ladd V. Tudor. 3 AVoodb. & Miuot, 325 ; Muns v. Dupont, 2 Wash. C. C. 
 463; Bennett V. Butterworth (detinue), 8 How. 124; Peyton v. Robert- 
 son (replevin) . 9 AVlaeat. 527 ; United States v. McDowell (penal bonds) , 
 4 Cranch, 316; Martin v. Taylor (penalty). 1 Wash. C.C. 1; Postmaster- 
 General V. Cross (penal bond), 4 Wash. C. C. 326; King v. Wilson (ille- 
 gal taxes), 1 Dillon, 555; Hartshorn v. Wright (ejectment), 1 Pet. C. C. 
 64; Crawford V. Bm-nham (ejectment), 4 Am. Law Times, 228; W. U. 
 Tel. Co. V. Levi, 47 Ind. 552. 
 
 60 See Lee v. Watson. 1 Wall. 337. 
 
 eiMcGinnity v. AMiite. 3 Dillon, 350; Bank etc. v. Daniel. 12 Pet. 32; 
 Merrill v. Petty, 16 Wall. 338. 
 
 62 Hulsecamp v. Teel, 2 Dallas, 358; Gordon v. Longest. 16 Pet. 97; 
 West. Union Tel. Co. v. Le^^. 47 Ind. 552.
 
 REMOVAL OF CAUSES. 47 
 
 Where the right to a removal has become perfect and com- 
 plete, it is not in the power of the other party to defeat it 
 in either conrt by release or by amendment of petition and 
 declaring for less than live hundred dollars.*^' 
 
 It is made a condition of the right to an appeal or writ of 
 error to the Supreme Court that the ' ' matter in dispute ex- 
 ceeds the sum or value of two (now five) thousand dollars, 
 exclusive of costs." The cases arising under this clause are 
 collected and accurately stated b}'^ Mr. Phillips,*^ and will be 
 found, in many instances, applicable to questions arisino- in 
 this regard under the removal acts. 
 
 In leaving this point, we may be permitted to observe that 
 in our judgment the most serious objection to the removal 
 acts, as they now exist, is the small amount required to 
 authorize a removal. In view of the inconvenience and ex- 
 pense of litigating in the Federal courts, held often more 
 than one hundred miles distant from the residence of the 
 parties ; the crowded state of their dockets ; and considering 
 that removals, especially by foreign insurance and railway 
 corporations, often have the effect to delay, if not to oppress, 
 those having claims against them, it is quite clear that the 
 amount to justify a removal should be enlarged, or the 
 Federal courts multiplied, or at all events their judicial 
 force increased. 
 
 SECTION xn. 
 
 PARTY ENTITLED TO A REMOVAL CITIZENSHIP 
 
 CORPORATIONS ALIENS . 
 
 Under the 12th section of the Judiciary Act, omitting the 
 case of aliens, the right of removal is limited, as we have 
 shown, to the non-resident defendant, when sued by a resi- 
 dent plaintiff. Under the act of 18G6 it is limited, as we 
 have seen, under the restrictions therein imposed, to the non- 
 63 Kanouse V. Martin, 15 How. 198; Wright v. Wells, 1 Pet. C. C. 220; 
 Green v. Custard, 23 How. 468; Roberts v. Xelson, 8 Blatolif. 74. 
 64 Practice of the Supreme Court, chap. YIH.
 
 48 REMOVAL OF CAUSES. 
 
 resident defendant, and it is not given either to the resi- 
 dent defendant or to the resident plaintiti'. Under the act 
 of 1867 the right is given, as above shown, under the 
 enumerated conditions, to the phiintifi' or defendant ; but in 
 either case it is onl}^ the non-resident citizen who can re- 
 move the case."^ 
 
 Where the jurisdiction of the Federal court depends on 
 citizenMp, it is the citizenship of the parties to the record 
 that is aknie considered, and not of those who, although 
 not parties, may be beneticially interested in the litigation. 
 This rule applies to executors and administrators and 
 trustees.*'*' 
 
 65 Citizenship of a state, for the purpose of conferring Federal juris- 
 diction, lias reference to domicile and residence, not the right of suffrage. 
 D'Wolf V. Kabaud, 1 Pet. 476; s. C Paine C. C. 580; Case v. Clarke 5 
 Mason C. C. 70; Cooper v. Galbraith, 3 Wash. C. C. 546; Shelton v. Tiffin, 
 6 How. 163; Lanz v. Kandall (Dist. Minn., Miller, J), 3 Cent. L. J. 688 
 (1876). Effect of hona fide change of domicile. Jones v. League, 18 How. 
 76; Morgan's Heirs v. Morgan. 2 Wheat. 290; United States v. Myers, 
 2 Brock. 516. 
 
 A State can not make the subject of a foreign: government a citizen of 
 the United States; and resident unnaturalized foreigners may remove 
 causes to the Federal court on the ground that they are aliens, although 
 bj'^ state laws they may vote at elections or hold office under the state 
 government. Lanz v. Kandall (Dist. Minn., Mr. Justice Miller), 3 Cent. 
 L. J. 688 (1876) ; ante, sec. 6, note. 
 
 66 If the administrator or executor and the defendant are citizens of the 
 same state, the Federal court has no jurisdiction, although the intestate 
 or testator was a citizen of a different state. Coal Co. v. Blatcliford, 11 
 Wall. 172; Dodge v. Perkins. 4 Mason C. C. 435; Childress v. Emory. S 
 Wheat. 642; Carter v. Treadwell, 3 Story C. C. 25; Green's. Adminis- 
 tratrix V. Creighton. 23 How. 90. If the action is by or against the de- 
 ceased, the executor or administrator maj' prosecute or defend it without 
 reference to his own citizenship. Clarke v. Mathewson. 12 Pet. 164; 
 S. c. below. 2 Sumner C. C. 262. Tlie citizenship of executors is determined 
 by the state of which they are citizens ; and the circumstance that they 
 have taken out letters in another state does not make them citizens of 
 such state. Amory v. Amory, 36 X. Y. Superior Court Kep. (4 Jones & 
 Spencer). .520 (1874) ; Geyer v. Life Ins. Co.. .50 X. H. 224 (1870). If he 
 remove to another state and become, in respect of jurisdiction, a citizen 
 thereof, he may sue in the Circuit court of the State in which his letters 
 were granted. Rice v. Houston, 13 Wall. 66. ' 
 
 Citizenship of trustees. Bonnafee v. Williams. 3 How. 574; Coal Co. v. 
 Blatchford, 11 Wall. 172; Gardner v. Brown, 21 Wall. 36; Tnompson v..
 
 REMOVAL OF CAUSES. 49 
 
 Ooiy orations created by the states are within all the re- 
 moval acts under consideration, and after much uncertainty 
 and fluctuation of opinion in the Supreme Court of the 
 United States, the settled rule now is that a corporation, 
 for all purposes of Federal jurisdiction, is conclusively con- 
 sidered as if it were a citizeu of the state which created it, 
 and no averment or proof as to citizenship of its members 
 elsewhere is competent or material. ^^ 
 
 The same principle applies to public and municipal cor- 
 porations — they are for jurisdictional jDurposes necessarily 
 
 Railroad Companies, 6 Wall. 134; Weed Sewing Machine Co. v. Wicks 
 et al., 3 Dillon, 261 ; Bushnell v. Kennedy, 9 Wall. 391 ; Act June 1, 1872, 
 17 Stats, at Large, 197, sec. 5; Rev. Stats., sec. 914; Wood v. Davis, 18 
 How. 467; Knapp v. Railroad Co., 20 Wall. 117. Compare Suydara v. 
 Ewing, 2 Blatchf. 359, as to whicli qiuere. 
 
 Wlio are to be regarded as parties to a bill in equity filed by the com- 
 plainant in behalf of himself and such others as might come in and become 
 parties, see Hazard v. Durant, 9 R. I, 602 (1868). 
 
 67 Railroad Co. v. Harris, 12 Wall. 65, 81; Railway Co. v. Wliitton, 
 13 Wall. 270, 285; Louisville etc. R. R. Co. v. Letson, 2 How. 497; 
 Marshall v. The Baltimore & Ohio Railroad Co., 16 How. 314; The Cov- 
 ington Drawbridge Company v. Shepherd et al. 20 How. 232 ; Ohio & 
 Mississippi Railroad Company v. "VVlieeler, 1 Black, 286; Trust Co. v. 
 Maquillan (act of 1867) 3 Dillon, 379; Minnett v. Milwaukee & St. Paul 
 Railway Co. (act of 1867), 3 Dillon, 460. As to the eftect on Federal 
 jurisdiction (where it is dependent upon the citizenship of the parties) 
 of charters granted by different states to the same company or to companies 
 constructing the same line of road, and as to the effect of consolidation on 
 the jurisdiction of the Federal courts, the following are the principal 
 cases: Ohio & Miss. R. R. Co. v. AMieeler, 1 Black, 286; Bait. & Ohio 
 R. R. Co. V. Harris, 12 Wall, 65; Ch. & N. W. R. R. Co. v. Whitton, 13 
 Wall. 270; Williams v. M. K. & T. Railway Co., 3 Dillon, 267. See 
 also, Marshall v. B. & O. R. R. Co., 16 How. 314; Bait. & O. R. R. Co. 
 V. Gallahue's Administrator, 12 Grattan, 658; Goshorn v. Supervisors, 
 1 West. Va. 308 ; Minot v. Phila. Wil. & B. R. R. Co., 2 Abb. U. S. R. 323. 
 See Chicago & Northwestern Railroad Company v. Chicago & Pacific 
 Railroad Company, 8 Chicago Legal News (Nov. 14, 1874), 57, (s. c. 6 
 Bissell, 219), decided by Circuit Judge Drummond, as to the efifect of 
 consolidation under charters of difterent states and the citizenship of the 
 consolidated company. 
 
 What is a sufficient statement and averment of the citizenship of cor- 
 porations to sustain Federal jurisdiction : Express Co. v. Kountze, 8 Wall. 
 342; Ins. Co. v. Francis, 11 Wall. 210; Manuf. Bank v. Baack, 8 Blatchf. 
 137; S. C, 2 Abb. U. S. Rep. 232; Covington Drawbridge Co. v. Shep- 
 4
 
 50 REMOVAL OF CAUSES. 
 
 citizens of the state under whose laws they are created and 
 organized."^ 
 
 A corporation of another state may remove a cause com- 
 menced by attachment of property, although the action 
 could not, by reason of a citizenship in a legal sense out of 
 the district, and inability to serve it within the district, be 
 commenced by original process in the Circuit court of the 
 United States f^ and the right to a removal in such a case is 
 not lost l)y reason of such corporation having an office for 
 the transaction of business in the state in which the suit is 
 
 herd, 20 IIow. 227; Piqiiignot v. Pa. E. R. Co.. IG How. 104; Ohio. & 
 Miss. R. R. Co. V. Wheeler. 1 Black, 286. 
 
 As to the right of joint stock companies, partly but not fully endowed 
 with the attributes of corporations^ to sue in the Federal court, or remove 
 cases to the Federal court on the ground of citizenship or alienage, there 
 is some diversity of judicial decision. The leading cases on this point 
 are: Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Penn. v. Quick- 
 silver Mining Co., 10 Wall. 553; Dinsmore v. Phila. etc. R. R. Co. 
 (McKennan, Circuit Judge), 3 Cent. L.J. 157; Maltz v. Am. Express 
 Co. (Brown, J.), 3 Cent. L. J. 784. 
 
 (■sCowles V. Mercer County, 7 Wall. 118; Barclay v. Levee Commrs. 1 
 Woods C. C. 254. In McCoy v. Washington County, 3 Wall. Jr. C. C. 
 381, it was contended " that the County of Washington, merelj' a sub- 
 ordinate political division of the State of Pennsylvania, is not a citizen 
 of this state, within the meaning of the Constitution or the act of Con- 
 gi'ess, and therefore not suable in this court." "To this we answer,'' 
 says Grier, J., '' that though the metaphysical entity called a corpora- 
 tion may not 1)e physically a citizen, yet the law is well settled, that it 
 may sue and be sued in the courts of the United States, because it is 
 but the name under which a number of persons, corporators and citi- 
 zens may sue and be sued. In deciding the question of jurisdiction, the 
 court look behind the name, to find who are the parties really in interest. 
 In this case the parties to be affected by the judgment are the people of 
 Washington County. That the defendant is a municipal corporation 
 and not a private one, furnishes a stronger reason why a citizen of an- 
 other state should have his remedy in this court, and not in a county 
 where the parties, against whom the remedy is souglit, AAOuld compose 
 the court and jury to decide their own case. This point is therefore over- 
 ruled." A state statute can not limit the liability of a municipal corpo- 
 ration to be sued in the courts of a state, so as to aftect the Fedei-al 
 jurisdiction. Cowles v. Mercer County, 7 Wall. 118; Railway Co. v. 
 '\^'^litton, 13 Wall. 270. 
 
 f»Blivenv. New. Eng. Screw Co., 3 Blatchf. Ill; Barney v. Globe 
 Bank, 5 ib. 107: Sayles v. X. W. Ins. Co.. 2 Curtis, 212.
 
 REMOVAL OF CAUSES. 51 
 
 brought.™ Nor can such a corporation be deprived of the 
 right of removal by state legislation.^^ 
 
 Incorporated bodies chartered by foreign countries may 
 remove cases under the provisions as to aliens."'- 
 
 For jurisdictional purposes national banks are deemed 
 citizens of the state in which they are located,'-^ and they 
 may sue in the Circuit court, although the defendants are 
 citizens of the same state in which the bank is established.^'* 
 The act of July 27, 1868 (Revised Statutes, sec. 640, ante, 
 sec. 2, note), expressly excludes national banks from its 
 provisions ; but this has l)een considered not to prevent the 
 right of removal in their favor, if their case is within any of 
 the other removal acts."'^ 
 
 ™ Hatch V. Chicago etc. R. R. Co., 6 Blatchf . 105. The right of a foreign 
 corporation to remove a cause is not affected bj' the legislature of the 
 state authorizing service of process on Us agent in the state. W. U. Tel. 
 Co. V. Dickinson, 40 Ind. 444 (1872) ; Hobbs v. Manhattan Ins. Co., 56 
 Maine, 417; Morton v. Mut. Life Ins. Co., 105 Mass. 141 (1870). A for- 
 eign corporation, sued by its own assent in another state, is notA\'ith- 
 standing a foreign corporation, and for all purposes of Fedei-al jurisdic- 
 tion a citizen of the state which created it. Pomeroy v. iST. Y. & N. H. 
 R. R. Co., 5 Blatchf. C. C. 120; Hatch v. Ch., R. I. & P. R. R. Co., 6 
 Blatchf. 105. 
 
 "1 Chicago etc. Railway Co. v. Whitton's Adrars., 13 Wall. 270; ante, 
 sec. 3 and cases cited. 
 
 72 Terry v. Ins. Co., 3 Dillon, 408; 1 Kent's Com. 348; see also Angell 
 & Ames on Corporations, sees. 377, 378, and 1 Abbott's U. S. Practice, 
 216; Fisk v. Ch. etc. Railroad Co., 53 Barb. 472: 3 Abb. Pr. Rep. (N. S.) 
 453; King of Spain v. Oliver 2 Washington C. C. 429. 
 
 '3 Chatham Nat. Bank v. Mer. Nat. Bank, 1 Hun, (N. Y.), 702. See, 
 also, to the effect that for jurisdictional purposes national Jbanks are cit- 
 izens of the state where they are located : Davis v. Cook, 9 Nev. 134 
 (1874), following Manuf. Nat. Bank v. Baack, 2 Abb. U. S. Rep. 232; 
 s. c, 8 Blatchf. 137, and approving of the reasoning of Blatchford, J. 
 Same point, Cook v. State National Bank, 52 N. Y. 96 (1873) ; s. c. be- 
 low, 50 Barb. 339, 1 Lans. 494, holding that national banks are citizens of 
 the state in which they are located, and may apply as such for the re- 
 moval of causes. 
 
 "I Union Nat. Bank v. Chicago, 3 Ch. Legal News, 369; Bank of Omaha 
 v. Douglas County, 3 Dillon C. C. 298; Com. Bank v. Simmons. 6 Ch. 
 Legal News, 344. 
 
 "5 In the Chatham Nat. Bank of New York v. Mer. Nat. Bank of West, 
 Va., 1 Hun (N. Y.), 702, a national bank was regarded as a citizen of the
 
 52 REMOVAL OF CAUSES. 
 
 But there is a distinction between National Banking As- 
 sociations and the Receiver's of such associations ; neither 
 under the Revised Statutes (sec. 640), nor under the Na- 
 tional Banking Act (sec. 57), have such receivers as such 
 the right to remove cases from the State courts into the 
 Federal courts. ^^ 
 
 SECTION XIII. 
 
 THE TIME WHEN THE APPLICATION MUST BE MADE. 
 
 Under the 12th section of the Judiciary Act (now Re- 
 vised Statutes, sec. 639, sub-division 1), the application 
 must be made by the defendant " at the time of entering his 
 appea7'ance in the State court." Under this provision the 
 defendant must promptly avail himself of this right, and 
 he waives it if he demurs, or pleads, or answers, or other- 
 wise submits himself to the jurisdiction of the State court." 
 
 state in which it is located and does bnsiness, and the national bank of 
 another state may remove a suit in Avhich it is a defendant, if the case is 
 otherwise within the 12th section of the Judiciary Act, and the applica- 
 tion is made in time, i. e., at the time of " entering its appearance;" and 
 this, notwithstanding the act of July 27, 18G8 (15 Stats, at Large, 226; 
 Rev. Stats., sec. 640), excludes national banking associations from its 
 provisions — the latter being considered as providing for a new class of 
 cases, and not aflecting the right of removal given by preceding legisla- 
 tion. 
 
 'C Bird's Executors v. Cockrem, Receiver. 2 Woods C. C. 32, Brad- 
 ley, J.. 
 
 "West V. Aurora City. 6 Wall. 139; Sweeney v. Coffin. 1 Dillon, 73: 
 Webster v. Crothers, 1 Dillon, 301; Johnson v. Monell, 1 Woohv. 390; 
 McBratney v. Usher, 1 Dillon, 367, 369; Robinson v. Potter (too late 
 after reference and continuance), 43 TST. H. 188; Savings Bank v, Ben- 
 ton, 2 Mete. (Ky.) 240; siiprn, sec. 5. and cases cited. 
 
