UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY REMOVAL OF CAUSES, THE REMOVAL OF CAUSES STATE TO FEDERAL COURTS. WITH A PBEUMINAET CHAPTEB ON JURISDICTION OF THE CIRCUIT COURTS Of THE UNITED STATES. ROBERT DESTY, AUTHOB OP "federal PBOCEDUBE," "FEDERAL CITATIONS," "FED- ERAL CONSTITUTION," " AMEBIC AN CBIMINAL LAW," ETC. SAN FRANCISCO: SUMNER WHITNEY & CO, 1882. T Copyright, 1882, By Sumner Whitney & Co. BACON & company, PRINTERS. PEEFAOE. It was originally intended to produce a work exclu- sively upon the subject of Removal of Causes, but that subject was found so intimately blended with the subject of jurisdiction of the circuit court, that it was found necessary to unite the two subjects, and the result has been the production of the present work. It seems that the Act of March 3rd, 1875, had the effect of repealing the Act of 1866, but had not the same effect upon the Act of 1867, amendatory thereto. While the later act extended the jurisdiction of the circuit courts, it at the same time contracted the right of removal, as to time of application for removal, from " any time before the trial or final hearing of the suit," as recited in the earlier act, to "be- fore or at the term at which said cause could be first tried, and before the trial thereof," as recited in the later act. And as both acts were to be read together, they could not fail to be productive of serious question as to their judicial construction, as will be seen by the number of cases cited in this volume where the question of the time of application for removal of the cause was brought up. Many applications for removal were relied on under the Act of 1867, which were decided as taken too late under the Act of 1875, and the cause remanded for want of jurisdiction, and the question of the effect of the later act was variously determined in different districts, in accord- ance with the rules of the local statutes and practice as to what constituted " before or at the term at which said cause could be first tried, and before the trial thereof," creating a series of decisions in apparent contradiction with each other, but in reality not inharmonious. Viil PREFACE. The right of removal depends, firstly, on the subject- matter of the controversy, without regard to citizenship of the parties; and secondly, on the diversity of citizen- ship of the parties. Under the first clause of § 2 of the Act of 1875, as to the right of removal based on the sub- ject-matter of the cause, all those on one side of the con- troversy must unite, and tlie cause be wholly removed; while under the second clause of the same section any one or more of either party could remove, if the entire controversy could be wholly determined between the parties litigant. The latest decisions of the Supreme Court, followed by those still later of the circuit and district courts, seem to have at last settled these points. The author has endeavored, in as terse language as possible, to express the decision of the court on these various points, leaving it to the reader to refer to the decisions themselves for the full text and the reasonings which led to the conclusion. The first part of this work is occupied by the United States Statutes upon the sub- ject of removal of causes, arranged in their chronological order. This is followed by a chapter on the jurisdiction of the circuit courts of the United States, and such sec- tions as pertain to the exercise of that jurisdiction. This is followed by the sections of the Revised Statutes and the Act of 1875 as to the removal of causes from State courts into the circuit courts, and tlie practice and pro- cedure incident thereto. Following this is a chapter on removals in special cases, and the practice and procedure incident thereto. The whole being annotated by all the principal cases down to the present time, and an index for reference, with a table of cases. EGBERT DESTY. October, 1882. OOK"TE]^TS. CHAPTER I. THE STATUTES. Judiciary Act of 1789, § 12, p. 13. Revenue Act of 1833, §§ 3, 4, p. 15. Revenue Act of 1866. §§67, 68, p. 17. Habeas Corpus Act of 1863, § 5, p. 21. Habeas Corpus, Amendment Act of 1866, §§ 3, 4, &, p. 23. Removal Act of 1866, p. 25. Removal Act, Amendment of 1867, p. 27. Removal by Corporations, Act of 1868, p. 28. Civil Rights Act of 1866, § 3, p. 29. Civil Rights Act of 1871, § 15, p. 30. Actions against civil officers of 1872, p. 33. Revised Statutes, §§ 639-647, p. 34. Removal Act of 1875, §§ 1-10, p. 43. CHAPTER n. JURISDICTION OF CIRCUIT COURTS. S 1. Original concurrent appellate, p. 51. § 1 a. Judicial power— constitutional provisions, p. 52. Sib. Power of Congress, p. 53. § 1 c. Civil cases in law and equity, p. 54. § 1 d. Amount in controversy, p. 56. § 1 e. Suits arising under the Constitution, p. 57. § 1 f. Suitsunder United States statutes and treaties, p. 58. § 1 g. Suits arising out of patent laws, p. 59. § 1 h. Suits arising out of copyright and trade-mark laws, p. § 1 i. "Where the Government is a party, p. 62. § 1 j. Controversy between citizens of different States, p. § 1 k. Jurisdiction over corporations, p. 65. 5 1 L National banks, p. 67. § m. § n. § 0. § P- § q. § 2. r. § 2 a. § 2 b. § 2 c. § 2 d. § 2 e. § 3. COXTENTS. When an alien is a party, p. 68. In criminal cases, p. 70. Assignment to confer jurisdiction, p. 70. Assignee of choses in action, p. 71. Territorial limit of jurisdiction, p. 74. Concurrent jurisdiction, p. 74. Liens— Appearance of parties, p. 77. Jurisdiction, how acquired, p. 79. Process bj' attachment, p. 80. On corporations, p. 81. Waiver of irregularities, p. 82. A personal privilege, and may be waived, p. 83. Revival on death of party, p. 84. CHAPTER III. REMOVAL OF CAUSES. § 4. Amount in dispute, p. 85. § 4 a. Constitutional provisions, p. 85. § 4 b. Amount in controversy, p. 86. § 4 c. Eight of removal, p. 88. § 4 d. Eight dependent on citizenship, p. 89. § 4 e. From any State court, p. 90. § 5. Suit against an alien, p. 91. § 5 a. Appearance, p. 91. § 5 b. Qualification as to citizenship, p. 93. § 6. Against an alien and a citizen, p. 95. § 6 a. Injunction, p. 96. § 6 b. Final determination of controversy, p. 97. § 6 c. Necessary parties, p. 98. § 7. Prejudice or local influence, p. 100. § 7 a. Statute construed, p. 101. § 7 b. Prejudice and local influence, p. 101. § 8. Proceedings to effect removal, p. 103. § 8 a. Bail defined, p. 104. § 9. Procedure on entry of copies of record, p. 104. § 10. Removal Act of ISlo— civil suits, p. 104. § 10 a. Suits removable, p. 105. § 10 b. Suits not removable, p. 107. § 10 c. Actions removable, p. 108. § 10 d. Suits against aliens, p. 109. § 10 e. By amount in controversy, p. 110. § 10 f . Cases under Constitution, laws, or treaties, p. 111. § 10 g. Suits pending, p. 113. CONTEXTS. § 10 h. Ancillary proceedings, p. 114. § 10 i. Controversies between parties, p. 115. § 10 j. Citizenship, p. 117. § 10 k. Citizenship of corporations, p. 118. § 10 1. Assignees, p. 121. § 10 m. Nominal parties, p. 123. § 10 n. Inseparable controversy, p. 125. § 10 0. The whole controversy removed, p. 128. § 10 p. Decisions under Acts of 1866, 1867, p. 131. § 10 q. Right to remove, p. 133. § 11. Removal proceedings, p. 135. § 11 a. Application, p. 136. § 11 b. Petition, p. 137. § 11 0. Bond and security, p. 142. § 11 d. At or before first term, p. 144. § 11 e. When cause could be first tried, p. 147. § 11 f. Time under prior statutes, p. 150. § 11 g. Jurisdisdiction of circuit court, p. 153. § 11 h. Proceedings in State court, p. 155. § 11 i. Effect of proceedings for removal, p. 157. § 11 j. Order of removal, p. 158. § 11 k. Effect of removal, p. 159. § 11 1. Practice and procedure, p. 160. § 12. Land titles from different States, p. 162. § 12 a. Conflicting land grants, p. 162. § 13. Records refused by clerk