 As to the right of different defendants to remove at different times, see 
 Smith V. Rines, 2 Sumn. 338; Ward v. Arredondo. I Paine, 410; Beards- 
 ley V. Torrey, 4 Wash. C. C. 28G; Field v. Lownsdale. 1 Deady. 288; 
 Fisk V. Union Pacific R. R. Co., 8 Blatchf. 243. 299; svpra, sec. 5. and 
 dases cited. 
 
 The State court can not restore right of i-emoval by allowing an ap-
 
 REMOVAL OF CAUSES. 53 
 
 Under the acts of 18(36 and 1867 (now Revised Statutes, 
 sec. 639, sub-divisions 2 and 3), the time is enhirged, and 
 the petition for the removal may be made " at any time he- 
 fore the trial or tinal hearing of the suit ' ' in the State 
 court. The word "trial" refers to cases at law" — " hear- 
 mg," to suits in equity. '^^ Under this language the petition 
 for the removal Tnay, it is certain, be made at any time be- 
 fore entering upon the final trial, or the hearing on the 
 merits ; and it must be made l)efore final judgment in the 
 court of original jurisdiction, and it is too late to make it 
 after the cause has reached, and is pending in the State 
 appellate court.™ 
 
 "Before tinal hearing or trial clearly means," says Mr. 
 
 pearance to be entered nunc pro tunc. Ward v. Arredondo, 1 Paiue, 
 410; Gibson v. Johnson, Pet. C. C. 44. 
 
 7SVannevar v. Bryant, 21 Wall. 41, 43,|)er Waite, C. J.; S. c. below, 
 Bryant v. Kich, 106 Mass. 180. 
 
 79 Stevenson v. Williams, 19 Wall. 572; Yannevar v. Bryant, 21 Wall. 
 41, 43; Waggener v. Cheek, 2 Dillon, 560: Kellogg v. Hughes, 3 Dillon, 
 357 ; Dart v. McKinney, 9 Blatchf. 359 ; Johnson v. Monell (change of 
 residence pending suit), 1 Woohv. 390; Minnett v. Milwaukee & St, 
 Paul Eailway Co., 3 Dillon, 460, denying Galpin v. Critchlow, 13 Am. 
 Law Keg. (N. S.), 137; s. c, 112 Mass. 339, and Wliittier v. Hartford 
 Ins. Co., 14 Am. Law Keg. (N. S.), 121 ; s. c. 55 X. H. 141 ; see Lis. Co. 
 v. Dunn, 19 Wall. 214, 225; Akerly v. Vilas, 1 Abb. U. S. Kep. 284; s. 
 C. 2 Bissell, 110: Mm-ray v. Justices, 9 Wall. 274; Miller v. Fiim, 1 Xeb. 
 254 (1867); Price v. Sommers (N. D. Ohio, Welker, J.), 8 Ch. Legal 
 News, 290 (1876); Fasnacht v. Frank (U. S. Sup. Court, Oct. 1874), 
 23 Wall. 416; Craigie v. McArtlmr, 9 Ch. Legal News, 156. 
 
 What was a "final trial" within the meaning of the act of 1867 (Rev. 
 Stats., sec. 639, cl. 3), was considered in AYest Virginia in a case of un- 
 la^N-ful detainer, commenced before a justice of the peace, where judg- 
 ment went against a citizen of another state, who appealed to the Cir- 
 cuit court, and then applied to remove the case to the Federal court un- 
 der the act of 1867. The lower court denied the application, and ren- 
 dered judgment against the defendant, and on appeal the Court of Appeals 
 reversed the judgment, resting its decision upon two grounds: 1. No 
 motion to remove could have been made before the justice, that not be- 
 ing a " State court " within the meaning of the act of Congress. 2. The 
 case on appeal from a justice is to be tried de novo in the Circuit court 
 the same as if never tried, and hence there was no "final trial '" within 
 the intent of the act of Congress. Kathbone Oil Co. v. Kauch, 5 West 
 Va. 79 (1871).
 
 54 REMOVAL or CAUSES. 
 
 Justice Field, " before final judgment in the court of orig- 
 inal jurisdiction, where the suit is brought. Whether it 
 may not mean still more — before the hearing or trial of the 
 suit has commenced, which is followed by such judgment 
 — may be questioned ; but it is unnecessar}^ to determine 
 that question in this case."^ It would seem, however, that 
 it would be too late to defer the application, until the trial 
 was actually entered on.^^ 
 
 Althou2:h there is some conflict between the State and 
 Federal courts on the point, yet the weight of the cases and 
 the authoritative view is, that if the trial court has wholly 
 set aside a verdict and granted a new trial, or if the State 
 appellate court has wholly reversed the judgment and re- 
 manded the case to the court of original jurisdiction for a 
 trial de novo, then, in either event, it is not too late under 
 the act of 1866 or 1867, to apply to remove the cause, as it 
 is in the same posture as before the first trial or hearing 
 was had.^^ 
 
 80 Stevenson v. Williams, supra; Beery v. Irick, 22 Gratt. (Va.)..4S7 
 (1872); Williams v. Williams, 24 La. Ann. 55; Douglas v. Caldwell, 
 ("final hearing" what?) 65 N. C. 248 (1871). 
 
 81 Application for i-emoval, under the acts of 1866 and 1867, must 
 he made before trial or hearing commences; it is too late if made during- 
 the progress of the trial, and this principle is not varied by the fact, that 
 during the trial an amendment of the declaration was allowed on which 
 issue was not joined at the time the petition to remove the case was filed. 
 AdamsExpressCo. V.Trego, 35 Md. 47 (1871); see also Lewis v. Smj-the 
 (Woods, Circuit Judge), 2 Woods C. C. 117 (1875), referred to infra. 
 
 «-^Vannevar v. Bryant. 21 Wall. 41, 43, per Waite, C. J.; S. C„ 106 
 Mass. 180; Stevenson v. Williams, 19 Wall. 572; Waggener v. Cheek. 2 
 Dillon. 560 ; Kellogg v. Hughes, 3 Dillon, 357 ; Dart v. McKinney. 
 Blatchf . 35!i ; .Johnson v. Monell (change of residence pending suit) . 1 
 Woolw. 390; Minnett v. Milwaukee & St. Paul Kaihvay Co., 3 Dillon, 
 460, denying Galpin v. Critehlow, 13 Am. Law Keg. (X. S.) 137; s. C. 112 
 Mass. 339, and Whittier v. Hartford Ins. Co., 14 Am. Law Reg. (N. S.) 121 ; 
 S. C, 55 N. H. 141. See Ins. Co. v. Dunn, 19 Wall. 214. 225; Akerly v. 
 Vilas, 1 Abb. U. S. Rep. 284; s. c, 2 Bissell, 110; Murray v. Justices, 9 
 Wall. 274; Fasnacht v. Frank, U. S. Sup. Court, Oct. 1874, supra ; Dart v. 
 Walker. 4 Daly (IST. Y.), 188 (1871), also holding that under act of 1866 
 or 1867 removal may be had after a reversal and order for a new trial. 
 
 The cases in the State courts holding a different doctrine from that 
 stated in the text are not sound expositions of the statute. The follow-
 
 REMOVAL OF CAUSES. 55 
 
 The case of the Insurance Co. v. Dunn (19 Wall. 214) 
 affords a strikmg illustration of the meaning of the phrase, 
 ^^ final judgment " in the acts of 1867. The plaintiff in that 
 case had a verdict and judgment thereon in one of the 
 courts of Ohio. The defendant (the Insurance Company) 
 under the statute of the State, applied for a new trial, and 
 gave bond in that behalf. This had the effect, under the 
 statute of the state, to vacate the verdict and Judgment as if 
 a new tiial had been granted, except that lien of the judg- 
 ing are some of the more important of these : Hall v. Ricketts, 9 Bush 
 (Ky), 366 (1872); Akerly v. Vilas, 24 Wis. 165; Home Life Ins. Co. v. 
 Dunn, 20 Ohio St. 175; Crane v. Eeeder, 28 Mich. 527 (1874) ; Galpin v. 
 Critchlow, 112 Mass. 339 (1873). 
 
 Where the Supreme Court of a State has reversed the decree of the 
 lower court and remanded the cause unth instructions to dismiss the bill, 
 it is too late to apply for a removal to the Federal court under the act of 
 March 2, 1867. Boggs v. Willard, 3 Bissell, 256 (1872), Blodgett, J. But 
 where the State Supreme Court has ordered a new trial, the plaintiff may 
 dismiss and commence in the Federal court. Hazard v. Chicago etc. R. 
 R. Co., 4 Bissell, 453. Effect of the decision of the State Supreme Court 
 in such a case considered. lb. 
 
 The case of McKinley v. Chicago & ^N". W. Railway Co., now in the 
 Supreme Court of the United States on a writ of error to the Supreme 
 Court of Iowa, presents a new and interesting point. The case in the 
 State court was for personal injury. The plaintiff had a verdict and 
 judgment helow. The railway company appealed to the Supreme Comt 
 of the State, which reversed the judgment and ordered a new trial, and 
 issued its procedendo, which was filed within sixty days in the lower court. 
 Thereupon the railway company in due form made and filed its petition 
 and l>ond for removal of the cause to the Federal coint under the acts of 
 1867 and 1875. This was in vacation, and tliere was no order upon it. 
 By the law of the State, causes in the Supreme Court are to be remanded 
 for a new trial, if a new trial be ordered (Code, sec. 3206), and there is a 
 pro-v-ision for recalling & procedendo, if a petition for rehearing be filed in 
 sixty days (Code, sec. 3201). After the petition and bond for removal had 
 been filed as above, but within the sixty days, a petition for rehearing- 
 was filed in the Supreme Court of the State, and the procedendo was re- 
 called. The railway company moved the State Supreme Court to dismiss 
 the petition for rehearing, because the court had no further jurisdiction 
 of the cause, inasmuch as the same was duly removed to the Federal court, 
 after the procedendo was filed and before it was recalled. The State Su- 
 preme Court overruled the motion, and subsequently granted the rehear- 
 ing and rendered judgment against the railway company, which has sued 
 out a wi-it of. error, which is now pending in the Supreme Court of the 
 United States.
 
 56 REMOVAL OF CAUSES. 
 
 ment remained as security for the plaintiff . When the case 
 was in this status, the compan}'^ applied to remove the canse 
 under the act of 1867, and it was held that there had been 
 wo final trial, that the application was in time, and that the 
 suit was removable ; and the subsequent judgment in the 
 State court was reversed by the Supreme Court of the United 
 States. ^^ 
 
 But a cause can not be removed where a verdict has been 
 rendered, and a motion is pe^icZm^ to set the verdict aside. 
 Such a motion must be disposed of, and be granted, so that 
 the right to a second trial is complete, before the cause can 
 be transferred, since, says the Chief Justice, " every trial of 
 a cause is final until, in some form, it has been vacated. 
 Causes can not be removed to the Circuit court for a review 
 of the action of the State court, but onl}^ for^trial. The Cir- 
 cuit court can not, after a trial in a State court, determine 
 whether there shall be another. That is for the State court. 
 
 8=' 111 Ohio, where a case is commenced in the Coift-t of Common Plea.s, 
 where a trial is had, and an appeal taken to the District court of the 
 State, it is too late, under the act o/1875, to apply to_ remove the case to 
 the Federal court. Welker, J., distinguishes this case from Ins. Co. 
 V. Dunn, 19 Wall. 214, and applies the doctrine of Stevenson v. Williams, 
 19 Wall. 572. and regards the hearing in'! the Common Pleas as '• final " 
 within the meaning of the removal act, although the effect of the appeal 
 is to vacate the decree and entitle the party to a trial de novo. Price v. 
 Sommers (Xorth. Dist. Ohio), 8 Ch. Legal Xews. 290 (187G). Similar 
 principle in respect to attempt to remove from an appellate court a case 
 which originated in the Probate court, after a decision and appeal : it 
 was held not removable. Craigie v. McArthur (Dist. Minn.. Dillon and 
 Kelson, JJ.),9 Ch. Legal Xews, 156 (1876) ; s. c, 4 Cent. L.J. 237; s. C, 
 15 Alb. L. J. 121. The plaintiff" had a judgment on a verdict; the de- 
 fendants sued out a writ of review and then applied, the judgment re- 
 maining unreversed, to remove the cause under the Eevised Statutes, sec. 
 639. cl. 3; held, under the legislation of the state as to effect of the 
 flj-st judgment and of the proceeding for review, and distinguishing the 
 case from Ins. Co. v. Dunn (19 Wall. 214). that the cause was not remov- 
 able at that stage. Whittier v. Hartford Fire Ins. Co., .55 X. H. 141 
 (1875), commented on, and its principle applied to a case where the ap- 
 plication for removal was made after verdict set aside and a new trial 
 granted. Cliandler v. Coe, 5G X. H. 184. Contra, Minnett v. Mil. & 
 St. Paul Railroad Co., 3 Cent. L. J. 281 ; s. c, 3 Dillon, 460, and see cases 
 cited ante.
 
 REMOVAL OF CAUSES. 57 
 
 To authorize the removal, the action must, at the time of 
 the application, be actually pending for trial. "^ 
 
 Under the acts of 1866 and 1867, it is sufficient, it seems, 
 as .respects citizenship, that the defendant applying for the 
 removal is, at the time of tiling his petition therefor, a citi- 
 zen of another state, and the plaintift' a citizen of the state 
 in which the suit is brought. ^^ 
 
 One of several defendants sued as copartners may, if the 
 other requisites exist, have the cause removed into the Fed- 
 eral court, so far as concerns himself, under the act of 1866.^ 
 
 Under the act- of March 3, 1875 (sec. 3), the time for the 
 removal is greater than under the Judiciary Act, but not so 
 o-reat as under the acts of 1866 and 1867 last noticed. The 
 act of 1875 requires the petition in the State court to be 
 made and tiled therein ' ' before or at the term at which such 
 cause could be first tried, and before the trial thereof." The 
 word term as here used means, according to the construction 
 which it has received in the 8th judicial circuit, the term at 
 which, under the legislation of the state and the rules of 
 practice pursuant thereto, the cause is tirst triable, i. e., sub- 
 ject to be tried on its merits ; not necessarily the term when, 
 owing to press of business or arrearages, it may be first 
 reached, in its order, for actual trial. This act gives the 
 right of removal to either party — the resident as well as the 
 non-resident party — and no affidavit of prejudice is required ; 
 and it was the obvious purpose of Congress by the use of 
 the words " before or at, etc., the term at which the cause 
 could he first tried," etc., to require the election to be taken 
 at the first term at which, under the law, the cause was tri- 
 able on its merits. The judicial construction elsewhere of 
 the act of 1875 is in accordance with these views. ®^ 
 
 siVannevar v. Bryant. 21 Wall. 41,43; s. C..106 Mass. 180; seeWhittier 
 V. Hartford Ins. Co. 55 N. H. 141. 
 
 S5MeGinnity v. White, 3 Dillon, 350. Contra, Dart v. Walker, 4 Daly 
 (X. Y.), 188 (1871). See -hifra, sec. 14 . 
 
 ^Ib.; and see supra sec. 6 and sec. 9, note. 
 
 87 Ames V. Colorado Central R. E. Co. (Hallett, J.. February. 1877), 4 
 Cent. L. ,J. 199.
 
 58 REMOVAL OF CAUSES. 
 
 The decisions under the acts of 1866 and 18(57, that a re- 
 moval may be applied for, after a verdict has been set aside 
 and a new trial granted, or the judgment of the trial court 
 has been wholly reversed and a trial de novo awarded, ai*e, 
 it is supposed, inapplicable under the act of 1875, which re- 
 quires the petition for the removal to be made " before or at 
 etc., the term at which the cause could he first tidied and be- 
 fore the trial thereof." It is clearly too late to apply for 
 the removal after a trial has once begun, although it may 
 result in a mistrial, or in a verdict or judgment that may be 
 set aside with an order for a new trial. ^ Accordingly it has 
 
 '' We understand that Judge Davis, when sitting as circuit justice for 
 the district of Indiana, held that the application for removal must be 
 made at the first term at which the cause could be put at issue, and be- 
 fore the ti-ial thereof." Buskirk's Indiana Practice, 459. 
 
 A cause was at issue and could have been tried, but hy consent urns con- 
 tinued. Judge Diummond held, under the act of 1875, that it was too 
 late to remove the case at a subsequent term, as the continuance was 
 neither the act of the law nor of the court. Scott et al., Trustees, v. 
 Clinton & Springfield K. K. Co., 8 Chicago Legal Xews, 210; s. c, 6 Bis- 
 seli, 529, where the case thus decided is referred to and distinguished. 
 
 A chancery cause can not be tried until the issues are made up; — if there 
 is no delay in completing the issues on the part of the applicant for the 
 removal, the application is in time, if made before the lapse of a term at 
 which the cause could have been tried. Whether laches in making up 
 issues will defeat right of removal, if removal be applied for before the 
 issues are completed, qucere? Scott et al.. Trustees, v. Clinton & Spring- 
 field R. R. Co., 8 Chicago Legal News, 210; s. c. 6 Bissell, 529, Drum- 
 luond, J. 
 
 Where a I'eplication under the local law and practice is necessary to 
 complete the issue, and where there is no default in making up the is- 
 sues hy the party who applies for a removal of the cause, no term has 
 passed at which the cause could have been tried within the meaning of 
 the act of March 3, 1875, sec. 3. Mich. Central R. R. Co. v. Andes Ins. 
 Co. (S. D. Ohio, Swing, J.), 9 Ch. Legal News, 34. In this case. Swing, 
 J., approves of the construction of the act of 1875, in respect to the time 
 of removals given by Drummond, Circuit .ludge, in Scott et al., Trustees, 
 V. Clinton etc. R. R. Co., supra. 
 
 88 A party entitled to a removal of a cause, who proceeds to trial with- 
 out apphing for a transfer to the Federal court, is not, under the act of 
 1875, entitled to a removal at a subsequent term, although a new trial 
 may have been granted him ; in this respect the act of 1875 is difterent 
 fi-om the acts of 1866 and 1867. Young v. Andes Ins. Co. (S. D. Ohio, 
 Swing, J.), 3 Cent. L. J. 719 (1876).
 
 REMOVAL OF CAUSES. 59 
 
 been held, under the act of March 3, 1875, that the appli- 
 cation for removal must be made, before the trial on its 
 merits, or on a question lohich results in a final judgment or 
 decree, commences. It is therefore too late to apply for 
 the removal after the pleadings have been read and the ev- 
 idence submitted, and before the argument has begun. 
 
 Where the only objection in the Federal court to the re- 
 moval is that the application was not made in the State 
 court in time, this objection may undoubtedly be waived 
 by acquiescence, or even the failure of the other party to 
 make it the ground of an objection to the jurisdiction of the 
 Federal court in proper time ; and it will be waived, we 
 
 !« Lewis V. Smythe (Woods, Circuit Judge), 2 Woods C. C. 117 (1875). 
 Construing the word "trial," as used in section 3 of the act of 1875, in 
 reference to the time when the removal must he applied for, Woods, 
 Circuit Judge, in Lewis v. Smythe, 2 Woods C. C. 117, 118, 119, says: 
 •' By the word • trial,' as used in the statute, I do not understand the 
 argument, investigation or decision of a question of law merely, unless 
 it is decisive of the case, and the question results in a final judgment 
 or decree. The decision of the court on a demurrer, for instance, or on 
 exceptions to the sufficiency of a plea, which is followed by amendments 
 or new pleadings, and which does not end the case, is not the trial meant 
 by the statute." The trial meant is one which " involves the facts of the 
 case ; and whenever the investigation of the facts of a case simply, or the 
 facts in connection Avith the law is entered upon by the court alone, or 
 by the court and juiy, the trial maybe said to have begun." The peti- 
 tion must be filed not only before " the trial is completed and ended, but 
 before it commences." 
 
 Construing the word "trial" in the act of 1875, sec. 3, see Price v. 
 Sommers (North. Dist. Ohio), cited supra, 8 Ch. Legal News, 290. 
 
 In Ames v. Colorado Central K. K. Co. (Dist. Col. ; Dillon & Hallett, 
 JJ.) 4 Cent. L. J. 199, it was ruled, under the act of 1875, that the appli- 
 cation to remove a cause must be made to the State court at or before 
 the term in which according to the local law and practice of the court, 
 the cause coiJd have been finally heard. Accordingly where issue was 
 joined nearly one month before the end of a term of the State court, 
 and it does not appear but that a final hearing could have been had at 
 that term, an application thereafter made to remove the cause under 
 the act of 1875 is too late. It was also decided that the act of 1875, 
 which provides that any suit " now pending or hereafter brought in any 
 State court", of the description therein specified, may be removed into a 
 Federal court, is not applicable to a suit brought in a Territorial court, 
 although on the admission of the Territory as a State such suit passed 
 into the jurisdiction of a State court. Ih.
 
 ^0 REMOVAL OF CAUSES. 
 
 think, unless the objection be made hy the party entitled to 
 make it, before he takes any affirmative action in the 
 Federal court, or voluntarily submits himself to its action. ^^ 
 In one case, the mere failure to move to remand at the 
 same term at which the record was liled, the party making 
 the motion not having taken any steps in the cause after its 
 removal, was held not to preclude making the objection at 
 the next term.^^ 
 
 The act of March 3, 1875, sec. 2, extends, intei' alia, to 
 " ani/ suit * * now pending ; '" and by section 3, the 
 petition for removal must be filed in the State court " be- 
 fore or at the term at which said cause could be first tried, 
 and before the trial thereof." It has been contended that 
 the general language of the act "now pending," does not 
 include cases, where prior to the passage of the act a term of 
 the State court had passed, at which the cause might have 
 been tried, though it was not ; nor to cases where there had 
 been a trial prior to the passage of that act, and a new trial 
 had been ordered, and the cause was pending for such re- 
 trial when the act took effect. But the Federal Circuit 
 courts have uniformly, and we think, properly decided other- 
 wise, and have held that causes which might have been 
 tried before the passage of the act of March 3, 1875, but 
 were not, and which were pending for trial when that act 
 went into operation, as well as causes once tried, but in 
 which a new trial had been ordered, and which were pend- 
 ing, ready for retrial when the act took effect, are re- 
 
 90 The objection that the application to remove the cause was not 
 made in time maybe conclusively loaived by submitting to the jurisdiction 
 of the Circuit court by taking testimony and bj- delaying the objection 
 for an unreasonable time. French v. Hay, 22 Wall. 244; Ames v. Colo- 
 rado Central E. K. Co. (Dist. Col.), 9 Ch. Legal Xews, 132, (1876); 
 s. c, 4 Cent. L. J. 199; Young v. Andes Ins. Co., (S. D. Ohio; Swing 
 J.), 3 Cent. L. J. 719, (1876). 
 
 91 See opinion of Yaple. J., in Kaufman v. McNutt, (Sup. Court of Cin.) , 
 3 Cent. L. J. 408: Kain v. Texas Pacific R. R. Co., (under act of July 
 27, 1868, East. Dist. Texas, Duval. J.), 3 Cent. L. J. 12 (187.5) ; Carring- 
 ton V. Florida R. R. Co. (Benedict, J.), 9 Blatchf. 467 (1872).
 
 EEMOVAL OF CAUSES. 61 
 
 movable, ^'^ if the application therefor be made after the 
 passage of the act and within the time therein required. ^'^ 
 
 SECTION XIV. 
 
 MODE OF MAKING APPLICATION FOR REMOVAL BOND, ETC. 
 
 Underthe Revised Statutes, sec. 639, the applicant for the 
 removal must file his petition therefor, stating the grounds 
 for the removal, and offer in the State court ffood and suffi- 
 cient surety for his entering in the Circuit court, on the first 
 day of its next session, copies of the process [proceedings] 
 against him, and of all pleadings, depositions and other pro- 
 ceedings in the cause, etc. This petition is not required to 
 be verified. 
 
 Under the act of 1867 (Revised Statutes, sec. 639, sub- 
 division 3), there is required in addition to the petition for 
 VQYtiOYAX ?i\\ affidavit of prejudice or local injiiience, which, 
 wherever possible, should be made by the party himself ; or 
 if the petition is on behalf of a corporation, by the presi- 
 dent or managing or other proper officer, or by some person 
 authorized to control the case.^^ The decisions upon the 
 
 92 Crane v. Eeeder, (Emmons, Circuit Judge) , 15 Albany L. J. 103, 
 denying correctness of tlie contrarj- decision of tlie Supreme Court of 
 Michigan, 28 Mich. 527; Andrews, Exec. v. Garrett, (Swing, Dist. Judge), 
 3 Cent. L. J. 797; s. C. Ch. Legal Xews (January 8, 1876), p. 132; Mer. 
 and Manuf. Bank v. Wheeler, (Johnson, Circuit Judge), 3 Cent. L. J. 13; 
 Hoadley v. San Francisco, (Sawyer. Circuit Judge) , 8 Cliicago Legal 
 Xews, 134. Tlie decisions in tlie 8tli judicial circuit have always been in 
 accordance with this view. 
 
 93 Ames V. Colorado Central R. R. Co., (DiUon & Hallett, JJ.) Feb. 
 1877, cited supra. 
 
 9* See Anon., 1 Dillon, 298. note; Trust Co. v. Maquillan, 3 Dillon, 
 379, 380, where Mr. Justice Miller is reported as saying: " I am not im- 
 pressed with the soundness of the argument that, because corporations 
 can not make an affidavit, except through the proper officers, thej^ were 
 not within the contemplation of Congress. I think that the proper offi- 
 cers of corporations may make the necessary affida\'it to procure the re- 
 moval." 
 
 The president, and perhaps the general manager of a railway com-
 
 62 REMOVAL OF CAUSES. 
 
 point whether an attorney may make the affidavit in any 
 case, or what officers of a corporation may make it, are 
 few. 
 
 It is not necessarj^ to state in the affidavit tlie reasons or 
 facts showing the local inflnence or prejudice ; for this is not 
 a traversable matter either in the State or Federal court.^^ 
 
 As the party himself is a non-resident and may not be as 
 well advised as his local agent or attorney as to the exist- 
 ence of local influence or prejudice, there would seem to be 
 no reason for requiring the affidavit in all cases to be made 
 b}^ the party ; and some parties, as infants or persons non 
 compos mentis^ could not make it. If an attorney or agent 
 makes the affidavit, it is good practice to state why it is not 
 made by the party himself. 
 
 Under the act of March 3, 1875, the removal is effected 
 
 pany, \%prima facie authorized to make the required affidavit iu such a case. 
 Minnett v. Milwaukee etc. Kailway Co., 3 Dillon C. C. 460 (1875), Nel- 
 son, J.; s. c, 13 Alb. Law J. 254. In Kain v. Texas Pacific R. R. Co., 3 
 Cent. L.J. 12, the petition for removal was verified by the solicitor of the 
 coi-i)oratiou defendant, authorized to appear and conduct suits for it in 
 the state of Texas ; no question was made as to his authority or right to 
 file and verify the petition, which was under the act of July 27, 1868. 
 (Revised Statutes, sec. 640.) 
 
 The superintendent of a railroad company having, as incident to his 
 office as such, no authority to represent the companj'in judicial proceed- 
 ings, the Supreme Court of Massachusetts decided that such an officer, 
 unless specially authorized by the corporation, has no power to make the 
 affidavit of local influence or prejudice required by the act of 1867, and 
 on this ground held, that the State court rightfully refused to transfer 
 the cause. Gray, C. J., observed: "'The petition may doubtless be 
 signed, and the affidavit made by some person authorized to repre- 
 sent the corporation. But the authority of any person assuming to rep- 
 resent it must appear. No officer of a corporation, unless specially au- 
 thorized, has power to bind the corporation, except in the discharge of 
 his ordinary duties."' Mahone v. Manchester etc. R. R. Corp., Ill Mass. 
 72 (1872). ' 
 
 The affidavit of local prejudice or influence under the act of 1867 may 
 he taken and certified in conformity with the laws of the state, as there 
 is no act of Congress regulating this subject. Bowen v. Chase, 7 Blatchf. 
 255. 
 
 95 Anon., 1 Dillon, 298, note; Meadow Valley Mine Co. v. Dodds, 7 
 Kev. 143.
 
 REMOVAL OF CAUSES. 63 
 
 by the proper party making and tiling, in the State court, a 
 petition in the suit to be removed, setting forth therein the 
 grounds for the removal. This petition is not required to be 
 verified. ^'^ Petitions for removal usually state not only the 
 grounds for the removal arising from citizenship or the na- 
 ture of the subject-matter, but also that the amount in dis- 
 pute exceeds $500. Where, however, the amount is shown 
 by the pleadings in the case to exceed this sum, it is not 
 necessary, although it is not improper, to make a statement 
 in the petition for the removal as to the sum or value in dis- 
 pute. ^^ The petition for removal should be carefully framed, 
 and in removals under the Revised Statutes, sec. 639, the 
 prudent practitioner will follow the exact language of the 
 statute in statino- the o-rounds for the removal. ^^ 
 
 It has been decided by some of the State courts that the 
 petition for the removal must expressly state that the parties 
 were citizens of the respective states at the time the suit was 
 commenced, and that it is not sufficient to state it in the pres- 
 ent tense, or as of the time when the petition for removal 
 was made or filed. ^^ This view is open to some doubt. It 
 overlooks the purpose of the Constitution and of Congress 
 in providing for removals, which was to give a resort hj the 
 non-resident party to a tribunal in which the citizen of the 
 state should have no advantage over him. It is inconsistent 
 with several adjudications under the latter acts.^*' Whatever 
 may be the law on the point, the careful attorney will state 
 
 96 Connor v. Scott, 3 Cent. L. J. 305 ; Merchants' etc. Bank v. Wlieeler, 
 3 Cent. L. J. 13, per Johnson, Circuit Judge. 
 
 9' Abranches v. Schell, 4 Blatclif. 256; Turton v. U. P. K. K. Co., 3 
 Dillon, 366. 
 
 9S Eailway Co. v. Ramsey, 22 Wall. 328. where the requisites, function 
 and effect of the petition for removal are tersely stated by the Chief 
 Justice. Amory v. Amory, 36 N. Y. Sup. Ct. Hep. 520. 
 
 99Pechner v. Phoenix Ins. Co., IST. Y. Court of Appeals, May, 1875; s. 
 C, 6 Lans. 411 ; Holden v. Putnam Fire Ins. Co., 46 jST. Y. 1 ; Indianapo- 
 lis etc. R. R. Co. V. Risley, 50 Ind. 60; Sa\ings Bank v. Benton, 2 Mete. 
 (Ky.) 240; People v. Superior Court, 34 111. 356; Tapley v. Martin, 116 
 Mass. 275 (1874). 
 
 100 Johnson v. Monell. 1 Woohv. 390; McGinnity v. White, 3 DiUon, 
 350.
 
 64 REMOVAL or CAUSES. 
 
 in his petition for removal that the plaintiff, when the suit 
 in the State court was commenced, was and still is a citizen 
 of the state in which the suit is Iji'ought, etc., etc. 
 
 Where it is sought to remove a suit on the ground that 
 it is one " arising under the Constitution, or laws or treaties 
 of the United States," (Act of March 3,1875, Sec. 2), it 
 should appear from the pleadings or the petition for the re- 
 moval, or both, that the case is one of this character. ^"^ If 
 this does not appear from the pleadings, that is, from the 
 averments of facts therein or the nature of the case made 
 thereby, then it must be made to appear by the petition for 
 the removal ; and the Circuit Judge for the Kinth Circuit, m 
 a recent opinion where the point is carefully examined, has 
 reached the conclusion, and enforced it by very persuasive 
 arguments arising from the delay, inconvenience and abuse 
 which would follow from a different practice, that the peti- 
 tion for the removal must state the facts (unless they ap- 
 pear in the pleadings) which show the case to be one of 
 Federal cognizance, and that it is not sufficient to state 
 generally that the case is one arising under the Constitution 
 or Laws of the United States. ^''- 
 
 iw Construction of this clause in act of 1875. See cmte, sec. 8. 
 
 i02Trafton v. Nougues,13 Pacific Law Rep., 40; s. C. 4 Cent. L. J. 228. 
 After stating the delay and obstruction to the administration of justice, 
 which would result from allowing the petitioner for the removal to effect 
 it on his mere statement that the case was one arising under the Consti- 
 tution or Laws of the United States,— the duty of the Federal court to 
 remand the cause at any stage when its non-federal character appears — 
 the territorial extent of the Federal jurisdiction— the increased cost of 
 litigation in the Federal courts— the abuse of the right by unscrupulous 
 persons, to obtain delay or to harrass their adveisarj-, — Mr. Circuit Judge 
 Sawj-er concludes his opinion, in the case just cited, as follows: "In 
 view of these, in my judgment, weighty considerations, therefore, I 
 think it of the highest importance to the riglits of honest litigants, and 
 to the due and speedy administration of justice, that a petition for 
 transfer should state the exact facts, and distinctly point out what the 
 question is, and how and where it will arise, which gives jurisdiction to 
 the court, so that the court can determine for itself from the facts, 
 whether the suit does really and substantially involve a dispute or con- 
 troversy within its jurisdiction. Whenever, therefore, the record fails 
 to distinctly show such facts in a case transferred to this court, it will be
 
 REMOVAL OF CAUSES. 65 
 
 Surety — Bond. — Under section 639 of the Revised Stat- 
 utes, good and sufficient surety is to be oifered in the State 
 <50urt, at the time of filing the petition for the removal, for 
 the petitioner's " entering in the Circuit court on the 
 first day of its next session copies of the process," etc. This 
 is substantially the requirement in this regard of the act of 
 March 3, 1875, (sec. 3), except that the surety is to be given 
 by a " bond " which is conditioned, not only for the entering 
 of a copy of the record of the State court in the suit, but for 
 ''paying all costs that maybe awarded by said Circuit court, if 
 said court shall hold that such suit was wrongfully or improp- 
 erly removed thereto." But if the Circuit court should hold 
 that the suit was removable, it would not, probably, dismiss 
 or remand it, because the bond did not contain this condition 
 as to costs, or was otherwise informal.^*^^ This section has 
 
 returned to the State court, and under the authority given by section 5, 
 at the cost of tlie party transferring it. If I am wrong in my construc- 
 tion of the act and the recent decisions of the Supreme court, the 
 statute, section 5, happilj'^ affords a speedy remedy by writ of en-or, 
 upon which tliis decision and the order remanding the case may be re- 
 viewed AAitliout waiting for a trial, and the question may as well be set 
 at rest in this case as in any other. It is of the utmost importance that 
 a final decision of the question be had as soon as possible. If counsel 
 so desire, I will order the clerk to delay returning the case till they have 
 an opportunity to sue out and perfect a writ of error." 
 
 it>3 Section 5 of the act of March 3. 1875. The defendants, under the 
 act of 1789, must give several, or joint and several bonds, and not joint 
 bonds, — so held by Potter. J., in Hazard v. Durant, 9 K. I. 602; but 
 quaere ? 
 
 A case was remanded by Gresham. J., because the bond did not com- 
 ply with the act of 1867. the penal sum being left blank, and because it 
 did not contain the conditions required by the act of 1875. Burdeck v. 
 Hale, 8 Ch. L. N., 192 (1876). 
 
 Where the party seeking a removal presents a bond apparently ample, 
 the State court (assuming that that court may insist upon •• a good and 
 sufficient bond) cannot arbitrarily refuse to receive the bond, and refuse 
 to remove the case without giving the party an opportunity to correct 
 the bond or make it ample. In an action where the claim was less than 
 ^600, and where a bond for $2000, in due form, with two sureties who 
 justified in the sum of $4000 each, was presented, which the court re- 
 fused to accept, without stating any reasons, the appellate court re- 
 versed the judgment, and held that it could not assume, under the cir- 
 5
 
 66 REMOVAL OF CAUSES. 
 
 been construed by the learned Circuit Judge of the 7th Cir- 
 cuit, who holds that " it did not intend that the suit should 
 be dismissed or remanded on account of irregularities, pro- 
 vided it satisfactorily appears that the Circuit court has 
 jurisdiction of the case."^**^ But if the removal was not 
 applied for in time, this is not treated as an unimportant 
 irregularity, and the uniform practice is to remand the case. 
 This objection must, however, be made seasonably, or it will 
 be deemed waived. ^^'^ 
 
 SECTION XV. 
 
 EFFECT OF PETITION AND BOND FOR REMOVAL ON THE JURIS- 
 DICTION OF THE STATE COURT. 
 