of State court, p. 164. CHAPTER IV. PRACTICE AND PROCEDURE. § 14. Time to file record— clerk— certiorari, p. 164. § 14 a. The record, p. 165. § 14 b. Time to file, p. 166. § 14 c. Duty of clerk, p. 166. § 14 d. Certiorari, p. 167. § 15. Attachments, injunctions, bonds, p. 168. § 15 a. In general, p. 169. § 15 b. Attachments, p. 169. § 15 c. Injunction, p. 170. § 16. Process not aff'ected by removal, p. 171. § 16 a. Original process, p. 171. § 17. Dismissal and remand, p. 172. § 17 a. Remanding cause for want of jurisdiction, p. 172. S 17 b. Motion to rptnunrl n 174 § 17 b. Motion to remand, p. 174 CONTENTS. § 17 c. For failure to file record, p. 176. § 17 d. Sufficiency of bond, p. 177. § 17 e. Application too late, p. 177. § 17 f. Effect of remand, p. 178. § 17 g. Error and appeal, p. 178. § 18. Proceedings on case removed, p. 179. § 18 a. Jurisdiction, p. 180. § 18 b. Procedure, p. 181. § 18 c. Autliority of court, p. 182. § 19. Issues of fact tried by jury, p. 183. § 19 a. Trial of issue, p. 184. § 20. Issues of fact tried by the court, p. 184. § 20 a. AVaiver of jury trial, p. 18-1. § 20 b. Findings by the court, p. 185. § 21. Division of opinion in civil causes, p. 185. § 22. Division of opinion in criminal causes, p. 186. § 23. Certificate of division, p. 187. CHAPTER V. EEMOVAL OF CAUSES IN SPECIAL CASES. Corporations under United States laws, p. 1 Denial of civil rights, p. 191. Denial of civil rights, p. 193. In criminal cases, p. 194. In general, p. 195. Mabeas corpus, p. 196. Officers of revenue, registration, etc., p. 196. In general, p. 198. Suits removable, p. 199. Criminal cases, p. 200. Practice and procedure, p. 201. Enforcing removal, p. 202. Aliens, particular, p. 203. From courts in Georgia, p. 203. From courts in Ohio, p. 203. From courts in Tennessee, p. 203. From courts in Missouri, p. 204. From courts in Missouri, p. 204. From courts in Afissouri, p. 205. From courts iti Missouri, p. 205. From courts in New York, p. 209: §24. §25. §25 a. § 25 b. §25 c. §26. §27. §27 a. §27 b. §27 c. §27 d. §27 e. §28. §29. §30. §31. §32. §33. §34. §35. §36. Pbecedents— Table op Cases— Indbx. THE STATUTES. THE JUDICIARY ACT. [Sec. 12 of Act of September 24, 1789, 1 U. S. Stats. 79.] Sec. 12. And be it further enacted. That if a suit be com- menced in any State court against an alien, or by a citizen of tbe State in which the suit is brought against a citizen of another State, and the matter in dispute exceeds the aforesaid sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court; and the defendant shall, at the time of entering his appearance in such State court, file a petition for the removal of the cause for tiial into the next circuit court to be held in the district where the suit is pending; or if in the district of Maine, to the district court next to be holden therein, or if in Kentucky district, to the district court next to be holden therein, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein — it shall then be the duty of the State court to accept the surety, and proceed no further in the cause ; and any bail that may have been origiuially taken shall be discharged, and the said copies being entered as aforesaid in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process. And any attachment of the goods or estate of the de- fendant by the original process shall hold the goods or Desty Removal.— ». 14 THE JUDICIARY ACT. estate so attached to answer the final jud^^ment in the same manner as by the laws of such State they would have been holden to answer final judgment had it been rendered by the court in which the suit commenced. And if in any action commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, shall state to the court, and make afiidavit if they require it, that he claims and shall rely upon a right or title to the land, under a grant from a State other than that in which the suit is pending, and produce the original grant or an exemplifi- cation of it, except where the loss of public records shall put it out of his power, and shall move that the adverse party inform the court, whether he claims a right or title to the land under a grant from the State in which the suit is pending; the said adverse [party] shall give such in- formation or otherwise not be allowed to plead such grant, or give it in evidence itpon the trial and if he informs that he does claim under such grant, the party claiming under the grant first mentioned may then, on motion, re- move the cause for trial to the next circuit court to be holden in such district; or if in the district of Maine, to the court next to beholden therein; or if in Kentucky dis- trict, to the district court next to be holden therein; but if he is the defendant, shall do it under the same regula- tions as in the before-mentioned case of the removal of a cause into such court by an alien ; and neither party re- moving the cause shall be allowed to plead or give evi- dence of any other title than that by him stated as aforesaid as the ground of his claim; and the trial of issues in fact in the circuit courts shall, in all suits ex- cept those of equity, and of admiralty, and maritime jurisdiction, be by jury. See Key. Stats. §§ 639, 646, 647, 64S; and sees. 4, 12, 15, and 19 of this book. REVENUE ACT. 15 REVENUE ACT. [Sees. 3 and 4 of Act of March 2, 1833, 4 U. S. Stats, 633, 634.] Sec. 3. And be it further enacted. That iu any case where suit or prosecution shall be commenced in a court of any State, against any officer of the United States, or other person, for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority, or title set lip or claimed by such officer, or other person under any such law of the United States, it shall be lawful for the defendant in such suit or x)rosecution, at any time before trial, upon a petition to tlie circuit court of the United States in and for the district in which the defendant shall have been served with process, setting forth the nature of said suit or prosecution, and verifying the said petition by affidavit, together with a certiflcate signed by an attorney or counselor at law of some court of record of the State in which such suit shall have been com- menced, or of the United States, setting forth tliat, as counsel for the petitioner, he has examined the proceed- ings against him, and has carefully inquired into all the matters set forth in the petition, and that he believes the same to be true ; Which petition, affidavit, and certiiicate shall be pre- sented to the said circuit court, if in session, and if not, to the clerk thereof at his office, and shall be tiled in said office, and the cause shall thereupon be entered on the docket of said court, and shall be thereafter proceeded in Jis a cause originally commenced in that court; And it shall be the duty of the clerk of said court, if the suit were commenced in the court below by summons, to issue a writ of certiorari to the State court, requiring said court to send to the said circuit court the record and l>roceedings in said cause; Or if it were commenced by capias, he sliall issue a writ of habeas corpus cum causa, a duplicate of which said writ 16 EEVENUE ACT. shall be delivered to the clerk of the State court, or left at his office by the marshal of the district, or his deputy, or some person duly authorized thereto ; And thereupon it shall be the duty of the said State court to stay all further proceedings in such cause, and the said suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be deemed and taken to be moved to the said circuit court, and any fur- ther proceedings, trial, or judgment therein in the State court shall be wholly null and void. And if the defendant in any such suit be in actual cus- tody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the said cause according to