 The removal acts provide that, upon the filing of the 
 proper petition and the ofier of good and sufficient surety or 
 bond, " it shall be the duty of the State court to accept 
 the surety," [under act of March 3, 1875, "to accept 
 said petition and bond " ] " and to proceed no further in 
 the suit," [under the act of 1866 " no farther in the cause"] 
 " against the petitioner for removal. "^""^ If the case be within 
 the act of Congress, and the petition is in due form, accom- 
 panied with the offer of the required surety or bond, the 
 statute is that the State court must accept the surety or the 
 
 cumstances, that the lower court refused the bond, because not satisfied 
 with the sureties. Taylor v. Shaw, 54 N. Y. (Ct. of Appeals), 75 (1873.) 
 
 104 Osgood V. Chicago, etc., E. K. Co., 7 Ch. Legal News, 241; s. c. 2 
 Cent. L. J. 275, and, on re-argunient, 2 Cent. L. J. 283. See, also, Par- 
 ker V. Overman, 18 How. 137, 141 ; Infra, sec. 15. 
 
 105 French v. Hay, 22 Wall. 244; Supra, sec. 13. 
 
 106 Rev. Stats., sec. 639. It is doubtful whether parties can remove a 
 cause by a stipulation of the jurisdictional facts. At all events the prac- 
 tice should not be encouraged ; and where a minor was a party, it was 
 held he was incapable of consenting to the removal, and the cause was 
 remanded. Kingsbuiy v. Kingsbury, 3 Bissell, 00 (1871), Da\is, Druni- 
 mond and Blodgett, JJ., concurring.
 
 REMOVAL OF CAUSES. 67 
 
 petition and bond, and proceed no further in the case. 
 Under such circumstances the State court has no power to 
 refuse the removal, and can do nothing to afiect the right, 
 and its rightful jurisdiction ceases eo instanti; no order for 
 the removal is necessary, and every subsequent exercise of 
 jurisdiction by the State court, including its judgment, if 
 one is rendered, is erroneous. ^"^^ And if the right of removal 
 
 io7Fisk V. Union Pacific Kaib-oad Co., 6 BlatcM. 362; s. c, ib. 243, 
 299; Hatcliv. Chicago, Eock Island & Pacific Kaili'oad Co., 6 i&. 105; 
 Mattliews v. Lyall, 6 McLean, 13. Tlie petition or application "for re- 
 moval is ex parte, and depends upon the papers on which it is founded,, 
 and if they are regular and conform to the requirements of the statute,, 
 the [State] court has no discretion "—and the adverse party is not enti- 
 tled to notice of the time and place of presenting the petition. Fisk v.. 
 Union Pacific Railroad Co. (Nelson, J.), 8 Blatchf. 243, 247 (1871). 
 
 " In cases where the proceedings are in conformity mth the act, the 
 removal is imperative, both upon the State and Circuit court; and if the 
 facts [upon which the removal is based] are seriously contested, it must 
 he done in a formal manner, by pleadings and proofs, in the latter court. 
 The question of jurisdiction [in such a case] belongs to the Federal court, 
 and must be heard and determined there."' Nelson, J., in Dennistoun 
 V. Draper, 5 Blatchf. 336, 338 (1866). 
 
 No order of removal necessary. Hatch v. C, R. I. & P. K. R. Co., 6 
 Blatchf. 105 (1868) . 
 
 Petition for removal was founded on the act of 1867. It did not show 
 a right under this act, but did state a case mthin the act of 1866, and it 
 was held sufficient to require a removal so far as authorized by the last- 
 named act. Dart v. Walker, 4 Daly (N. Y.), 188 (1871). 
 
 " Where a suit is legally removed," says Gray, C. J., " into the Circuit 
 court of the United States, the jurisdiction of the State com-ts over it 
 ceases, and the suit is thenceforth to proceed to trial, judgment and exe- 
 cution in the Federal courts, and can not be remanded to the State courts 
 for any purpose. Kanouse v. Martin, 15 How. 198; Ins. Co. v. Dunn, 19 
 Wall. 214; Mahone v. Manchester etc. R. R. Co., Ill Mass. 72. Such re- 
 moval of a case from the State to the Federal courts for trial does not 
 change the nature of the issue to be tried or the judgment to be rendered. 
 West V. Aurora, 6 Wall. 139; Partridge v. Ins. Co., 15 Wall. 573." Du 
 Vivier v. Hopkins, 116 Mass. 125, 128. 
 
 In the text we use the phrase " the rightful jm-isdiction ceases eo in- 
 stanti,'''' and a subsequent judgment of the State com-t "is en-oneous,"— 
 we do not say null and void. Such a judgment is perhaps valid, unless 
 reversed or set aside ; but in many of the cases every subsequent exercise 
 of jurisdiction is said to be null and void, and eveiy step coram nonjudice. 
 How far the subsequent proceedings in the State com-t have any validity, 
 if a proper application for removal be refused, see Herryford v. ^i:tna
 
 68 REMOVAL OF CAUSES. 
 
 has once become perfect, it can not be taken away by su]> 
 sequent amendment in the State court or Federal court, or 
 by a release of part of the debt or damages claimed, or 
 otherwise.^''® 
 
 Ins. Co., 42 Mo. 151, 153, where it is said " they are coram non judice ;''"' 
 S. P. Akerly v. Vilas, 1 Abb. U. S. 284; s. C, 2 isissell, 110; Fiskv. Union 
 Pacific K. R. Co., 6 Blatchf. 362; s. c, 8 ih. 243, 299; Stevens v. Phoenix 
 Ins. Co., 41 N. Y. 149; and compare with Kanonse v. Martin, 15 How. 
 198; Gordon v. Longest, 16 Pet. 97; Ins. Co. v. Dunn, 19 Wall. 214; 
 French v. Hay, 22 Wall. 250; Amory v. Amory, 36 N. Y. Superior Ct. R. 
 520; Bell v. Dix, 49 N. Y. 232; Stanley v. Ch.. R. I. & P. R. R. Co. (Sup. 
 Ct. of Mo.), 3 Cent. L. J. 430 (1876) ; Hadley v. Duulap, 10 Ohio St. 1, 8, 
 where the matter is discussed by Scott, J. ; DuVivier v. Hopkins, 116 
 Mass. 125, 126. 
 
 The doctrine of the text to the effect that, if the petition for the re- 
 moval presents a case within the removal acts, and is made in due time 
 and accompanied with the proper surety, no order for the removal is 
 necessary, is very strongly combated by Chancellor Cooper in the 
 Southern Law Review for April, 1877. This learned writer contends 
 that under such circumstances the jurisdiction of the State court contin- 
 ues, " until it has finally parted with it by the necessary order." and i)er 
 consequence, that the Circuit court can in no case acquire jurisdiction, 
 unless the State court has ordered the removal. No authoritj- is cited 
 for this position, except the case of the Railway Co. v. Ramsey, 22 Wall. 
 328, which it is a mistake to suppose decided any such proposition ; and 
 the Chief Justice, in the language referred to, probably had no such 
 thought in his mind. The doctrine that an order of removal in such a 
 case is not necessary to the jurisdiction of the Circuit court is imiversally 
 accepted in those courts, and is constantly acted on. The acts of Con- 
 gress speak of no order of removal being necessarj^; some of the acts 
 distinctly provide for the cases proceeding in the Federal court, notwith- 
 standing the State court or clerk maj^ refuse to send or furnish copies of 
 the record ; and the act of 1875 (sec. 7) provides for a writ of certiorari 
 to enforce not only the removal of a cause which the State court has or- 
 dered to be removed, but of any cause " removable under the act," where 
 the parties entitled to a removal "have complied with the provisions of 
 this act for the removal of the same." It would contravene the plain 
 pm-pose of this provision to hold that a certiorari could rightfully issue 
 only in cases where the State court had ordered the removal, or that it 
 would be an answer to the writ for the State court to return that it had 
 refused to order the removal. 
 
 losKanouse v. Martin (amendment), 15 How. 198; s. C. 1 Blatchf. 149; 
 Ladd V. Tudor. 3 Woodb. & Minot, 325; Muns v. Dupont, 2 Wash. C. C. 
 463: Akerly v. Vilas, 1 Abb. U. S. 284; S. C, 2 Bissell, 110; Hatch v. 
 Rock Island etc. R. R. Co., 6 Blatchf. 105; Fisk v. Union Pacific R. R. 
 Co., G ib. 362; s. c. S ib. 243: Roberts v. Nelson (amount), 8 ib. 74;
 
 REMOVAL OF CAUSES. 6J> 
 
 If the petition in connection with the pleadings does not 
 show that the case is removable, the jnrisdiction of the State 
 court is not ousted, and its sul^sequent proceedings, if it 
 refused to order the removal, would not, it is supposed, be 
 void or erroneous.^*' 
 
 And the same principle would apply, probably, if no secu- 
 rity or bond whatever was offered and no removal ordered, 
 since in that event the prescribed conditions for the removal 
 have not been complied with ; but it is doubtful, especially 
 under the act of 1875, whether it belongs to the State court 
 to judge of the sufficiency of the surety offered, and to refuse 
 a removal because the surety or bond is not sufficient, and 
 exercise jurisdiction subsequently on that ground alone. ^^° 
 
 In the case of Osgood v. Chicago etc. R. R. Co.,"^ the 
 petition and bond for the removal of the cause were filed in 
 the vacation of the State court with the clerk, and it was 
 
 Gordon V. Longest, 16 Pet. 07; Matthews v. Lyall (as to right to dis- 
 miss), G McLean, 13; Wright v. Wells. Pet. C. C. 220; Stanley v. C. R. 
 L & P. R. R. Co., 3 Cent. L. J. 430. 
 
 109 Gordon v. Longest, 16 Pet. 97; Ins. Co. v. Dmm, 19 Wall. 214; 
 Kanouse v. Martin, 14 How. 23; s. C, 15 How. 198; Stevens v. Phoenix 
 Lis. Co., 41 N. Y. 149; Holden v. Putnam Fire Lis. Co., 46 N. Y. 1 ; Sav- 
 ings Bank v. Benton, 2 Mete. (Ky.) 240. 
 
 uoSee nisi prius opinion of Morton, J., in Bank v. King Wrougiit Iron 
 Bridge Co., 2 Cent. L. J. 505, denying Osgood v. Chicago etc. R. R. Co., 
 infra ; s. c. in Circuit court U. S., 2 Cent. L. J. 616. See Ih.. 679. 730. The 
 ruling of Drummond, J., in Osgood's case, approved .Jones v. Amazon 
 Ins. Co., 9 Ch. Legal Xews, 68, dissented from in Mayo v. Taylor, 8 Ch. 
 Legal News, 11. See also dictum of the Chief .Justice in Railway Co. v. 
 Ramsey, 22 Wall.32S, that ' ^ if upon the hearing of the petition it is sustained 
 by proof, the State court can proceed no further "^but qucere, whether 
 the State court can hear and determine whether the proofs sustain the 
 petition. 
 
 Mr. Chancellor Cooper, in the Southern Law Review for April 
 1877, combats the doctrine of .Judge Drummond in the Osgood Case and 
 the other cases that follow it, namely, that the State court has no right 
 to pass upon the sufficiency of the bond. The point is by no means 
 clear, and there is reason (looking at the object of the bond and the 
 language of the act of Congress) for the opinion, that it was contem- 
 plated that the State court might reject a bond distinctly on the ground 
 that it was not sufficient; but its action in this regard can not be ad- 
 mitted to be conclusive, in all cases, on the Federal courts. 
 
 1112 Cent. L. J. 275; s. c, 7 Ch. Legal News, 241.
 
 70 REMOVAL, OF CAUSES. 
 
 held that this, without any action of the eourt as to the suffi- 
 ciency of the petition or bond, ipso facto, deprived the State 
 court of jurisdiction — the sufficiency of these (under the act 
 of 1875 ) being for the Circuit court. Judge Drummond says : 
 " It is true that under the statute the bond must be good and 
 sufficient security ; but it does not declare that it shall be 
 approved by the judge. It requires the State court to ac- 
 cept the jDetition and bond, and proceed no further in the 
 case.^^ The fifth section of the act of March 3, 1875, tends 
 to confirm the ^dew that the State court is not authorized 
 to make a judicial inquiry into and decision on the sufficiency 
 of the bond. Its determination, however, that a sufficient 
 petition is not sufficient, can not deprive the Federal court 
 of jurisdiction. So its determination that an insufficient 
 petition is sufficient, while it is not immaterial, especially if 
 accomjDanied with an order for removal, will not conclude 
 that question, and it will be the duty of the Federal court, 
 on motion, to remand the cause. ^^'^ 
 
 SECTION XVI. 
 
 EFFECT ON THE JURISDICTION OF THE FEDERAL COURT. 
 
 " Upon the copy of the record of the suit being entei'ed 
 as aforesaid in the Circuit court of the United States," the 
 provision is, " that the cause shall then proceed in the same 
 manner as if it had been originally commenced in the said 
 Circuit court." "And the copies of the pleadings shall 
 have the same force and efiect, in every respect and for every 
 purpose, as the original pleadings would have had by the 
 laws and practice of the courts of the State, if the cause had 
 remained in the State court. "^* 
 
 112 See 2 Cent. .L. J. 616. 
 
 113 Uitetiqui v. D'Arcj% 9 Pet. 692. 
 
 ii^Kev. Stats., sec. 639. And see act March 3. 1875, sees. 3, 6.
 
 REMOVAL OF CAUSES. 71 
 
 No new 2jleadings are in general necessary in the cause 
 after its removal to the Federal court, "'^ though it may often 
 be advisable, especially in equity cases, to file new plead- 
 ings. We have before referred to this subject."'^ The 
 practice after removal is to be the same, as if the cause had 
 been originally brought in the Federal court, including the 
 power to allow amendments. ^^' Amendinents in respect to 
 jurisdictional facts have sometimes been allowed. ^^^ 
 
 The jurisdiction of the Circuit court does not, probably, 
 attach until the record of the State court is entered therein. 
 If it be entered before the time, it has been made a question 
 whether it will then attach. For some purposes it would 
 seem that it might ; as, for example, if it became necessary 
 meanwhile to issue an injunction or appoint a receiver 
 (which should be done, however, only upon notice), in or- 
 der to protect the rights of the parties or to preserve the 
 property in litigation. 
 
 By express provision of existing statutes, attachments of 
 property hold, bonds of indemnity remain valid, and writs 
 of injunction continue in force notwithstanding the re- 
 us Dart v. McKinney (act of 1866), 9 Blatchf. 359 (1872), Blatchford, 
 J. Supra, sec. 9 and cases cited. In removals under the Judiciary Act, 
 the defendant is not in default for not pleading in the State court, and 
 he may plead in the Circuit court, Webster v. Crothers, 1 Dillon C. C. 
 301 (1870). 
 
 U6 Swpra, see. 9 and cases there cited. 
 
 117 Suydam v. Ewing, 2 Blatchf. 359 (1852), Betts, J.; Akerly v. Vilas, 
 5 Ch. Legal News, 73; supra, sec. 9 and cases cited. 
 
 lis In the original petition the plaintiff, by mistake of his attorney, 
 described himself as a citizen of the state where the suit Avas brought ; he 
 obtained a removal of the case on the ground that he was a citizen of 
 another state, and in the Federal court he was permitted by Mr. -Justice 
 Bradley to amend his petition and state his true citizenship, both then, 
 and when the suit was commenced, and to make new parties defendant 
 with respect to matters properly pertaining to the original cause of ac- 
 tion. Barclay v. Levee Commissioners, 1 Woods C. C. 254. In Hodgson 
 V. Bowerbank,5 Cranch, 303, the court having decided that the objection 
 to the jurisdiction (the defendant being described in the record as "late 
 of the District of Maryland." instead of a citizen of Maryland) was 
 fatal, the ''record was afterwards amended by consent." Parker v. 
 Overman, 18 How. 137, cited infra, sec. 17, note.
 
 72 REMOVAL OF CAUSES. 
 
 moval, until dissolved or modified by the Circuit court. ^^* 
 This provision was, doubtless, enacted to obviate a dif- 
 ferent judicial construction which has been placed upon 
 previous removal acts.^-*^ 
 
 SECTION XVII. 
 
 EEMANDING OF CAUSE TO THE STATE COURT. 
 
 If the petition for the removal and the copy of the 
 pleadings or record in the State court, taken together, do not 
 show that the case was removable under the legislation of 
 Congress ; or if they show that the removal was not applied 
 for in time ; or that any other substantial condition of the 
 right of removal, such as value, has not been met or com- 
 plied with, but the removal has, nevertheless, been ordered, 
 the other party may move to remand the cause to the State 
 court, and it ought to be remanded accordingly. This was 
 
 119 Rev. Stats., sec. 646; Act March 3, 1875, sec. 4. 
 
 i2f'See Xew England Screw Co. v. Bliven, 3 Blatchf. 240, but qiKxre? 
 Barney v. Globe Bank {attachment holds the property after removal under 
 the .Judiciaiy Act. sec. 12), 5 Blatchf. 107 (1862). 
 
 Attachment — Motion to Dissolve. — A motion to dissolve an attachment 
 when authorized by the local laws, maybe made in the Circuit comt after 
 the removal ; and in the discretion of the court it may be renewed, al- 
 though it was once argued and denied in the State court. Garden City 
 Mauuf. Co. V. Smith, 1 Dillon C. C. 305 (1870). As to custody and dis- 
 position of propeity attached. Dennistoun v. Draper, 5 Blatchf. 336. 
 
 Injunction — Motion to Dissolve. — Under the act of July 13, 1866 (14 
 Stats, at Large, 171, sec. 67), Drummond, Circuit Judge, following the 
 decision of McLean, J., in McLeod v. Duncan, 5 McLean, 342, held that 
 an injunction issued by the State court was ipso facto dissolved by the re- 
 moval of the cause into the Federal court — that act making pro^^sion that 
 " all attachments made, and all bail and security given upon such suit or 
 prosecution, shall continue in force." and sajing notliing as to injunc- 
 tions. See Hatch v. Chicago, R. I. & P. R. R. Co., 6 Blatchf, 105. hold- 
 ing same doctrine as to cases removed under sec. 12 of the Judiciary 
 Act. But these decisions are no longer applicable, where there is an ex- 
 press statute provision, that injunctions gi-anted by the State court con- 
 tinue in force after the removal of the cause, until dissolved or modified
 
 REMOVAL OF CAUSES. 73 
 
 the uniform practice before the act of 1875 ; but under the 
 5th section of that act, while it is clear that a cause ought 
 to be remanded which is not removable, or in which the right 
 to a removal has been waived because not applied for in 
 time, and the like, it is doubtful whether, if the record wa& 
 in fact filed in the Federal court in time, defects connected 
 with the giving of the surety or bond, or other irregulari- 
 ties which have not worked any prejudice, will be ground 
 for dismissing or remanding the case.^'-^ 
 
 The section last referred to makes it the duty of the Cir- 
 cuit court to dismiss or remand the case whenever it appears, 
 to its satisfiiction, that the " suit does not really and substan- 
 tially involve a dispute or controversy properly within the 
 jurisdictiou of the Circuit court." In our judgment this 
 is the test of Federal jurisdiction, and the one which 
 ought to be applied to the complex and diversified cases 
 which will arise under the act of 1875, namely, if the real 
 and substantial controversy is one between citizens of dif- 
 ferent states, although incidentally and collaterally there 
 may be a controversy between some parties who may be 
 citizens of the same state ; or if the case is one which arises 
 under the Constitution or Laws of the United States, al- 
 though not wholly depending thereon as before explained , 
 the case is one of Federal cognizance and should be re- 
 tained ; otherwise, dismissed or remanded. 
 