the rules of law and the order of the circuit court, or of any judge there- of, in vacation. And all attachments made and all bail and other secu- rity given upon such suit or prosecution shall be and continue in like force and effect as if the same suit or prosecution had proceeded to final judgment and execu- tion in the State court. And if, upon the removal of any such suit or prosecu- tion, it shall be made to appear to the said circuit court that no copy of the record and proceedings therein, in the State court, can be obtained, it shall be lawful for said circuit court to allow and require the plaintiff to proceed de novo, and to file a declaration of his cause of action, and the parties may thereupon preceed as in actions orig- inally brought in said circuit court. And on failure of so laroceeding, judgment of non prose- quitur may be rendered against the plaintiff, with costs for the defendant. Sec. 4. And he it further enacted, That in any case in which any party is, or may be by law, entitled to copies of the record and proceedings in any suit or prosecution in any State court, to be used in any court of the United REVENUE ACT. 17 States, if the clerk of said State court shall, upon de- mand and the payment or tender of the legal fees, refuse or neglect to deliver to such party certified copies of such record and proceedings, the court of the United States in which such record and proceedings may be needed, on proof, by afi&davit, that the clerk of such State court has refused or neglected to deliver copies thereof, on demand as aforesaid, may direct and allow such record to be sup- plied by affidavit, or otherwise, as the circumstances of the case may require and allow. And thereupon, such iiroceeding, trial, and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such rec- ords and proceedings had been regularly before the said court. See Rev. Stats. §§ 643, 646, 645; and sees. 27, 15, and 13 of this book. REVENUE ACT. [Sees. 67, 68, Act of July 13, 1866, 14 U. S. Stats, in, 172.] Sec. 67. And be it further enacted, That in any case, civil or criminal, where suit or prosecution shall be commenced in any court of any State against any officer of the United States, appointed under or acting by authority of the act entitled " An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes," passed June thirtieth, eighteen hundred and sixty-four, or of any act in addition thereto, or in amendment thereof, or against any person acting under or by authority of any such officer on account of any act done under color of his office, or against any person holding property or estate by title derived from any such officer, concerning such property or estate, and affecting the validity of this act or acts of which it is amendatory, it shall be lawful for the defendant in such suit or prosecution, at any time before trial, upon a petition to the circuit court of the 18 REVENUE ACT. United States in and for the district in wlricli the defend- ant shall have been served with process, setting forth the nature of said suit or prosecution, and verifying the said petition by affidavit, together with a certificate, signed by an attorney or counselor at law of some court of record of the State in which such suit shall have been com- menced, or of the United States, setting forth that, as counsel for the petitioner, he has examined the proceed- ings against hira, and carefully inquired into all the matters set forth in the petition, and that he believes the same to be true ; which petition, affidavit, and certifi- cate shall be presented to the said circuit court if in session, and if not, to the clerk thereof at his office, and shall be filed in said office, and the cause shall thereupon be entered on the docket of said court, and shall be thereafter proceeded in as a cause originally commenced in that court ; and it shall be the duty of the clerk of said court, if the suit were commenced in the court below by summons, to issue a writ of certiorari to the State court, requiring said court to send to the said circuit court the record and proceeding in said cause; or if it were commenced by capias, he shall issue a writ of habeas corpus cum causa, a duplicate of which said writ shall be delivered to the clerk of the State court, or left at his office, by the marshal of the district, or his deputy, or some person duly authorized thereto ; and thereupon it shall be the duty of the said State court to stay all further proceedings in such cause, and the said suit or prosecution, upon deliver 3^ of such process, or leaving the same as aforesaid, shall be deemed and taken to be moved to the said circuit court, and any further proceed- ings, trial, or judgment therein in the State court shall be wholly null and void. And if the defendant in any such suit be in act- ual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant REVENUE ACT. 19 into his custody, to be dealt with in the said cause accord- ing to the rules of law, and the order of the circuit court, or of any judge thereof in vacation. All attachments made, and all bail and other security given, upon such suit or prosecution shall be and continue in like force and effect as if the same suit or prosecution had proceeded to final judgment and execution in the State court; and if, upon removal of any such suit or prosecution, it shall be made appear to the said circuit court that no copy of the record and proceedings therein in the State court can be obtained, it shall be lawful for said circuit court to allow and require the plaintiff to proceed de novo, and to file a declaration of his cause and action, and the parties may thereupon proceed as in action[s] originally brought in said circuit court; and, on failure of so proceeding, judgment of nolle prosequi may be rendered against the i^laintiff, with costs for the de- fendant; provided, that an act entitled " An act further to provide for the collection of duty on imports," passed March second, eighteen hundred and thirty-three, shall not be so construed as to apply to cases arising under an act entitled "An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes," passed June thirtieth, eighteen hundred and sixty-four, or any act in addition thereto, or in amendment thereof, nor to any case in which the validity or interpretation of said act or acts shall be in issue; provided further, that if any officer appointed under and by virtue of any act to provide internal revenue, or any person acting under or by authority of any such officer, shall receive any injury to his person or property, for or on account of any act by him done, under any law of the United States, for the collection of taxes, he shall be entitled to maintain suit for damage therefor in the circuit court of the United States in the district wherein the party doing the injury may reside or shall be found. 20 ke\t:xue act. And all property taken or detained by any officer or other person, under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof. And if any person shall dispossess or rescue, or attempt to dispossess or rescue, any property so taken or detained as aforesaid, or shall aid or assist therein, such person shall be deemed guilty of a misdemeanor, and shall be liable to such punishment as is provided by the twenty- second section of the act for the punishment of certain crimes against the United States, approved the thirtieth day of April, Anno Domini one thousand seven hun- dred and ninety, for the willful obstruction or resistance of officers in the service of process. Sec. 68. And be it further enacted, That the fiftieth section of an act passed June 30th, eighteen hundred and sixty-four, entitled "An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes," is hereby repealed; pro- vided, that any case which may have been removed from the courts of any State, under said fiftieth section, to the courts of the United States, shall be remanded to the State court from which it was so removed, with all the records relating to such cases, unless the justice of the circuit court of the United States in which such suit or prosecution is pending shall be of opinion that said case would be removable from the court of the State to the circuit court under and by virtue of the sixty-seventh section of this act. And in all cases which may have been removed from any court of any State, under and by virtue of said fif- tieth section of said act of June thirtieth, eighteen hun- dred and sixty four, all attachments made, and all bail or other security given upon such suit or prosecution, shall be and continue in full force and effect until final HABEAS CORPUS ACT. 21 judgment and execution, whether such suit shall be prosecuted to final judgment in the circuit court of the United States, or remanded to the State court from which it was removed. See Rev. Stats. §§ 629, 643, 646; and sees. 27 and 15 of this book. HABEAS CORPUS ACT. [Sec. 5 of Act of March 3, 1863, 12 U. S. Stats. 756, 757.] Sec. 5. And be it further enacted, That if any suit or prosecution, civil or criminal, has been or shall be com- menced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his ap- pearance in such court, or if such appearance shall have been entered before the passage of this act, then at the next session of the court in which such suit or prosecution is pending, file a petition, stating the facts and verified by affidavit, for the removal of the cause for trial at the next circuit court of the United States to be holden in the dis- trict where the suit is pending, and offer good and suffi- cient surety for liis filing in such court, on the first day of its session, cojiies of such i:>rocess and other proceedings against him, and also for his appearing in such court and entering special bail in the cause, if special bail was orig- inally required therein. It shall then be the duty of the State court to accept the surety and proceed no farther in the cause or prosecution, and the bail that shall have been originally taken shall be discharged. And such copies being filed as aforesaid in such court of the United States, the cause shall proceed therein in the 22 HABEAS CORPUS ACT. same manner as if it had "been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the citizenship of the parties, any former law to the contrary notwithstanding. And any attachment of the goods or estate of the de- fendant by the original i3rocess shall hold the goods or estate so attached to answer the final judgment in the same manner as by the laws of such State they would have been holden to answer final judgment had it been rendered in the court in which the suit or x)rosecution was commenced. And it shall be lawful in any such action or jirosecution which may be now pending, or hereafter commenced, be- fore any State court whatever, for any cause aforesaid, after final judgment, for either party to remove and trans- fer, by appeal, such case during the session or term of said court at which the same shall have taken place, from such court to the next circuit court of the United States to be held in the district in which such appeal shall be taken, in manner aforesaid. And it shall be the duty of the person taking such appeal to produce and file in the said circuit court attested copies of the process, proceedings, and judgment in such cause; and it shall also be competent for either party, within six months after the rendition of a judgment in any such cause, by writ of error or other process, to re- move the same to the circuit court of the United States of that district in which such judgment shall have been ren- dered; and the said circuit court shall thereupon proceed to try and determine the facts and the law in such action, in the same manner as if the same had been there orig- inally commenced, the judgment in such case notwith- standing. And any bail which may have been taken, or property attached, shall be holden on the final judgment of the said circuit court in such action, in the same manner as if no such removal and transfer had been made as afore- said. AilEXDMEXT TO HABEAS COKPUS ACT. 23 And the State court from which any such action, civil or criminal, may be removed and transferred as aforesaid, ujion the parties giving good and sufficient security for the prosecution thereof, shall allow the same to be re- moved and transferred, and proceed no farther in the case; provided, hoicever, that if the party aforesaid shall fail dulj^ to enter the removal and transfer, as aforesaid, in the circuit court of the United States, agreeably to this act, the State court by which judgment shall have been rendered, and from which the transfer and removal shall have been made, as aforesaid, shall be authorized, on motion for that purpose, to issue execution, and to carry into effect any such judgment, the same as if no such re- moval and transfer had been made. And provided also, That no such appeal or writ of error shall be allowed in any criminal action or prosecution where final judgment shall have been rendered in favor of the defendant or respondent by the State court. And if in any suit hereafter commenced the plaintiff is non-suited or judgment passed against him, the defend- ant shall recover double costs. See Rev. Stats. §§ 641, 642, 646; and sees. 23. 26, and 15 of this book. AJVIENDMENT TO HABEAS COEPUS ACT. [Sees. 3, 4, and 5, Act of May 11, 1866, 14 U. S. Stats. 46, 47.] Sec. 3. And he it further enacted, That the right of removal from the State court into the circuit court of the United States, provided in the fifth section of the act to which this is amendatory, may be exercised after the appearance of the defendant, and the filing of his plea or other defense in said court, or at any term of said court subsequent to the term when the appearance is entered, and before a jury is empanneled to try the same; but nothing herein contained shall be held to abridge the right of such removal after final judgment in the State court, nor shall it be necessary in the State court to offer or give surety for the filing of copies in the circuit court 24 AaiENDMEXT TO HABEAS CORPUS ACT. of the United States; but, on the filing of the petition, verified as provided in said fifth section, the further proceedings in the State court shall cease, and not be resumed until a certificate, under the seal of the circuit court of the United States, stating that the petitioner has failed to file copies in the said circuit court at the next term, is produced. Sec. 4. And be it further enacted. That if the State court shall, notwithstanding the performance of all things required for the removal of the case to the circuit court aforesaid, proceed farther in said cause or prosecu- tion before said certificate is produced, then, in that case, all such further proceedings shall be void and of none effect; and all parties, judges, officers, and other persons thenceforth proceeding thereunder, or by color thereof, shall be liable in damages therefor to the party ag- grieved, to be recovered by action in a court of the State having proper jurisdiction, or in a circuit court of the United States for the district in which such further proceedings may have been had, or where the party, officer, or other person so offending shall be found; and upon a recovery of damages in either court, the party plaintiff shall be entitled to double costs. Sec. 5. And be it further enacted, That it shall be the duty of the clerk of the State court to furnish copies of the papers and files in the case to the party so petitioning for the removal; and upon the refusal or neglect of the clerk to furnish such copies, the said party may docket the case in the circuit court of the United States; and thereupon said circuit court shall have jurisdiction there- in, and may, upon proof of such refusal or neglect of the clerk of the State court, and upon reasonable notice being given to the plaintiff, require him to file a declara- tion or petition therein; and upon his default may order a nonsuit, and dismiss the case at the costs of the plaint- iff, which dismissal shall be a bar to any further suit touching the matter in controversy. See Bev. Stats. § § 641 , 642, 646 ; aud sees . 