 A party entitled to a removal may estop himself to apply 
 
 by the Federal coiu-t. "Wlierean injunction has been allowed by the State 
 court upon a full hearing, and the cause is afterwards removed,— while the 
 Federal court may, under the act of 1866, dissolve the injunction, yet, 
 where the motion to dissolve is upon the same papers on which the writ was 
 granted (this being- in effect an application for re-argument of the 
 motion made in the State court) , leave to make such motion should fii'st 
 be applied for and obtained, before it can be made. Carrington v. Flor- 
 ida K. K. Co., 9 Blatch. 468 (1872), Benedict, J. 
 
 121 See siipra, sec. 9, as to time of applying for removal. When the 
 case is one of Federal cognizance, the right to have the cause remanded, 
 because of defects in mode of removal, etc.. may be waived. But there 
 is no waiver of the right, where the case is not really and substantially 
 one of Federal jurisdiction. Price v. Sommers, 8 Ch. Legal News, 290.
 
 74 EEMOVAL OF CAUSES. 
 
 for it,^" or, having applied, may waive the right to a removal 
 by his subsequent conduct in the State court ;^^ but contest- 
 ing the case in the State court, after it has erroneously 
 refused to grant the application for a removal, is no waiver 
 of the party's right. ^-^ 
 
 Under sec. 639 of the Revised Statutes, and under the 
 act of 1875, the defendant must give surety for his entering 
 copies of the record on ' ' the first day of the next session ' ' 
 of the Federal court — the latter act providing further (sec. 
 7), that if the next term shall commence within twenty 
 days after the application for removal, the party shall have 
 twenty days, from the time of the application, to file in the 
 Federal court the copy of the record and enter his appear- 
 ance therein. If this condition of the undertaking and 
 bond is not complied with, the obligors would doubtless 
 be liable on the bond ; and there may be such unexcused 
 laches in the filing of the copy of the record of the State 
 court, as where Avithout necessity or good reason a term 
 lapses, or the other party is prejudiced by the dela}", that 
 the Federal court will for this reason remand the case, even 
 though it be one of Federal cognizance. Such is the 
 practice of the Federal courts, so far as we are acquainted 
 » with it.i-'^ 
 
 122 Executing bond to procui-e discharge from a -oTit of ne exeat, held to 
 estop, hy its condition " to abide the decree of the State court" — the de- 
 fendant -who executed it, to remove the cause to the Federal com-t. Haz- 
 ard V. Durant et al. (Potter, J.), 9 Khode Island, 602. 606 (1868). 
 
 1"^ A petition and bond for removal were filed in the State court: — no 
 motion was made or entered, nor the attention of the court called to the 
 fact, and the parties nearly a j'ear afterwards went to trial on the merits. 
 On appeal the court held, that the right to a removal could he vmived, and 
 under the circumstances must be considered waived ; though it was ad- 
 mitted that it would have been other\A-ise, if the coiu-t had been cogni- 
 zant of the petition, and that the party insisted on it, and had nevertheless 
 ordered the trial to proceed. Home Ins. Co. v. Cui-tis (Sup. Ct. Mich.), 
 3 Cent. L. J. 27 (1875) . 
 
 124 Insurance Co. v. Dunn, 19 Wall. 214: Gordon v. Longest, 16 Pet. 
 98; Kanouse v. Martin, 15 How. 198: Stevens v. Phcenix Ins. Co., 41 
 N. Y. 149; Hadley v. Dimlap. 10 Ohio St. 1. 
 
 125 Supra, sec. 14. Time of filing copies of papers, "^liere the petition for
 
 REMOVAL OF CAUSES. 75 
 
 The motion to reinand must be based upon the petition for 
 removal and the record as it is sent up from the State court. 
 If the petition, in connection with the record, is sufficient 
 on its face, but states as ground of removal facts which 
 are not true, as for example, in regard to citizenship, or 
 value, where the value does not appear in the pleadings, 
 issue may be taken thereon in the Circuit court by a plea in 
 the nature of. a plea in abatement -^'-^ but such an inquiry 
 can not be gone into in the State court. ^'-^ 
 
 Where the State court has ordered the removal improp- 
 
 removal was filed in February, 1874, and the next term of the Federal 
 court was in April, 1874, and copies of the proper papers were not filed 
 until August, 1875, the delay was such that the Federal court remanded 
 the case, and held that the delay was not excused by the action of the State 
 court in denying the petition, and the petitioner's action in the mean- 
 time in securing, by appeal to the state appellate tribunal, a reversal of the 
 order denying the removal. Clippiuger v. Mo. Valley Life Ins. Co. 
 (North. Dist. Ohio), 8 Chicago Legal Xews, 11.5 (1875); but qucere, 
 whether under the circumstances the delay was not sufficiently excused. 
 
 126 Coal Co. V. Blatchford, 11 Wall. 172; Heath v. Austin. 12 ib. 320, 
 *' The motion to remand admits the facts set out in the petition for re- 
 moval, and proceeds upon the ground that under the state of facts [pre- 
 sented in the record] the case was improperly removed, and this court 
 is without jurisdiction over it." Buttner v. Miller, 1 Woods C. C. 620 
 (1871). When motion to remand is proper, and when not. Heath v. 
 Austin, 12 Blatchf. 320; Dennistoun v. Draper, 5 ib. 336; GaMn v. 
 Boutwell, 9 ib. 470. 
 
 If the case is not one of Federal cognizance, it must be dismissed or re- 
 manded at any stage when the fact appears or is duly established. 
 Dennistoun v. Draper, 5 Blatchf. 336 (1856), Xelson, .J.; Pollard v. 
 Dwight, 4 Crauch, 421 ; Wood v. Matthews, 2 Blatchf. 370. 
 
 The act of March 3, 1875, section 5. provides that, if " at any time " 
 after the removal the non-federal character of the ease shall appear, 
 " the Circuit coiu-t shall proceed no further therein, but shall dismiss the 
 suit or remand it to the court from which it was removed, as justice 
 may require." 
 
 i27Fisk v. Union Pacific R. R., 8 Blatchf. 243 (1871), Nelson, .J. ; Stew- 
 art V. Mordecai, 40 Ga. 1. It is settled law that the facts stated as the 
 ground of the removal can not be contested or inquired into in the State 
 court. That inquiry belongs exclusively to the Federal court. 
 
 In Knickerbocker Life Ins. Co. v. Gorbach,, 70 Pa. St. 150 (1871), both 
 parties seemed to concede the right of the State court to determine 
 whether the facts stated in the petition for removal were true, and that 
 question was tried and decided against the party applying for the re-
 
 76 REMOVAL OF CAUSES. 
 
 erly, the Circuit court should remand the siiit.^-^ If the 
 State court has remitted the case, though erroneously, its 
 jurisdiction is at an end until it is restored by the action of 
 the Federal courts.^'" If the Circuit court erroneously re- 
 fuses to remand such a case, the proper remedy of the party 
 is not by proceeding in the State court at the same time the 
 cause is in the Circuit court, but is alone in the Federal 
 court ; the action of the Circuit court in remanding, or re- 
 fusing to remand, a cause being reviewable on error or appeal 
 by the Supreme Court. ^^^' 
 
 moval, and the decision reversed hy the Supreme Court of tlie State; 
 but this practice is in direct conflict with the acts of Congress in this 
 behalf. 
 
 Burden of proof KS, to jurisdictional facts, where contest is made in the 
 Federal court after the removal. Heath v. Austin, 12 Blatchf. 320. 
 
 128 Act March 3, 1875, sec. 5, referred to supra. Although the State 
 court has ordered the removal, yet if such order was improperly made, 
 the Circuit court should remand the cause, as it must determine for itself 
 the question of jurisdiction. Field v. Lownsdale', 1 Deady, 288, Deady, 
 J. Where the Federal court orders a cause remanded to the State court, 
 the Supreme Court of the State will not issue a writ of mandamus or 
 other process to restrain the State court from proceeding with the cause, 
 until the party who attempted to transfer the cause to the Federal court 
 can invoke the revisory power of the Supreme Court of the United States- 
 to compel such transfer. E:c parte State Ins. Co. of Ala., 50 Ala. 464 (1874) . 
 
 129 On the order of the Circuit court remanding a cause which the State 
 court had previously ordered to be transferred, the jurisdiction of the 
 latter court re-attaches, and it may proceed therewith. Thacher v. 
 McWilliams, 47 Ga. 306 (1872). But under the act of March 3, 1875 
 (sec. 5). such an order of the Circuit court is reviewable by the Supreme 
 Court of the United States on appeal or ^\Tit of error ; and if the order 
 be superseded, a question may arise as to the power of the State court 
 pending the appeal or writ of ei-ror. to proceed ^\ith the cause under or 
 in consequence of the order remanding it. 
 
 1301ns. Co. V. Dunn, 19 Wall. 214, 223; Gordon v. Longest, 16 Pet. 97; 
 Act March 3, 1875, sec. 5; Green v. Custard, 23 How. 484; Fasnacht v. 
 Frank (effect of appeal), U. S. Sup. Court, Oct. Term, 1874, 23 Wall. 416. 
 See 2 Cent. L. J. 290. 
 
 Where in a suit removed into the Circuit court the papers wei-e after- 
 wards destroyed by fire, and the parties stipulated in writing that the cause 
 was transfeiTed in arxordance v-ith the statute in such case provided, the 
 Supreme Court \\ill presume, in the absence of proof to the contrary, that 
 the citizenship requisite to give jurisdiction was shown in some proper 
 manner, though it did not appear on the face of the pleadings. R. R.
 
 REMOVAL OF CAUSES. 77 
 
 Where the State court asserts jurisdiction after a proper 
 application for removal, the question of jurisdiction is not 
 waived by the party entitled to the removal, by reason of his 
 appearing and contesting in the State court the claim or 
 matter in dispute. ^'^^ If in such case the judgment of the 
 State court be against him on the trial or hearing, he may 
 appeal to the highest court of the state ; and if the decision 
 below is there affirmed, he may sue out a writ of error from 
 the Supreme Court of the United States ; and if the record 
 shows that the removal of the suit was improperly denied, 
 that court will not examine into the merits of the case or 
 generally into the record, but will reverse the judgment of 
 the highest court of the state, with directions to reverse the 
 judgment of the lower State court and to order a transfer of 
 the cause from that court to the Circuit court of the United 
 States, pursuant to the petition for the removal originally 
 filed in such State court. ^•^- The Circuit court has the power 
 
 Co. V. Kamsey, 22 Wall. 322. In a petition for removal it was stated that 
 the parties '' resided" in such and such states. The Supreme Court 
 said : '' ' Citizenship ' and ' residence ' are not synonymous terms; but as 
 the record [in the Circuit court] was afterwards so amended as to show 
 conclusively the citizenship of the parties, the court below had, and this 
 court have, undoubted jurisdiction of the case." Parker v. Overman, 18 
 How. 137, 141. Amendments, see stipra, sec. 16 and cases cited. 
 
 An averment, that the party defendant is a citizen of the Southern 
 Distriet of Alabama, is a sufficient aA'ennent that he is a citizen of Ala- 
 bama. Berlin v. Jones. I Woods C. C. 638. 
 
 1-31 Ins. Co. V. Dunn, 19 Wall. 214; Gordon v. Longest, 16 Pet. 98; 
 Kanouse v. Martin, 15 How. 198; Stevens v. Pha?nix Ins. Co.. 41 N. Y. 
 149; Hadley v. Dunlap, 10 Ohio St. 1; Stanley v. C, K. I. & P. K. R. 
 Co., 3 Cent. L. J. 430. 
 
 132 Gaines v. Fuentes, Sup. Court U. S. Oct. Term, 1875, 2 Otto, 10; s. 
 €., 3 Cent. L. J. 371, and see cases last cited. In the Atlas Ins. Co. v. 
 Byrus, 45 Ind. 133 (1873), the State court of original jurisdiction improp- 
 erly refused to transfer the cause to the Federal court, and rendered 
 judgment against the party entitled to the removal;— on appeal, the Su- 
 preme Court of the State reversed the judgment and remanded the cause 
 to the court below, with directions to sustain the application to remove 
 the cause to the Circuit court of the United States. 
 
 The State courts have generally held, that an appeal lies to the appellate 
 court of the state from an order for the removal of a cause to a Fed- 
 eral court, or from an order referring such removal. State v. The
 
 78 REMOVAL or CAUSES. 
 
 to protect its suitors by injunction against a judgment in the 
 
 Judge, 23 La. An. 29 (1871); Bryant v. Rich, 106 Mass. 180; Crane v. 
 Reeder, 28 Mich. 527 (1874) ; Whiton v. Chicago & N. W. R. R. Co., 25 
 Wis. 424; s. C, 13 Wall. 270; Darst v. Bates, 51 El. 439. See opinion of 
 Gray, C. J., inMahone v.Mancliester etc. R. R. Co., Ill Mass. 74; Hough v. 
 West. Transp. Co.,1 Bissell,425. But the courts In XewYorlc have decided 
 othei-\\ise. Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Bell v. Dix, 49 
 N. Y. 232. See on this subject Ellerman v. New Orleans etc. R. R. Co., 
 2 Woods C. C. 120 (1875) (Woods, Circuit Judge) ; Ins. Co. v. Dunn, 19 
 Wall 214; Ins. Co. v. Morse, 20 Wall. 445, and cases cited infra. 
 
 But whatever may be the true view on this point, it is plain that, if the 
 case is removable, and the application is in due form and in time, the act 
 of Congress gives " an unqualified and unrestrained right to a removal," 
 and declares that the State court shall " proceed no further in the suit;" 
 and in such a case the State court, it seems plain, can not, after such 
 application, allow an appeal to the appellate court of the state, and ac- 
 cept a supersedeas bond, which shall have the effect to prevent a removal 
 to the Federal court pending such appeal. See Akerly v. Vilas, 1 
 Abb. U. S. Rep. 284. This is undoubtedly the law under the act of 1875, 
 which authorizes the Federal court to issue a certiorari to the State 
 court, to which it would not be sufficient for the State court to return 
 that an appeal had been taken to the appellate court of the state. El- 
 lerman V. New Orleans R. R. Co., (Woods, Circuit Judge), 2 Woods 
 C. C. 120 (1875) ; Insurance Co. v. Morse, 20 Wall. 445. 
 
 If a removal has been applied for and denied, and the party persists in 
 proceeding in the State court, Allen. J., in Bell v. Dix, 49 N. Y. 232 
 (1872), conceding that the question of jurisdiction must be decided 
 by the Federal Circuit Court, said, aryiiendo, that the remedy of the 
 party, who sought the removal which the State court denied, was to ap- 
 ply to the Circuit court of the United States for the proper mandate 
 staying proceedings in the State court, and to compel a transcript of the 
 record to be certified to the Federal court. If the other party claims 
 that the cause has not, for any reason, been effectually removed, he 
 should apply to the Federal court to remand the cause; but the majority 
 of the court concun-ed in affirming the order of the special term denjdng 
 the motion of the party who sought the removal, to stay in the State 
 court further proceedings in the action. In Fisk v. Union Pacific R. R. 
 Co., 6 Blatchf. 362. it was held that the Federal court would not, after 
 the removal of the cause into it, stay proceedings in the State courts 
 these being null and void. The gi-ound of these determinations evi- 
 dently is, that if the removal was properly applied for, it was useless to 
 stay the proceedings in the State court, as it was deprived of jurisdic- 
 tion—that is. of rightful jurisdiction; on the other hand, if the removal 
 was not authorized, it would be improper to interfere with the juris- 
 diction of the State court. This conclusion largely rests upon the deli- 
 cacy with which one court interferes with the proceedings of another, 
 and leads to no little confusion, expense and embarrassment in its
 
 REMOVAL OF CAUSES. 79 
 
 State court rendered subsequent to a proper application to 
 remove the cause. ^"'^ 
 
 If a cause be improperly removed into the Circuit court, 
 and it entertains jurisdiction in a case in which by law it can 
 have none, its judgment will be reversed by the Supreme 
 Court, with directions to the Circuit court to remand the 
 same to the State court whence it was improperly taken .^^ 
 
 practical effect. For example, recently, in a case in Iowa, a removal of 
 a cause was sought in the State court. The State court denied it. A 
 copy of the record in the cause was filed in the United States Circuit 
 court for Iowa. That court held that the removal was effectual; the 
 other party appeared, and, on the final hearing, a decree was rendered 
 against him. The State court proceeded with the cause and, on final 
 hearing, rendered a decree in favor of the other party. On appeal 
 to the Supreme Court of the state, it aflirmed the judgment be- 
 low, so that there are two opposite final decrees, one in the State court, 
 and the other in the Federal comt — the result of the one court not inter- 
 fering with the other. The case of French v. Hay, 22 Wall. 250, shows 
 that the Federal com-t may protect a party by injunction against a judg- 
 ment in the State comt rendered therein after a proper application to 
 remove the cause. 
 
 As to appeals from the decision of the Hist prms State court granting or 
 refusing the petition for removal to the appellate court of the state, and 
 the effect thereof, see, Kanouse v. Martin, 15 How. 198, s. c. 14 How. 
 23; s. c, 1 Blatchf. 149; Burson v. Park Bank, 40 Ind. 173; Western 
 Union Telegraph Co. v. Dickinson, 40 Ind. 444; Indianapolis etc. R. R. 
 Co. V. Risley, 50 Ind. 60; Wliiton v. R. R. Co., 25 Wis. 424; Raikoad 
 Co. V. Wliiton, 13 Wall. 270; Akerly v. Vilas, 24 Wis. 165; s. c, 2Bissell, 
 110; Home Ins. Co. v. Dunn, 20 Ohio St. 175; Ins. Co. v. Dunn, 19 Wall. 
 214; Atlas Ins. Co. v. Byrus, 45 Ind. 133; Gordon v. Longest, 16 Pet. 
 97; Hadley v. Dunlap, 10 Ohio St. 1; Stevens v. Phoenix Ins. Co., 
 41 N. Y. 149; Holden v. Putnam Ins. Co., 46 X. Y. 1; People v. Sup. 
 Court, 34 m. 356; Savings Bank v. Benton. 2 Mete. (Ky.) 240; Taylor v. 
 Shaw. 54 N. Y. 75 (1873); Bell v. Dix (interesting case), 49 X. Y. 232 
 (1872). In case of removal from State to United States court, when the 
 proceedings for removal are regular, the jurisdiction of the State court is 
 ipso facto ousted by virtue of such proceedings. The allegation as to 
 jurisdiction can be proven on the trial, and the proper judgment asked 
 for. Shaft v. Phoenix Mut. Life Ins. Co., N. Y. Ct. of Appeals, not yet 
 reported. 
 
 133 French v. Hay, 22 Wall. 250. 
 
 i34Knapp V. Railroad Co., 20 Wall. 117.
 
 APPENDIX. 
 
 Forms of PETITIONS FOR REMOVAL and BONDS 
 
 UNDER THE REVISED STATUTES, SeC. 639, AND THE ACT 
 
 OF March 3, 1875. Form of Writ of CERTIORARI 
 
 AUTHORIZED BY SeC. 7 OF THE LAST-NAMED STATUTE. 
 
 The following Forms, with slight alterations, are those in 
 common use in the Eighth Judicial Circuit. By reference to 
 the text it mil be seen that they are in some respects un- 
 necessarily full ; but they are perhaps safer than others 
 would be, which should be reduced to the exact require- 
 ments of the act in the particular case. 
 
 Form of petition /or the transfer of a cause from the State 
 to the Federal court under the act of March 2, 1867 , as 
 7'evised and embodied in the Revised Statutes of the 
 United States, sec. 639, sub-division 3. 
 
 In the Court of County, State of . 
 
 vs. I Petition lor Traiisfe]- of Suit to Federal Court. 
 To the Honorable, the Court of County, State of : 
 
 Your petitioner [here insert the plaintilf's name], respectfully shoAvs 
 that he is plaintiff in the foregoing entitled suit, and that the same was 
 
 by him commenced on or about the day of , 18 , in said 
 
 Court ; that your petitioner was at the time of bringing said suit, and 
 still is, a citizen of the State of , and a resident thereof. 
 
 Your petitioner further shows that there is, and was at the time said suit 
 was brought, a controversy therein between your petitioner and the said 
 
 defendant, , who is a citizen of the State of , and resident 
 
 6
 
 82 APPENDIX. 
 
 thereof; that .said action Avas brought by your petitioner, for the pur 
 pose of [here briefly state the nature of tlie suit and the relief asked] , 
 and that tlie matter in dispute in this suit exceeds the sum of five hun- 
 dred dollars, exclusive of costs. Your petitioner further represents, 
 that this suit has not been tried, but is now pending for trial in the Dis- 
 trict court of the State of , for said County of , and that your 
 
 petitioner desires to remove the same into the Circuit court of the 
 United States for the District of , in pursuance of the act of Con- 
 gress in that behalf provided, to wit, the Kevised Statutes of the United 
 States, section 639. sub-division 3. 
 
 Your petitioner further saj's, that he has tiled the affidaAit required 
 by the statute in such cases, and offers hercAAith his bond executed 
 
 by , of , as surety, in the penal sum of two hundred and 
 
 fifty dollars, conditioned as by said act of Congress required. 
 
 Your petitioner therefore prays, that the said bond may be accepted as 
 good and sufficient, according to the said act of Congress, and that the 
 said suit may be removed into the next Circuit court of the United 
 
 States, in and for said District of , pursuant to the aforesaid act of 
 
 Congress, in such case made and provided ; and that no fmther proceed- 
 ings may be had therein in this court. 
 
 And your petitioner will ever pray, etc., 
 
 Attornev for Plaintiff. 
 
 Form of affidavit of pre.judice or local influence to ac- 
 company the preceding petition. 
 
 Ix THE Court of County, State of . 
 
 Plaintifts, 
 
 Affidavit. 
 Defendants. 
 
 State of , County of . sa. 
 
 I. . being duly sworn, do sav that I am one of the 
 
 in the above entitled cause: that 1 have reason to believe, and do be- 
 lieve, that from jirejudice and local influence. will not be able 
 
 to obtain justice in said State Court. 
 
 Subscilbed by the said in my presence, and by him sworn 
 
 to before me at , this day of , A. D. 187 . 
 
 Xotary Public in and for County. 
 
 Who may make this affidavit. See ante, sec. 14. How 
 to be taken and certiticd. See ante, sec. 14.
 
 APPENDIX. 83 
 
 Form of BOND to accompany the Preceding Petition for 
 Removal of a Cause, iinder the Act of MarcJi 2, 1867 , 
 as Pevised and Embodied in the Revised Statutes of the 
 United States. 
 
 Know all men by these presents : 
 
 That we as principal, and of as surety, are 
 
 liereby held and tii-mly bound unto in the penal sum of 
 
 Dollars, lawful money of the United States, for the payment of 
 
 which, well and truly to be made, we bind ourselves jointly and severally 
 tirmly by these presents. 
 
 The condition of this obligation is such, that if shall enter 
 
 and file, or cause to be entered and filed, in the next Circuit of the United 
 
 States, in and for the District of , on the first day of its session, 
 
 copies of all process, pleadings, depositions, testimony and other pro- 
 ceedings in a certain suit or action now pending in the District court of 
 
 the County of and State of . in which is plaintiff, 
 
 and defendant ; and shall do such other appropriate acts as, 
 
 by the act of Congress in that behalf, are required to be done upon the 
 removal of such suit from said State court into the said United States 
 court, then this obligation to be void, otherwise of force. 
 
 Dated , A. D. 187 . 
 
 State of . 
 
 County. 
 
 I. of said County, the surety named in the foregoing bond, 
 
 l)eing duly sworn, do depose and say that I am a resident of the State of 
 
 , and a property-holder therein; that I am worth the sum of five 
 
 hundred dollars, over and above all my debts and liabilities, and exclu- 
 sive of property by law exempt from execution ; that I have property in 
 the State of , liable to execution, of the value of more than live hun- 
 dred dollars. 
 
 Subscribed in my presence by . and by him sworn to before 
 
 me this dav of . A. D. 187 . 
 
 The above form of bond is applicable, also, to removals 
 under section 633, sub-division 1, of the Revised Statutes, 
 formerly section 12 of the Judiciary Act. If the removal is 
 under sub-division 2 of said section 039, by the non-resident
 
 84 APPENDIX . 
 
 defendant, the condition- of the bond may be modified, as 
 prescribed by this section, to enter and tile in, etc., on, 
 etc., " copies of all process, pleadings, depositions, testi- 
 mony, and all other proceedings in the cause concerning or 
 affecting the petitioner for the removal in a certain suit or 
 action now pending," etc., as in the preceding form. 
 
 PETITION FOR REMOVAL by the NON-RESIDENT De- 
 fendant UNDER THE REVISED STATUTES, SeC. 639, SUB- 
 DIVISION 2, FORMERLY THE ACT OF JuLY 27, 1866. 
 
 Describe the parties, the State court in which the suit is 
 pending, as in the preceding petition, stating particularly 
 the citizenship of each of the plaintiifs and each of the de- 
 fendants — the amount or value in dispute, as in the preced- 
 ing form. Then insert in the petition for removal a state- 
 ment that the said suit in the said State court is one in 
 which there can be a final determination of the controversy, 
 so far as concerns the petitioner, without the presence of 
 the other defendants as parties in the cause. [No affidavit 
 of prejudice or local influence is required.] Then offer 
 surety as in preceding petition, and pray removal of the 
 cause, so far as concerns the petitioner for the removal, as 
 in the foreo:oins form. 
 
 Form of Petition for Removal on the ground of Citizen- 
 ship, under the Act of March 3, 1875, where the Adver- 
 sary Parties are all Citizens (f different States, and all 
 the Plaintiffs or all the Defendants unite in the Petition 
 for Removal. 
 
 In the Court of County, State of . 
 
 Plaintift'. | Petition for removal to the Circuit 
 .Court of the United States. District of 
 Defendant. 
 
 To Said Court : 
 
 Your Petitioner respectfully shows to this Honorable Court that the
 
 APPENDIX. 85 
 
 matter and amount in dispute in the above entitled suit exceeds, exclu- 
 sive of costs, the sum oi- value of five hundred dollars. 
 
 That the controversy in said suit is between citizens of different States, 
 and that the Petitioner was, at the time of the commencement of this 
 
 suit, and still is, a citizen of the State of — -, and that was 
 
 then, and still is, a citizen of the State of •, and that was then, 
 
 and still is, a citizen of the State of . [Here give in like man- 
 ner the citizenship of each of the several plaintiffs and defendants in the 
 cause.]* 
 
 And your petitioner offers herewith a bond with good and sufficient 
 surety for his entering in said Circuit Court of the United States, on 
 the fii'st day of its next session, a copy of the record in tliis suit, and for 
 paying all costs that may be awarded by said Circuit Court, if said Court 
 shall hold that this suit was wrongfully or improperlj^ removed thereto. 
 
 And he praj's this Honorable Court to proceed no further herein, ex- 
 cept to make the order of removal required by law, and to accept the 
 said surety and bond, and to cause the record herein to be removed into 
 
 said Circuit Court of the United States in and for the District of , and 
 
 he will ever pi'ay. 
 
 Attorneys for Petitioner. 
 
 The act of 1875 does not require the petition for the 
 removal to be verified ; but, as aft'ording au assurance that 
 tiie application is made in good faith, a verification may 
 very properly be added, which may be in the following- 
 form : 
 
 State of . 
 
 Countv. 
 
 I. , being duly sworn, do say that I am a member of the tkm 
 
 of , the attorneys for the petitioner in the above entitled cause ; 
 
 that I have read the foregoing petition, and know the contents thereof; 
 and that the statements arid allegations therein contained are true, as I 
 verily believe. 
 
 Subscribed by the said in my presence, and by liim sworn 
 
 to before me, this the day of . A. D. 187 . 
 
 If, however, all the parties plaintiff or defendant do not 
 join in the application for the removal, and the application 
 is made under the latter clause of sec. 2 of the act of March 
 3, 1875, by part of the plaintifls or part of the defendants 
 actually interested in the controversy, follow the preceding
 
 86 APPENDIX. 
 
 form down to the star (*), giving the citizenship of each of 
 the plaintilfs and defendants, and then add the following : 
 
 Your Petitioner states that, in the said suit above mentioned, there is a 
 controversy wliieh is wholly between citizens of different States, and 
 wliich can be fully determined as between them, to wit, a controversy 
 
 between the said petitioner and the said , the said 
 
 and the said , [naming the parties actually interested in the 
 
 said controversy]. 
 
 If the nature of the controversy does not fully appear in 
 the pleadings, it may be advisable to add a statement of the 
 facts showing the case to be one within the latter clause of 
 sec. 2 of the act of March 3, 1875. After which let the 
 petition follow the form above given. 
 
 If the PETITION FOR REMOVAL is ou the ground that the 
 suit is one " arising under the Constitution or Laws of the 
 United States, or treaties made under their authority,'' it is 
 not necessary to state the citizenship of the parties. It is, 
 however, proper to do so ; and if there are several parties, 
 and the transaction in controversy is complex, it may be 
 advisable to state the citizenship of each. The preceding- 
 form can, therefore, be followed down to the star (*), and 
 then there may be added the following : 
 
 Your Petitioner states that the said suit is one arising under the laws of 
 the United States, in this, to wit : [Here state the facts which show the 
 Federal character of the case; see ante^ sees. 2 and 8.] 
 
 After which let]]the petition continue as in the form above 
 given. 
 
 Form of bond for the removal of a cause under the act of 
 March 3, 1875. 
 
 Know all Men bv these Presents : 
 
 That I. , as principal, and . as sureties, are held 
 
 and firmly bound unto in the penal sum of dollars, the pay- 
 ment whereof well and truly to be made unto the said , heirs 
 
 and assigns, we bind ourselves, our heirs, representatives and assigns, 
 jointly and severally, firmly by these presents. 
 
 Yet, upon these conditions : The said having petitioned the
 
 APPENDIX . 87 
 
 Court of County. State of , for the removal of a certain 
 
 cause therein j^ending, wlierein plaijitiff , and de- 
 fendant , to the Circuit court of the United States in and for the Dis- 
 trict of . 
 
 Xow, if the said . j'our petitioner, sliall enter in the said 
 
 Circuit court of the United States, on the tirst day of its next session, a 
 copy of the record in said suit, and shall well and truly pay all costs 
 that may he awarded by said Circuit court of the United States, if said 
 court shall hold that said suit was wrongfully or improperly removed 
 thereto [if special bail teas originally requisite i7i said cause, then add ••and 
 shall then and there appear and enter special hail in said suit "] then 
 this obligation to he void; otherwise, in full force and virtue. 
 
 Witness our hands and seals, this day of , A. D. 187 . 
 
 [L. S.] 
 
 [L. S.] 
 
 — [L. S.] 
 
 It is advisable that the sureties justify, but it is not abso- 
 hitely necessary. Form of justification, see siqjra, at the 
 end of the form of bond under the act of March 2, 1867, 
 
 Form of Writ of Certiorari binder Sec. 7 of the Act of 
 March 3, 1875. 
 
 The president of the United States of America to the Judge 
 OF THE Court of [here describe the State court by name] . 
 
 Wliereas it hath been represented to the Circuit court of the United 
 
 States for the District of , that a certain suit was conniienced in the 
 
 court of [here name the State court] wherein , a citizen 
 
 of the State of , was plaintitf and . a citizen of the State 
 
 of . was defendant, and that the said duly tiled in the said 
 
 State court his petition for the removal of said cause into the said Cir- 
 cuit court of the United States, and tiled with said petition the bond 
 with surety required by the act of Congress of March 3, 1875, entitled 
 •' an act to determine the jurisdiction of the Circuit courts of the United 
 States, and to regulate the removal of causes from State courts and for 
 other piu'poses," and that the clerk of the said State court above-named 
 has refused to the said petitioner for the removal of said cause a copy of 
 the record therein, though his legal fees therefor were tendered by the 
 said petitioner : 
 
 You. therefore, are hereby commanded that vou forth^^^th cer-
 
 00 APPENDIX. 
 
 tify, or cause to be certified, to the said Circuit covut of the United 
 
 States for the District of , a full, true and complete copy of the 
 
 record and proceedings in the said cause, in which the said petition for 
 removal was filed as aforesaid, plainly and distinctly, and in as full and 
 ample a manner as the same now remain before you, together with this 
 writ ; so that the said Circuit court may be able to proceed thereon and 
 do what shall appear to them of right ought to be done. Herein fail 
 not. 
 
 Witness the Honorable Morrison K. Waite, Chief-.Jus- 
 [SEAL.] tice of the Supreme Comt, and the seal of the said Cir- 
 cuit court hereto affixed this the day of , A. D. 
 
 187 . 
 
 Clerk of said Circuit Court. 
 
 The writ of certiorari should be directed to the judge or 
 judges of the State court, but a return to the writ duly cer- 
 tified may be made, it is supposed, by the clerk of the said 
 court. Stewart v. Engle, 9 Wheat. 426. See Bacon's 
 Abridg., title Certiorari; ante, sec. 10.
 
 INDEX. 
 
 (The i-eferences are to pages; references to notes are indicated by the letter n. 
 
 ABATEMENT. 
 
 Plea in, proper practice where the petition sets out, as ground of 
 removal, facts that are not true, 75. 
 
 Motion to remand and plea in abatement contrasted ; grounds on 
 which each proceeds, 75. 
 ADMINISTRATOKS. See Executors and Administrators. 
 AFFIDAVIT. 
 
 Of prejudice or local influence, under the act of 1867. by whom 
 made, 61, 62. 
 
 Need not state reasons or facts showing the local influence, etc, 62. 
 
 May be taken and certified in conformity ^vith the local laws, 62, 
 n. 94. 
 
 Infants and persons non compos mentis, need not, and can not. 
 make affidavit, 62. 
 
 Reasons why affidavit should not always be required to be made 
 by the party himself, 62. 
 
 The proper practice, where attorney or agent makes it. 62. 
 ALIENS. 
 
 Right of, to remove suit against civil officers, etc., under sec. 644 of 
 Rev. Stats., 6, 7. 
 
 Can not remove suit, under Judiciary Act (Rev. Stats., § 640, sub- 
 division 1), 19, n. 25. 
 
 Alienage as the ground of Federal jurisdiction, 19, u. 25. 
 
 Resident unnaturalized foreigners, deemed aliens, 19, n. 25. See 
 also, 48, n. 65. 
 
 Indians, not aliens, 19, n. 25. 
 
 Alienage, no cause of removal under act of 1867, 23, n. 32. 
 
 A state can not make the subject of a foreign government a cit- 
 izen of the United States, 48, n. 65. 
 
 Corporations chartered by foreign coimtries, deemed aliens for 
 purposes of removal, 51. 
 AMENDMENTS. 
 
 In the pleadings, allowed after removal, 43.
 
 90 INDEX. 
 
 AMENDMENTS.— Continued. 
 
 Subsequent amendment in State court can not take away right of 
 
 removal when once perfected, 68. 
 Allowed, where attorney of petitioning plaintiff had misstated his- 
 citizenship, 71, n. 118. 
 AMOUNT IN DISPUTE. See Value. 
 APPEAL. See also Practice. 
 
 As to appeal, from decision of nisiprius State court granting or re- 
 fusing removal, to State appellate court, and effect thereof, 79 ^ 
 note. 
 ATTACIOIENT. 
 
 Suits by, removable under act of 1875, 37, n. 49. 
 
 Suits commenced by, may be removed by corporation of another 
 
 state, 50. 
 Of property, by express provision, holds after removal, until dis- 
 solved by Circuit court, 71, 72, n. 120. 
 ATTORNEY. 
 
 Whether an attorney may make the afhdavit of local influence in 
 
 any case, 62. 
 Mistake of, in stating citizenship of plaintiff in petition, permitted 
 to be corrected after removal, 71, n. 118. 
 AVERMENT. See Practice and Pleading. 
 