25, 26, and 15 of this book. REMOVAL ACT OF 1866. 25 EEMOVAL ACT OF 1866. [Act of July 27, 1866, 14 U. S. Stats. 306. 307.] Be it enacted bij the Senate and House of Representatives of the United States of America in Congress assembled. That if in any suit already commenced, or that may here- after he commenced, in any State court against an alien, or by a citizen of the State in which the suit is brought against a citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclu- sive of costs, to be made to appear to the satisfaction of the court, a citizen of the State in which the suit is brought is or shall be a defendant, and if the suit so far as relates to the alien defendant or to the defendant who is the citizen of a State other than that in which the suit is brought, is or has been instituted or prosecuted for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy, so far as it concerns him, without the pres- ence of the other defendants as parties in the cause, then and in every such case the alien defendant, or the defend- ant who is a citizen of a State other than that in which the suit is brought, may, at any time before the trial or final hearing of the cause, file a petition for the removal of the cause as against him into the next circuit court of the United States to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in said cause affecting or concerning him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein; and it shall be thereupon the duty of the State court to accept the surety, and proceed no farther in the cause as against the defendant so applying for its removal; and any bail that may have been originally taken shall be Desty Removal.— 3. 26 REMOVAL ACT OF 1866. discharged, and the said copies being entered as afore- said in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process against the defendant who shall have so filed a petition for its removal as above provided. And any attachment of the goods or estate of the defendant by the original process shall hold the goods or estate so attached to answer the final judgment, in the same manner as by the laws of such State they would have been holden to answer final judgment had it been rendered by the court in which the suit commenced; and any injunction granted before the removal of the cause against the defendant applying for its removal shall continue in force until modified or dissolved by the United States Court into which the cause shall be re- moved; and any bond of idemnity or other obligation given by the plaintiff upon the issuing or granting of any attachment, writ of injunction, or other restraining process against the defendant petitioning for the removal of the cause, shall also continue in full force, and may be prosecuted by the defendant, and made available for his idemnity in case the attachment, injunction, or other restraining process be set aside or dissolved, or judgment be rendered in his favor, in the same manner and with the same force and effect as if such injunction, attach- ment, or restraining process had been granted, and such bond had been originally filed or given in the court to which the cause is removed. And such removal of the cause, as against the defend- ant petitioning therefor, into the United States court, shall not be deemed to prejudice or take away the right of the plaintiff to proceed at the same time with the suit in the State court as against the other defendants, if he shall desire to do so. And the copies of all jileadings filed or entered as aforesaid in the United States court, by the defendant AME^'DMENT TO REMOVAL ACT OF 1866. 27 applying for the removal of the cause, shall have the same force and effect in every respect and for every purpose as the original pleadings would haA^e had by the laws and practice of the courts of such State if the cause had remained in the State court. See Rev. Stats. §§ 639, 640, 636; and sees. 4-9 of this book. A]\IENDMENT TO REMOVAL ACT OF 1867. [Act of March 2, 1867, 14 U. S. Stats. 558, 559.] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act entitled " An act for the removal of causes in certain cases from State courts," approved July twenty-seventh, eighteen hundred and sixty-six, be and the same is hereby amended as follows: That where a suit is now pending, or may hereafter be brought in any State court, in which there is controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, such citizen of another State, whether he be plaint- iff or defendant, if he will make and file in such State Court an affidavit stating that he has reason to and does be- lieve that from prejudice or local influence he will not be able to obtain justice in such State court, may, at any time before the final hearing or trial of the suit, file a petition in such State court for the removal of the suit into the next circuit court of the United States to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of all process, plead- ings, depositions, testimony, and other iDroceedings in said suit, and doing such other appropriate acts as, by the act to which this act is amendatory, are required to be done upon the removal of a suit into the United States court; and it shall be thereupon the duty of the State 28 REMOVAL BY CORPORATIONS. court to accept the surety, and proceed no farther in the suit; and the said copies being entered as aforesaid in such court of the United States, the suit shall there pro- ceed in the same manner as if it had been brought there by original process; and all the provisions of the act to which this act is amendatory, respecting any bail, attachment, injunction, or other restraining process, and respecting any bond of idemnity, or other obligation given upon the issuing or granting of any attachment, injunction, or other restraining process, shall apply with like force and effect in all respects to similar matters, jirocess, or things in the suits for the removal of which this act provides. See Rev. Stats. §§ 639, 646; aud sees. 4, 5, 6, 7, 8, 0, and 15 of this book. REMOVAL BY CORPORATIONS. [Sec. 2 of Act of July 27, 1868, 15 U. S. Stats. 227.] Sec. 2. And be it further enacted, That any corporation, or any member thereof, other than a banking corporation, organized under a law of the United States, and against which a suit at law or in equity has been or may be com- menced in any court otlier than a circuit or district court of the United States, for any liability or alleged liability of such corporation, or any member thereof as such mem- ber, may have such suit removed from the court in which it may be pending, to the proper circuit or district court of the United States, uj)on filing a petition therefor, veri- fied by oath, either before or after issue joined, stating they have a defense arising under or by virtue of the Constitution of the United States, or any treaty or law of the United States, and olfering good and sufficient surety for entering in such court on the first day of its session, copies of all process, pleadings, disjoositions, testimony, and other proceedings in said suit, and doing such other appropriate acts as are required to be done by the act en'* titled " An aet for the removal of causes in certain cases CIVIL EIGHTS ACT. 29 from State courts," approved July twenty-seventh, eigh- teen hundred and sixty-six; and it shall be thereupon the duty of the court to accept the surety and proceed no farther in the suit; and the said topics being entered as aforesaid in such court of the United States, the suit shall then proceed in the same manner as if it had been brought there by original process, and all the provisions of said act in this section referred to, respectiug any bail, attach- ment, injunction, or other restraining process, and re- specting any bond of indemnity or other obligation given upon the issuing or granting of any attachment, injunc- tiou, or other restraining process, shall apply with like force and effect in all respects to similar matters, process, or things in the suits for the removal of which this act provides. See Rev. Stats 5§ 640, 646; and sees. 24 and 15 of this book. CIVIL RIGHTS ACT. [Sec. 3 of Act of April 9, 1866, 14 U. S. StatS, 27.] Sec. 3. And be it further enacted, That the district courts of the United States, within their respective dis- tricts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the tirst section of this act ; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any such person, for any cause whatsoever, or against any officer, civil or military, or other person, for any arrest or im- prisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a bureau for the relief of freed- oO CIVIL RIGHTS. men and refugees, and all acts amendatory thereof, or for refusing to do any act upon the ground that it would he inconsistent with this act, such defendant shall have the right to remove such cause for trial to the proper district or circuit court, in the manner prescribed by the "Act relating to habeas corj)us, and regulating judicial pro- ceedings in certain cases," approved March three, eighteen hundred and sixty-three, and all acts amenda- tory thereof. The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdic- tion of the cause, civil or criminal, is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern said courts in the trial and disposition of such cause, and, if of a criminal nature, in the infliction of punishment on the party found guilty. See Kev. Stats. §§ 641, 642, 646; and sees. 25, 26, and 15 of this book. CIVIL EIGHTS. [Sees. 15, 16, and 17, Act of February 28, 1871, 16 U. S. Stats. 438, 439. j Sec. 15. And be it further enacted, That the jurisdiction of the circuit court of the United States shall extend to all cases in law or equity arising under the jDrovisions of this act or the act hereby amended; and if any person shall receive any injury to his person or property for or on account of any act by him done under any of the pro- visions of this act or the act hereby amended, he shall be CIVIL RIGHTS. 31 entitled to maintain suit for damages therefor in the cir- cuit court of the United States in the district wherein the party doing the injury may reside or shall be found. Sec. 16. And be it further enacted, That in any case where suit or prosecution, civil or criminal, shall be com- menced in a court of any State against any officer of the United States, or other person, for or on account of any act done under the provisions of this act, or under color thereof, or for or on account of any right, authority, or title set up or claimed by such officer or other person un- der any of said provisions, it shall be lawful for the de- fendant in such suit or prosecution, at any time before trial, upon a petition to the circuit court of the United States in and for the district in which the defendant shall have been served with process, setting forth the nature of said suit or prosecution, and verifying the said petition by affidavit, together with a certificate signed by an attorney or counselor at law of some court of record of the State in which such suit shall have been commenced, or of the United States, setting forth that as counsel for the peti- tion[er] he has examined the proceedings against him, and has carefully inquired into all the matters set forth in the petition, and that he believes the same to be true; which petition, affidavit, and certificate shall be presented to the said circuit court, if in session, and if not, to the clerk thereof at his office, and shall be filed in said office, and the cause shall thereupon be entered on the docket of said court, and shall be thereafter proceeded in as a cause originally commenced in that court; and it shall be the duty of the clerk of said court, if the suit was commenced in the court below by summons, to issue a writ of certio- rari to the State court, requiring said court to send to the said circuit court the record and proceedings in said cause; or if it was commenced by capias, lie shall issue a writ of habeas corpus cum causa, a duplicate of which said writ shall be delivered to the clerk of the State court, or left at his office by the marshal of the district, or his deputy, 32 CIVIL RIGHTS. or some j)ersons duly authorized thereto; and thereupon it shall be the duty of the said State court to stay all further proceedings in such cause; and the said suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be deemed and taken to be moved to the said circuit court, and any further proceedings, trial, or judgment therein in the State court shall be M'holly nxill and void; and any person, whether an attor- ney or officer of an^^ State court, or otherwise, who shall thereafter take any steps, or in any manner proceed in the State court in any action so removed, shall be guilty of a misdemeanor, and liable to trial and punishment in the court to which the action shall have been removed, and upon conviction thereof shall be punished by imprison- ment for not less than six mouths nor more than one year, or by line not less than five hundred nor more than one thousand dollars, or by both such fine and imprisonment, and shall in addition thereto be amenable to the said court to which said action shall have been removed as for a con- tempt; and if the defendant in any such suit be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the said cause according to the rules of law and the order of the circuit court, or of anj'^ judge thereof in vacation. And all attachments made, and all bail or other security given upon such suit or prosecution, shall be and continue in like force and effect as if the same suit or prosecution had proceeded to final judgment and execution in the State court. And if upon the re- movel of any such suit or prosecution it shall be made to appear to the said circuit court that no copy of the record and i^roceedings therein in the State court can be obtained, it shall be lawful for said circuit court to allow and re- quire the plaintiff to proceed cle novo, and to file a declar- ation of his cause of action, and the parties may thereupon proceed as in actions onginally brought in said circuit ACTIONS AGAEN'ST CFV^IL OFFICERS. 33 court; and on failure of so proceeding judgment of non prosequitur may be rendered against the plaintiff, with costs for the defendant. Sec. 17. And be it further enacted, That in any case in which any party is or may be by law entitled to copies of the record and proceedings in any suit or prosecution in any State court, to be used in any court of the United States, if the clerk of said State court shall, upon demand and the payment or tender of the legal fees, refuse or neg- lect to deliver to such party certified copies of such, record and proceedings, the court of the United States in which such record and proceedings may be needed, on proof by affidavit that the clerk of such State court has refused or neglected to deliver copies thereof on demand as aforesaid, may direct and allow such record to be supplied by affi- davit or otherwise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial, and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceedings had been regularly before the said court; and hereafter in all civil actions in the courts of the United States either party thereto may notice the same for trial. See Kev. Stats. §§ 643, 646, 645; and sees. 27, 15, and 13 of this book. ACTIONS AGAINST CIVIL OFFICERS. [Act of IVIarch 30, 1873. Amendment to July 27, 1866, 17 U. S. Stats. 