 B. 
 
 BANKRUPT ACT. 
 
 Case involving construction of. removable under act of 1875, 33. 
 BOND. See also Surety. 
 
 The defendants, under the Judiciary Act, must give several, or 
 
 joint and several bonds, 65 n. 103. 
 Instance of case remanded, because of non-compliance of bond 
 
 with act of 1867, 65, n. 103. 
 Power of State court to refuse bond, where the same is apparently 
 
 ample, 66. 
 Effect of petition and bond on the jurisdiction of State court. 
 
 Sec. XV, pp. 66-70. 
 Sufficiency of, by what court determined, 69. 
 Bond of indemnity valid, after removal, until when, 71. 
 Condition in bond to procure discharge from a writ of ne exeat, 
 
 that will estop the defendant to remove the cause, 74, n. 122. 
 Forms of Bond. See Appendix. 
 BURDEN OF PROOF. 
 
 As to iurisdictional facts, where contest is made after removal, 76. 
 
 CAUSES OF ACTIONS. 
 
 Improper joinder of. 17.
 
 INDEX. 91 
 
 CAUSES OF AC'no:SS.— Continued. 
 
 In an action for joint indebtedness, who must apply for removal 
 
 under acts of 1866 and 1867, 18, n. 23. 
 CERTIORAHI. 
 
 Will issue from Federal court having jurisdiction under act of 
 
 1875. to enforce removal, bring up record, etc., 44. 
 Object of the writ; — for what frequently resorted to, 44. 
 Improper return to writ, for State court to make, 78. 
 Forms of writ of Certiorari. See Appendix. 
 CHANCERY CAUSE. See Equity. 
 CITIZENSHIP. 
 
 Of parties, as ground of removal, under sec. 12 of Judiciary Act, 
 
 14. 
 Same, under sec. 11 of same act, 15. 
 Same, under act of 1866, 20, 21. (See also, 57.) 
 Same, under act of 1867. 23-25. (See also, 57.) 
 Same, under act of March 3, 1875. 26-31, passim. 
 Citizenship of what parties only essential in the determination of 
 
 Federal jm-isdiction, where such jurisdiction depends at all on 
 
 citizenship), 48. 
 State citizenship, for jurisdictional purposes, depends on what 
 
 merely, 4:8, n. 65. 
 Effect of bonajide change of domicile. 48. n. 65. 
 Citizenship of trustees, 48, n. 66. 
 Of corporations, by what alone determined, 49. 
 Same rule applicable to public and municipal corporations. 49, 50. 
 Effect of consolidation under charters of different states upon cit- 
 izenship of consolidated company and jurisdiction, 49, n. 67. 
 Citizenship of corporation chartered by several states, 49. n. 67. 
 Citizenship of national banks, for jurisdictional purposes, 51. 
 What petition should state in relation to citizenship of the parties, 
 
 63. 
 Mistake in original petition as to citizenship of plaintiff, allowed 
 
 to be corrected after removal, 71, n. 118. 
 Citizenship, requisite for removal, when presumed in Supreme 
 
 Court, in a case where the papers were afterwards destroyed by 
 
 fire, 76, n. 130. 
 Citizenship and residence not synonymous terms, 77. 
 CIVIL RIGHTS. 
 
 Right, to removal of cause, of persons denied civil rights. 5. u. 3. 
 CLERK OF STATE COURT. 
 
 Criminally liable for refusing copy of record to party applying for 
 
 removal, when, 44. 
 CONSPIRACY. See Torts. 
 CONSTITUTIONAL LAW. 
 
 Validity of the acts of 1789, 1833, 1863, 1866 and 1867, 11. 12. 
 
 The right to removal can not be defeated by state legislation, 13- 
 
 State statute attempting to restrict such right, void, 13.
 
 ■^2 INDEX. 
 
 COXSTITUTIOXAL J.XVf .—Continued. 
 
 And injunction will be granted to restrain revocation of license 
 
 under such statute, 13, n. 16. 
 Constitutionality of the act of 1866, 20, n. 26, 
 And that of the act of 1867 adjudged by the Supreme Court, 25. 
 Whether Congress has repealed it, 25. 
 
 Constitutional limitations of the Federal judicial power, 30 et seq. 
 CONTINUANCE. 
 
 Effect of continuance, hy consent, of cause that was at issue and 
 
 could have been tried, under act of 1875, 58. 
 CORPORATIONS. See also Joint Stock Companies. 
 
 Suit against Federal, when removable under act of July 27. 1868 
 
 (Rev. Stats., sec. 640), 7, n. 6. 
 Scope of the act ; — what corporations excluded from its operation ; 
 
 conditions essential to make it operative. 7-9. 
 Officers of. as defendants to a bill in equity, when, and in what 
 
 sense, nominal parties. 17. 
 Corporations are citizens of state, that created them. 49. 
 Citizenship of members immaterial, and averment or proof thereof 
 
 incompetent. 49. 
 Municipal corporations governed by same principle for jurisdic- 
 tional purposes. 49. 50. 
 Citizenship of corporation chartered by different states; its effect 
 
 on jurisdiction. 49, n. 67. 
 Effect of different companies constructing same line of road, 49, 
 
 n. 67. 
 Effect of consolidation of different companies. 49. n. 67. 
 Citizenship of consolidated company. 49. n. 67. 
 Right of foreign corporation to remove cause, not affected by state 
 
 legislation authorizing service of process on its agent in the state, 51 . 
 And its citizenship not affected even by its own assent to be sued 
 
 in another state. 51. 
 Corporations within the contemplation of the removal acts. 
 
 though they can make affidavit only through their proper 
 
 officers. 61. 
 President and general manager of railway company, prima facie 
 
 authorized to make the affidavit, 61. 62. 
 Case where the solicitor of the corporation defendant was held 
 
 authorized to verify petition. 62. 
 Superintendent of railway company, when only competent to make 
 
 affidavit. 62. 
 COSTS. 
 
 In suits removed from State courts, by what statutes governed, 42. 
 
 DECLARATION. See Practice and Pleading.
 
 INDEX. 
 
 93 
 
 DEFENSE. 
 
 What is a defense •• arising under the Constitution," etc., "-of the 
 United States?" Act of July 27, 1868, discussed; its scope and 
 operation, 7-9. 
 DISMISSAL. See Kemanding Cause. 
 DOMICILE. 
 
 The only essential element of state citizenship, for jurisdictional 
 
 purposes, 48, n. 65. 
 Effect of ibo7ia fide change of, on citizenship, 48. n. 65, 
 
 E. 
 
 EJECTMENT. 
 
 Ejectment suit not removable under acts of March 3. 1863. and 
 
 March 2, 1867, 7, n. 4. 
 But otherwise, under act of 1875, 37, n. 49. 
 EMINENT DOMAIN. 
 
 Suit to determine value of private property which an incorporated 
 company seeks to appropriate under the right of, removable. 36, 
 n. 47 ; 38, n. 49. 
 ENTERING AN APPEARANCE. 
 
 Meaning of, construed and applied. 18, 19 n. 24. 
 State com-t allowing an appearance to be entered nunc pro tunc. 
 does not restore right of removal under sec. 12 of Judiciary Act. 
 .52, n. 77. 
 EQUITY. 
 
 Bill in, to reform an insurance policy, is such an orujinal suit as 
 
 may be removed, 36. n. 47 ; 38, n. 49. 
 Parties to bill in, tiled in behalf of complainant and s?{c7i others as 
 
 might come in. etc., 49, n. 65. 
 Chancery cause, when only triable. 58. 
 
 Application for its removal, when in time, under act of 1875, 58. 
 "VVliefher laches in making up issues will defeat right of removal. 
 
 .58. 
 Effect of local law or practice reipiiring replication to complete 
 the issue, in absence of laches on part of party applying for 
 removal, 58. 
 ESTATES. 
 
 Removability of suits for the establishment of claims agamst the 
 estates of deceased persons, 38. 39. 
 ESTOPPEL. 
 
 Acts of party entitled to removal, that will estop him to apyly for 
 it, 73, 74, n. 122. 
 EXECUTORS AND ADMINISTRATORS. 
 
 Citizenship of, how affects Federal jurisdiction. 48, n. 66. 
 Such citizenship disregarded in what actions. 48. n. 66. 
 Citizenship of executors, how determined, 48, n. 66. 
 Effect of removal of executor to another state, 48. n. 66.
 
 94 INDEX. 
 
 FEDERAL JUEISDICTIOX. See also Suits; Attachment: Bank- 
 RiPT Act; Civil Eights; Ejectment; Eminent Do- 
 main; Equity; Estates; Garnishee; Injunction; Land 
 Title; Mining Claims; Eeplevin; Slander; Wills 
 and various other appropriate titles. 
 
 Its historical development; causes of its constant growth and 
 present importance, 4-5. 
 
 Whether appellate or original, in case of causes removed from 
 State courts. 5. 
 
 Jurisdiction of Circuit courts, under sees. 11 and 12 of Judiciary 
 Act. 14. 15. 
 
 Such jurisdiction dependent on what. 16. 
 
 Essential conditions of same, under sec. 12 of Judiciaiy Act, 
 17-19. 
 
 Alienage, as the ground of. 19, n. 25. 
 
 Original jurisdiction of U. S. Circuit courts under the act of 
 March 3, 1875. 26. 
 
 Enlarged federal jurisdiction under this act. in respect of subject- 
 matter. 27. 
 
 In respect of citizenship, under this act. 26-31. passm. 
 
 Limits of the Federal judicial power under the clause of the Con- 
 stitution of the United States: ■•All cases arising under the 
 Constitution and Laws of the United States." 32, 33. 
 
 The jurisdiction unquestionable, when the main controversy is be- 
 tween citizens of diflCerent states, and a mere incident can not 
 defeat the removal (Act of 1875). 34, 35. 
 
 Power of Federal couxl to continue, modify or dissolve injunction 
 of State court restraining execution of a judgment of the latter 
 court. 39. 
 
 Power of Federal court to enforce removal by writ of certiorari to 
 State court. 44. 
 
 To determine the Federal jurisdiction, citizenship of parties ben- 
 eficially interested not considered, 48. 
 
 Executors, administrators and trustees embraced in the rule, 48. 
 
 Eftect on, of charters granted by different states to same com- 
 pany, 49, n. 67. 
 
 Effect on, of several companies constructing same line of road, 
 49, n. 67. 
 
 Eftect on. of consolidation, 49. n. 67. 
 
 Over municipal corporation, not ousted bj* state statute. 50, 
 u. 68. 
 
 Federal court must determine the question of jurisdiction, where 
 proceedings are in conformity with the removal act. but the 
 facts are seriously contested. 67. n. 107. 
 
 Effect on, of erroneous determination by the State court, that pe- 
 tition is either sufficient or insufficient. 70.
 
 INDEX. 95 
 
 FEDEK.^L JLTIISDICTIOX.— CoTirtwwed. 
 
 Effect of petition for removal on the Federal jurisdiction. Sec. 
 XVI, pp. 70-72. 
 
 Until when the Federal jurisdiction does not attach. 71. 
 
 Includes power to allow amendments, 71. 
 
 The true test of, under sec. 5 of the act of 1875, 73. 
 
 Inquiry into the fai-ts of the petition, exclusively one for Federal 
 court, 75. 
 FINAE HEABIXG, See Trial. 
 FIXAE JUDGMENT. See Judgment. 
 FIXAL TRIAL. See Trial. 
 FORCE ACT. 
 
 Wliat suits removable under this act, (i. 
 
 G. 
 
 OARXISHEE. 
 
 A garnishee or tnistee, holding property of principal defendant, 
 may not as co-defendant remove cause as to himself only, 36, 
 n. 47. 
 
 H. 
 
 HABEAS CORPUS. 
 
 Certiorari and, under •■ Force Act.'' 44. 
 
 IXDIAXS. 
 
 Xot deemed aliens. 19. n. 25. 
 IXJUXCTIOX. 
 
 Will be granted to restrain revocation of license of insurance com- 
 pany under state statute restricting right of removal, 13, n. 16. 
 
 Injunction suit to restrain execution of judgment of State court, 
 removable. 39. 
 
 Writs of. issued by State court, continue in force after removal, till 
 dissolved by Circuit court, 71. 72. n. 120. 
 rXTERPRETATIOX. 
 
 Defense ■•arising under the Constitution." etc.. of the United 
 States. 7-9. 
 
 '• Citizenship " and •• residence.'* 77. 
 
 '■ Entering an appearance.'" IS. 19. 
 
 "Final judgment." 55. 56. 
 
 Justice of the Peace not a •• State court," 53. 
 
 "Record.'" 44, 
 
 '• Suit; "" •• action: "" " case; " •• cases in law and equity."' 40. 
 
 Suit •• arising under a law of the United States." 40.
 
 9 6 INDEX. 
 
 INT^ERPRWrATIO^— Continued. 
 
 " Any suit * * now pending," 60. 
 
 *^' Before or at the term., at which the cause could be first tried," 58. 
 
 ••Trial." 59. 
 
 •• Trial " and •• Hearing, "" 53. 
 
 -Final Trial." 53, .54. 
 
 JOINDEK. See Parties; Cause of Action. 
 JOLNT STOCK COMPANIES. 
 
 Diversity of judicial decisions as to the right of, hut partially en- 
 dowed vrith the attributes of corporations, to sue in, or remove 
 cause to Federal court, 50. 
 JUDGMENT. 
 
 "Final judgment;''' — meaning of the plirase in the acts of 1867, 
 and striking illustration, 55, 56. 
 JUDICIAPY ACT. 
 
 The Federal Judicial Sj^stem. as established by the act of 1789; — 
 its nature, extent and ^\'isdoni pointed out, 3. 
 
 Its growth and importance. 3 — 5. 
 
 Text of section 12, 10. n. 14. 
 
 Citizenship of the parties as the ground of removal under sec. 12 
 of this act. 14. 
 
 -Jurisdiction of the Cii'cuit court under sec. 11 of the same act, 15. 
 
 What circumstances must concur to give the power of removal 
 under sec. 12 of this act, 17-19. 
 JUKISDICTIOX. 
 
 As to Jurisdiction of State Courts, see State Courts. 
 
 As to .Jurisdiction of Federal Courts, see Federal Juris- 
 diction. 
 
 Conflict of jurisdiction; comity; expense and embaiTassmeut re- 
 sulting therefi-om. 78, note. 
 JUSTICE OF THE PEACE. 
 
 Not a •* State court." within the meaning of the act of 1867,53. 
 
 LACHES. 
 
 In making up issues, how aftect party applying for removal of 
 
 chancerv cause. 58. 
 Effect of local law requiring replication to complete issue, when 
 there is no defauU in making up the issues by the applicant for 
 removal. 58. 
 LAND TITLE. 
 
 Case relating to. not one of Federal jurisdiction, except when. 33. 
 LAW ACTION. See Practice and Pleading.
 
 INDEX. 97 
 
 LOCAL INFLLTENCE. 
 
 Affidavit of, not required by tlie act of 1866, 20, n. 26. 
 
 The Act of Marcli 2, 1867, 22-26; and see 61. 
 
 Construction and extent of application of this act, 23, n. 32. 
 
 Affidavit of, should be made by tlie party himself, if possible, 61. 
 
 By whom made, if filed on behalf of a corporation, 61. 
 
 Whetlier an attorney may mal^e the affidavit in any case, 62. 
 
 M. 
 
 MANDAMUS. 
 
 From Federal to State court not authorized, unless when, 45, note. 
 Writ of, or other process, to restrain State court from proceeding 
 with cause remanded, not issued by State Supreme Court until 
 when, 76, n. 128. 
 MINLN^G CLAOIS. 
 
 Kemoval of suits in relation to, under act of 1S75, 33. 
 MISTAKE. See Amendments; Petition; Citizenship; Practice 
 
 AND Pleading. 
 MODE OF MAKING APPLICATION. See Bond; Petition; Affi- 
 davit; Practice; Local Influence. 
 Exposition of subject in full. Sec. XIV, pp. 61-66. 
 MUNICIPAL COEPOEATIONS. See also Corporations; Citizen- 
 ship. 
 Reason wliy a citizen of another state should have his remedy 
 against a municipal corporation in the Federal court, 50, n. 68. 
 The Federal jurisdiction over, can not be ousted by state statutes. 
 50, n. 68. 
 
 N. 
 
 NATIONAL BANKS. 
 
 Citizenship of, for jurisdictional purposes, 51. 
 
 Excluded from the provisions of the act of July 27, 1868, 51. 
 
 But entitled to removal under any of tlie other acts, 51. 
 
 A simihir riglit not granted to the Beccivers of sucli associations, 52. 
 NOMINAL PARTIES. See Parties. 
 NOTICE. 
 
 Adverse party not entitled to, of time and place of tiling petition, 
 67, n, 107. 
 
 O. 
 
 OFFICERS. 
 
 As to Officers of Corporations, see Corporations. 
 Suits against Bevemte Officers of the United States, and against 
 officers and other persons acting under the Begistration Laios^ 
 when removable, and when not, under '■'■Force Act,''' 6. 
 7
 
 98 INDEX 
 
 PAETIES. 
 
 Who are, and who are not, nominal parties, 17, n. 22. 
 Nominal parties, as affecting the rij^ht of removal, 17, n. 22. 
 Fraudulent joinder of parties, 17, n. 22. 
 
 Officers of a corporation, in what sense nominal parties as defend- 
 ants to a bill in equity, 17, n. 22. 
 In an action for joint indi;btedness, under the acts of 1866 and 1867, 
 
 18, n. 23. 
 Parties entitled to removal under Judiciary Act, 14, 15. See also 47. 
 Parties entitled to removal under act of 18G6, 20, 21. See also, 
 47, 57. 
 • Parties entitled to removal under act of 1867, 23, 24. See also, 48. 
 Joinder of resident and non-resident plaintiffs under this act, 24. 
 Necessary party, though refused by State court the right to he- 
 
 come a party, entitled to removal, 35. 
 Parties entitled to removal under act of March 3, 1875, Sec. XII, 
 
 pp. 47-52. 
 Citizenship of the parties to the record alone determines the juris- 
 diction,— not that of parties beneficially interested, 48. 
 Who are parties to a bill in equity filed by complainant in behalf 
 of himself and such others as might come in, etc., 49, n. 66. 
 PARTNERS. 
 
 Right of one of several copartners to remove cause as to himself 
 under act of 1866, 57. 
 PETITION. 
 
 Verification of, under sec. ]2 of Judiciary Act, 18, n. 24. 
 