44.] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever a personal action has been or shall be brought in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States, being non-resident of that State wherein jurisdiction is obtained by the State court, by personal service of process, such action may be removed into the circuit court of the United States in and 34 REVISED STATUTES. for tbe district ia which the defendant shall have been served with process, in the same manner as now provided for the removal of an action brought in a State court by( the provisions of section three of the act of March second, eighteen hundred and thirty-three, entitled "An act fur- ther to provide for the collection of duties on imports." See Rev. Stats. § 644; and sec. 28 of this book. EE VISED STATUTES. § 639. Removal of suits against aliens, etc., •where amount of $500 in dispute.— Any suit com- menced in any State court, wherein the amount in dis- pute, exclusive of costs, exceeds the sum or value of five hundred dollars, to be made to appear to the satisfaction of said court, may be removed for trial into the circuit court for the district where such suit is pending, next to be held after the tiling of the petition for such removal hereinafter mentioned, in tlie cases and in the manner stated in this section. First. "When the suit is against an alien, or is by a cit- izen of the State wherein it is brought, and against a citi- zen of another State, it may be removed on the petition of such defendant, filed in said State court at the time of en- tering his ajjpearance in said State court. Second. When the suit is against an alien and a citizen v^f 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 de- fendant, filed at any time before the trial or final hearing of the cause, if so far as it relates to him it is brought for tlie purpose of restraining or enjoining him, or is a suit in which there can be a final determination of the contro- versy, so far as concerns him, without the presence of the other defendants as i^arties in the cause. But such re- moval shall not take away or prejudice the right of the EEVISED STATUTES. 35 plaintiff to proceed at the same time with the suit in the State court, as against the other defendants. Third. When a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of fil- ing said petition, he makes and files in said State court an affidavit, stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court. In order to such removal, the petitioner in the cases aforesaid must, at the time of filing his petition therefor, offer in said State court good and sufficient surety for his entering in such circuit court, on the first day of its ses- sion, copies of said process against him, and of all plead- ings, depositions, testimony, and other proceedings in the cause, or in said cases where a citizen of the State in which the suit is brought is a defendant, copies of all pro- cess, pleadings, depositions, testimony, and other proceed- ings 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 there- in. It shall thereupon be the duty of the State court to accejDt the surety and to proceed no farther in the cause against the petitioner, and any bail that may have been originally taken shall be discharged, When the said copies are entered as aforesaid in the circuit court, the cause shall there proceed in the same manner as if it had been brought there by original pro- cess, and the copies of pleadings shall have the same force and effect, in every respect and for every purpose, as the original pleadings would have had by the laws and practice of the courts of such State if the cause had re- mained in the State court. 1 U. S. Stat. 79; 14 id. 306; 14 id. 558; see sees. 4-9 of tliis book. 3G REVISED STATUTES. § 640. Removal of suits against corporations organized under a law of United States.— Any suit commenced iu any court other than a circuit or district court of the United States, against any corporation other than a banking corporation, organized under a law of the United States, or against any member thereof as such member for any alleged liability of such corporation, or of such member as a member thereof, maybe removed for trial in the circuit covu't for the district where such suit is pending, upon the petition of such defendant, veri- lied 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. See sec. 24 of this book. § 641. Removal of causes against persons de- nied any civil rights, etc.— When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prose- cution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time be- fore the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next circuit court to be held in the district where it is REVISED STATUTES. 37 pending. Upon tlie filing of such petition all further proceedings in the State courts shall cease, and shall not he resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had pro- ceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to fur- nish such defendant petitioning for a removal copies of said process against him, and of all pleading, deposi- tions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the circuit court on the first day of its session, the cause shall proceed therein in tbe same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may there- upon docket the case in the circuit court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require tlie i:)laintiff to file a declaration, j)etition, or complaint in the cause; and in case of his default, may order a nonsuit and dismiss the case at the costs of the jilaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in tlie circuit court as herein provided, a certificate, under the seal of the circuit court, stating such failure, shall be given, and upon the production thereof in said State court, the cause shall proceed therein as if no petition for a removal had been filed. 16 U. S. Stat. 144; 14 id. 27; 12 id. 756; 14 id. 46; sec sec. 25 of this book. § 642. When petitioner is in actual custody of State court. — AYhen all the acts necessary for the re- moval of any suit or prosecution, as provided in the pre- Desty Removal.— 4. 38 EE\^SED STATUTES. ceding section, have been performed, and the defendant petitioning for such removal is in actual custody on pro- cess issued by said State court, it shall be the duty of the clerk of said circuit court to issue a writ of habeas corpvs cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said circuit court according to law and the orders of said court, or in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ. 