 Requisites of, under Rev. Stats., § 63!), 61. 
 
 Under act of 1867 (Rev. Stats., § 639, sub-div. 3), 61. 
 
 Requisites, function and eftect of petition, under act of March 3, 
 
 1875, 63, 64. 
 No necessity of verification, 63, 
 When necessary to state that the case is one " arising under the 
 
 Constitution, or laws or treaties of the United States," 64, 
 Effect of petition and bond for removal on jurisdiction of State 
 
 court. Sec. XV, pp. 66-70. 
 A petition founded on the act of 1867, though showing no right 
 under that act, held sufficient to effect removal under act of 1866, 
 67, n. 107. 
 The filling of petition and bond with the clerk of the State court in 
 
 vacation, ipso facto ousts the jurisdiction of State court, 70. 
 Amendment of, after removal had. when allowed, 71, 
 The facts set out in, subject of inquiry by the Federal comts exclu 
 
 sively, 75. 
 Forms of petitions for removal. See Appendix. 
 PLEADING. See Practice and Pleading.
 
 INDEX. 9 
 
 PEACTICE AND PLEADING. See also, Repleader; Amendments ; 
 Affidavits; Remanding Cause; Petition; Bond; 
 Time, and various other appropriate titles. 
 
 The uniting of legal and equitable relief in the same suit, in the 
 code states; effect on removal, 37. 
 
 Laio action, when removed to Federal court, must proceed as 
 such, 38 et seq. 
 
 Uniform practice in equity causes after removal, 40 et seq. 
 
 Pi-oper practice after removal, where the suit in the State court 
 unites legal^and equitable grounds of relief or defense. Neces- 
 sity of repleader, 41. 
 
 Filing of new.declaration required under Judiciary Act, 42, n. 53. 
 
 What is a sufficient averment of citizenship of corporations, to 
 sustain Federal jurisdiction, 49, n. 67. 
 
 Proper practice in regard to affidavit of local influence or preju- 
 dice, 61 et seq. 
 
 Mode of eflfecting removal under act of March 3, 1875, 62-66. 
 
 Quaere whether parties can remove a cause by a stipulation of the 
 jurisdictional facts, 66, n. 106. 
 
 Nature of issues to be tried and judgment to be rendered, not 
 changed by removal, 67, n. 107. 
 
 Manner of procedure in Federal court, after removal is effected; — 
 effect and force of copies of the pleadings in State court, 70 et seq. 
 
 New pleadingSj^not generally necessary, though sometimes advis- 
 able, 71. 
 
 Amendments in respect to jurisdictional facts sometimes allowed. 
 71. 
 
 Case of petitioning plaintiff, whose attornej^ had misstated his 
 citizenship, 71, n. 118. 
 
 Proper practice, where State court has improperly ordered re- 
 moval, 76. 
 
 Remedy where State court improperly asserts jurisdiction, and de- 
 nies the removal, 77-79. 
 
 Sufficient averment of citizenship exemplified, 77. 
 
 Remedy where Federal comt entertains jurisdiction over cause 
 improperly removed, 79. 
 PREJUDICE. See Local Influence. 
 PROBATE OF WILLS. See Wills. 
 
 R. 
 
 RAILWAY FORECLOSURE. 
 
 Right of removal of railway foreclosure suit sustained, notwith- 
 standing pendency of other suit in State court, 39. 
 REBELLION, THE. 
 
 Suits for acts done during, when removable under act of March 3, 
 1863, and act of March 2, 1867, 7, n. 4.
 
 100 INDEX. 
 
 KECErV^ERS. 
 
 Of National Banking Associations, as such, hav^ no power to re- 
 move cases to Federal court, 52. 
 RECORD. 
 
 Meaning- of " record " in sec. 7 of the act of March 3. 1875. 44. 
 REMANDING CAUSES TO STATE COURT. 
 
 The subject expounded, Sec. X^'II, pp. 72-79. 
 
 Uniform practice as to remanding cause before the act of 1875. 72. 
 
 Practice under that act, 73 et seq. 
 
 Duty of Circuit court, under 5th section of the act, 73. 
 
 Motion to remand, must be based on what; plea in abatement, 75. 
 
 Motion to remand, when proper; when not, 75. n. 126. 
 
 When cause should be renianded at any stage of the proceedings, 
 75, n. 126. 
 
 Remedy, where Federal court improperly remands, or refuses to 
 remand, cause, by writ of error or appeal to Supreme Court, 76. 
 REIVIEDIES. See Practice, and various appropriate titles. 
 REMOVAL ACTS. 
 
 Statutes giving the right of removal in special cases, mentioned, 5-9. 
 
 Acts of general operation, 9-12. 
 
 Construction of sees. 641 and 642 of the U. S. Revised Statutes, 
 5, n. 3. 
 
 The " Force Act "" of March 2, 1833. Its provisions ;— its re-enact- 
 ment; — construction; — cases removable under it, 6, n. 4. 
 
 Section 644 of the Revised Statutes, in regard to suits by alieiis, 6. 
 
 The act of March 3, 1863, as to removability of suits for acts done 
 during the late rebellion. 7, n. 4. 
 
 The act of March 2. 1867. as to same, 7, n. 4. 
 
 The act of July 27, 1868 (Rev. Stats., sec. 640), as to suits against 
 Federal Corporations. Text of the statute. 7. n. 6. 
 
 Provisions, scope, construction of this act. 7-9. 
 
 Section 12 of the Judiciary Act; text of. 10. n. 14. 
 
 Act of July 27, 1866; text of, 10, n. 14.— Sec. \L pp. 19-22. 
 
 Act of March 2. 1867; text of, 11. n. 14.— Sec. YII, pp. 22-26. 
 
 Revised Statutes, sec. 639; text of, 10, 11. 
 
 A'alidity of the acts, 11-13. 
 
 Construction of the act of 1866, as to cases where there can be a 
 partial final determination of the controversy, 20. n. 26. 
 
 Limited practical value of tlie act, 21. 
 
 Act of March 3. 1875; text of. 12. note. 
 
 Nature and extent of right given by this act. Sec. VIII, pp. 26-33. 
 
 Previous acts, as embodied in Rev. Stats., sec. 639. how attected. 
 by implication, by the act of 1875, 28, 29. 
 REPLEADER. 
 
 When necessary after removal of cause to Federal court. 41, 42. 
 
 'S\lien not necessary, but ad\isable. 42. 
 REPLEVIN. 
 
 Suits in, removable under act of March 3, 1875, 38. n. 49.
 
 INDEX. 101 
 
 l^ESIDENCE. See Domicile; Citizenship; Federal JuuisincxiON. 
 REVENUE LAWS. 
 
 What are, under act of March 2, 1833. G. n. 4. 
 RIGHT OF REMOVAL. 
 
 Material elements of the right, under tlie principal statutes, 
 
 13. 
 The right, as based upon citizenship of tlie parties, under sees. 11 
 
 and 12 of the Judiciary Act. 14. 15. 
 Necessary conditions, under sec. 12 of Judiciary Act. upon whidi 
 
 the right depends. 17-19. 
 Right to successive removals by different defendants, under various 
 
 removal acts, 18, n. 23. 
 Conditions tliat must co-exist to autliorize removal under the act 
 
 of 1866. 19. 
 Conditions under act of 1867. 23 et seq. 
 Right, as affected by citizenship, under same act. 23, n. 32. 
 Nature and extent of the right under the act of March 3. 1875, 
 
 Sec. VIII, pp. 26-33. 
 Where main controversy is between citizens of different states, 
 
 case is undoubtedly removable, and carries with it all incidents, 
 
 34, 35, note. 
 Right of removal sustained, where a necessary party had been 
 
 wrongfully refused the right to become a party by the State 
 
 court, 35. 
 Right of joint stock companies but partly endowed with attributes 
 
 of corporations. 50. 
 Right of corporation of another state to remove cause commenced 
 
 by attachment of property, 50. 
 State legislation powerless to defeat this right, 51. 
 Right of corporations chartered by foreign countries, 51. 
 Right of national banks to sue in Circuit court under any of tlie 
 
 acts, except that of July 27, 1868, 51. 
 Right of removal, how affected by laches of party applying there- 
 for, in case of a chancery cause, 58. 
 And how affected by local laws requiring replication to complete 
 
 the issue, in the al)sence of laches on the part of appli- 
 cant, 58. 
 Failure of party entitled to removal to apply for the transfer be- 
 fore proceeding to trial, defeats his right at subsequent term, 
 
 under act of 1875. 58, n. 88. 
 Wlien once perfected, tlie right of removal not taken away by 
 
 subsequent amendment in the State court, or otherwise. 68. 
 Right not waived by party entitled to removal contesting in 
 
 State court asserting jurisdiction after proper application, 
 
 77. 
 RIGHT OF SUFFRAGE. 
 
 Not considered in determining state citizenship for jurisdictional 
 
 purposes, 48, n. 65.
 
 102 INDEX. 
 
 SETTLEMENT OF ESTATES. See Estates. 
 SLANDEE. 
 
 An action of, when removable under - Force Act,"' 6, n. 4. 
 SPLITTING ACTION. 
 
 Under the act of 1866. Obvious purpose ; probable reason for, 21. 
 Not admissible under act of 1867. 23, n. 32. 
 Nor under the act of 1875, 29. 
 STATE COUKTS. 
 
 From what courts removal may be had,- Sec. X, pp. 43 and 44. 
 Proceedings in. after removal, not stayed by vn-it fi-om Federal 
 
 court. 45. note. 
 Do not embrace "Justices of the Peace." within the meaning of 
 
 the act of 1867, .53. 
 Nor Territorial courts, mthin the meaning of the act of 1875, even 
 after admission of the territory as a state, where the suit was 
 brought in the territorial court, 59. 
 Duty of. upon filing of proper petition and offer of sufficient surety, 
 
 66 et seq. 
 Whether order of removal is necessary, where the petition presents 
 
 a case within the removal acts, 67, 68. 
 Exercise of jurisdiction by State court, subsequent to filing of pe- 
 tition and bond, erroneous, 67. 
 Jurisdiction not ousted, where petition and pleadings do not show 
 
 removable case, 69. 
 Semble, same principle applies, where no security or bond was 
 
 offered, 69. 
 Quaere, whether State court has power, under act of 1875, to judge 
 
 of the sufficiency of surety offered, 69. 
 An erroneous determination, by the State court, of the sufficiency 
 or insufficiency of a petition, neither confers nor ousts Federal 
 jurisdiction, 70. 
 SUB JECT-M ATTEE . 
 
 In respect of, what suits may be removed under act of 1875. 27. 
 The subject-matter of the controversy must be money, or some- 
 thing capable of pecuniary estimat4on. 45. 
 Requisites of petition in regard to, under act of 1875, 63. 
 
 SUITS. 
 
 Natm-e of, that may be removed, under special statutes, 6, 7, 9. 
 Under the .Judiciary Act, 15 et seq. 
 Under the act of 1866, 20. 
 Uuder the act of 1867, 23 et seq. 
 Under the act of 1875. 26 et seq., 33. 
 
 Suits involving construction of the bankrupt act, removable under 
 act of 1875, 33.
 
 INDEX. 103 
 
 SUITS— Continued. 
 
 Suit involving title to land, when only removable. 33. 
 
 Suit in relation to mining claims, when removable, and when 
 not, 33. 
 
 Nature of, that may be removed under the several removal acts; — 
 practice as to repleader, Sec. IX, pp. 34-42. 
 
 Suit to determine value of land appropriated under right of emi- 
 nent domain, 36, n. 47; 38, n. 49. 
 
 Suits by attachment, 37, n. 49. 
 
 Ejectment actions. 37, n. 49. See also, 7, n. 4. 
 
 Original suit which may be removed, and supplement or sequence 
 of former suit, distinguished, 36, n. 47. 
 
 A bill in equity to reform an insurance policy, 36, n. 47 ; 38. n. 49. 
 
 Suit against garnishee as co-defendant, not removable as to him- 
 self alone. 36. n. 47. 
 
 Suit in replevin, removable. 38, n. 49. 
 
 Special statutory proceeding to confirm a tax title, 38, n. 49. 
 
 Suits to annul a will, in eftect suits in equity, and removable under 
 act of March 2, 1867, 38, n. 49. 
 
 Suits for the establishment of claims against the estates of deceased 
 persons, probate of \vills, etc., 38, 39. 
 
 Suits in State court, to restrain execution of a judgment by a seiz- 
 xive of plaintiff's lands, removable, 39. 
 
 Railway foreclosure suit removable under act of 1875 ; right sus- 
 tained even when, 39. 
 
 Removal of torts ; — conspiracy, 40. 
 
 Definition of " suit," •' action," '• case," '^ cases in law and equitj'," 
 40. 
 
 Suits " arising under a law of the United States," 40. 
 
 " J.n?/ suit * * * 7iO!';pe«(?in(if " (act of 1875. sec. 2) construed; — 
 what cases embraced by this term, 60. 
 SURETY.— BOXD. 
 
 Requirements of sec. 639 of the Rev. Stats, as to, 65. 
 
 Same, under sec. 3 of the act of 1875. 65. 
 
 Construction of this section, 66. 
 
 What ii'regularities \vill be deemed important, and what unim- 
 portant, 66. 
 
 Sufficiency of, determined by what court, 69. 
 
 T. 
 
 TERRIT0RL4L COURTS. 
 
 Are not ■• State courts." ^vithin the meaning of the act of 1875, 
 even after admission of the territory as a state. 59. 
 TEVIE OF APPLICATIOX. 
 
 Wlien removal must be applied for, under act of 1875, 27. 
 
 When application for removal must be made under sec. 12 of the 
 Judiciary Act, 52.
 
 104 INDEX 
 
 TIME OF APPLICATION— Conuntted. 
 
 The right of removal, under tliis provision, deemed waived, 
 when. 52. 
 
 Right of diftercnt defendants to remove at different times, 52, 
 n. 77. 
 
 Application too late after reference and continuance, 52, n. 77. 
 
 State court may not restore right by allowing an appearance min& 
 pro tunc, 52, n. 77. 
 
 Enlarged time under acts of 1866 and 1867, 53. 
 
 The words •' trial " and •• hearing"' refer respectively to what, 53. 
 
 •• Final Trial " defined, within tlie meaning of the act of 1867,. 
 .53, 54. 
 
 Application, under acts of 1866 and 1867, when too late, 54. 55. 
 
 Final judgment; — construed in reference to time of application 
 under same acts, 53-56, passim. 
 
 Application not too late, under acts of 1866 and 1867, where the 
 trial court has set aside verdict and granted new trial, 54. 
 
 Xor where the State appellate court lias wholly reversed judgment 
 and remanded case, 54. 
 
 Conflicting doctrines on tliis point announced by the State and 
 Federal courts, witli emuneration of the most impoi'tant cases in 
 support of both doctrines, 54 and 55, n. 81. 
 
 A new and interesting point, now awaiting decision in U. S. Su- 
 preme Court, 55, 
 
 Application, when too late imder act of 1875; — the question, as 
 affected by state legislation (Ohio and Minnesota), as to effect 
 of first judgment and of proceeding for review, 56, n. 83. 
 
 The provisions of the act of 1875, in regard to the time for removal, 
 57 et seq. 
 
 ''■ Before or at * * * the term at which the cause could be /rs« 
 tried,''' construed, 58. 
 
 Chancery cause can not be tried until issues are made up; appli- 
 cation for removal of such cause, when in time. 58. 
 
 Whether laches in making up issues will defeat right of removal, 58. 
 
 The word " trial," as used in sec. 3 of the act of 1875, in ref- 
 erence to the time' when removal must be applied for, construed, 
 .59. 
 
 The objection in the Federal court, •• that the application for re- 
 moval was not made in time in the State court,"' deemed ivaived 
 when. .59, 60. 
 
 Time allowed defendant under Revised Statutes, sec. 639. and under 
 sec. 7 of act of 1875. for filing copies of the record and entering 
 his appearance, 74. See also, n. 125. 
 TORTS. 
 
 Action of tort, wlien removable under acts of 1866 and 1867, 40. 
 TRIAL. 
 
 '•Trial"* and "liearing," in the acts of 1866 and 1867. distin- 
 guished; to what they respectively refer, 53.
 
 INDEX. 105 
 
 TRIAL. — Contimied. 
 
 Final trial, within the meaning of the act of 1867, construed, 53, 
 n. 79 ; 54. 
 
 Everj^ trial final, until in some form vacated, 56. 
 
 Doctrine applied to cause, where verdict has been rendered, and a 
 motion to set the verdict aside is pending, 56. 
 
 The word "trial" construed, as used in sec. 3 of act of 1875, in 
 reference to time when removal must be applied for, 59. 
 
 Term of court at which a cause might he finally heavd, governed 
 by the local law and practice, 59. 
 
 •* ^71?/ suit * * * now pending ''\(sec. 2 of act of 1875) con- 
 strued ; — what cases fall into the category intended by this lan- 
 guage, 60. 
 TRUSTEES. 
 
 Citizenship of, 48 and 49, n. (]G. 
 
 V. 
 
 VALUE OR A310UNT IN DISPUTE. 
 
 Under act of March 3, 1875, 27, 45-47. 
 
 It must exceed a certain amount, 46. 
 
 How determined, 46. 
 
 Requisites of petition, in regard to amount in dispute, 63. 
 VERIFICATION. See Petition. 
 
 W. 
 
 WAIVER. 1 
 
 What constitutes a waiver of the right of removal, under sec. 12 of 
 
 the judiciary Act, 52. 
 Of the objection to the removal, "that the application was not 
 
 made in time in the State court," by acquiescence, 59. 
 Objection not made in proper time, deemed waiver likewise, 59. 
 And such waiver conclusive, where the jurisdiction of the Circuit, 
 
 court is submitted to, 60. 
 Case where the objection was allowed pt next term, 60. 
 When waiver of obje ctioiis, on account of irregularities in bond 
 
 will be presumed, 66. 
 Waiver of right to have cause remanded, 73, n. 121. 
 Waiver of right of removal by subsequent conduct in State court, 74 
 Appearance of party entitled to removal, after proper application. 
 
 in State court refusing the transfer, not a waiver of right, 77. 
 Practice in such case ;— remedy, first, by appeal to the highest 
 
 court of state, and then by writ of error from U. S. Supreme 
 
 Court, 77. 
 WILLS. 
 
 Suits to annul, in effect suits in eiiuily, and removable under act 
 
 of 1867, 38. 
 Removability of suits concerning probate of wills, etc., 38. 39.
 
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