14U. S.Stat. 385; 12 id. 756; 14 id. 46; 14 id. 27; see sec. 26 of this book. § 643. Removal of suits and prosecutions against revenue ofiBcers and ofiBcers acting under registration la-ws— When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter en- acted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law; or is commenced against any officer of the United States, or other person, on account of any act done under the provisions of Title XXVI., " The Elective Franchise," or on account of any right, title, or authority claimed by such officer or other person under any of the said provisions— the said suit or prosecu- tion may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant to said circuit court, and in the following manner. Said petition shall set forth the nature of the suit or prosecution, and be verified by affi- REVISED STATUTES. m ■ davit ; and together with a certificate signed by an attor- ney or counselor at law of some court of record of the State where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the peti- tioner, he has examined the proceedings against him, and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said circuit court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the circuit court, and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had pro- ceeded to final judgment and execution in the State court. ^Vhen the suit is commenced in the State court by sum- mons, subpoena, i^etition, or another process except capias, the clerk of the circuit court shall issue a writ of certi- orari to the State court, requiring it to send to the circuit court the record and jDroceedings in the cause. When it is commenced by capias, or by any other similar form of proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the State court, or left at his office by the marshal of the district, or his deputy, or by some person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the circuit court, and any further proceedings, trial, or judg- ment therein in the State court shall be void. And if the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of 40 REVISED STATUTES. the circuit court, or in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the circuit court that no copy of the record and proceedings therein in the State court can be obtained, the circuit court may allow and require the plaintiff to proceed de novo, and to file a declaration of his cause of action; and the parties may thereupon proceed as in actions originally brought in said circuit court. On failure of the plaintiff so to proceed, judgment of nan prosequitur may be rendered against him, with costs for the defendant. 4 U. S. Stat. 633; 14 id. 171; 16 id. 438; see sec. 27 of this book. § 644. Removal of suits by aliens in a particular case. — Whenever a personal action has been or shall be brought in any State court by an alien against any citizen of a State who is, or at the time the alleged action ac- crued was, a civil officer of the United States, being a non-resident of that State wherein jurisdiction is obtained by the State court by personal service of process, such action may be removed into the circuit court of the United States in and for the district in which the defendant shall have been served with the process, in the same man- ner as now provided for the removal of an action brought in a State court by the provisions of the preceding sec- tion. 7 U. S. Stat. 44; see sec. 28 of this book. § 645. Wlien copies of records are refused by- clerk of State court. — In any case where a party is en- titled to copies of the record and proceedings in any suit or j^rosecution in a State court, to be used in any court of the United States, if the clerk of said State court, upon demand, and the payment or tender of the legal fees, re- fuses or neglects to deliver to him certitied copies of such records and proceedings, the court of the United States in which such record and proceedings are needed may, on REVISED STATUTES, 41 l^roof by affidavit that the clerk of said State court has refused or neglected to deliver copies thereof, on demand as aforesaid, direct such record to be supplied by affi- davit, or otherwise, as the circumstances of the case may require and allow; and thereupon, such proceeding, trial, and judgment may be had in the said court of the United States, and all such processes awarded, as if certi- lied copies of such records and proceedings had been reg- ularly before the said court. 4 U. S. Stat. 634; 16 id. 439; see sec. 13 of this book § 646. Attachments, injunctions, and indemnity bonds to remain in force after removal.— When a suit is removed for trial from a State court to a circuit court, as provided in the foregoing sections, any attach- ment of the goods or estate of the defendant by the orig- inal process shall hold the same to answer the final judgment, in the same manner as by the laws of such State they would have been held to answer final judg- ment had it been rendered by the court in which the suit was commenced; and any injunction granted before the removal of the cause against the defendant applying for its removal shall continue in force until modified or dis- solved by the United States court into which the cause is removed ; and anj^ bond of indemnity or other obligation, given by the plaintiff upon the issuing or granting of any attachment, writ of injunction, or other restraining pro- cess, against the defendant petitioning for the removal of the cause, shall also continue in full force, and may be prosecuted by the defendant and made available for his indemnity in case the attachment, injunction, or other re- straining process be set aside or dissolved, or judgment be rendered in his favor, in the same manner and with the same effect as if such attachment, injunction, or other re- straining process had been granted, and such bond had been originally filed or given in such State court. 1 U. S. Stat. 79; 14 id. 306; 14 id. 558; 15 id. 227; 14 id. 27; 12 id. 756; 14 id. 46; 14 id. 385; 4 id. 633; 14 id. 171; 16 id. 438, 439; see sec. 15 of this book. 42 REVISED STATUTES. § 647. Removal of suits where parties claim land under titles from different States.— If, in any action commenced in a State court, where the title of land is concerned, and the parties are citizens of the same State, and the matter in dispute, exclusive of costs, ex- ceeds the sum or value of five hundred dollars, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, states to the court, and makes affidavit if they require it, that he claims and shall rely upon a right or title to the land under a grant from a State other than that in which the suit is pending, and produces the original grant, or an exemplification of it, except where the loss of public records shall put it out of his i:)ower, and moves that the adverse party inform the court whether he claims a right or title to the land under a grant from the State in which the suit is pending, the said adverse party shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence ui^on the trial; and if he gives information that he does claim under such grant, the party claiming under the grant first mentioned may, on motion, remove the cause for trial into the next circuit court to be holden in the district where such suit is pending. If the party so removing the cause is defendant, the removal shall be made under the regulations governing removals of a cause into such court by an alien; and neither jaarty removing the cause shall be allowed to plead or give evi- dence of any other title than that stated by him as afore^ said as the ground of his claim. 1 U. S. Stat. 79; see sec. 12 of this book. REMOVAL ACT OF 1875. 43 REMOVAL ACT OF 1875. AN ACT TO DETERMINE THE JURISDICTION OP CIRCUIT COURTS OF THE UNITED STATES, AND TO REGULATE THE REMOVAL OF CAUSES FROM STATE COURTS, AND FOR OTHER PURPOSES. § 1. Jurisdiction— original, concurrent, appellate. — Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled. That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their au- thority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy be- tween citizens of different States, or a controversy be- tween citizens of the same State claiming lands under grants of different States, or a controversy between citi- zens of a State and foreign States, citizens, or subjects. And shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concur- rent jurisdiction with the district courts of the crimes and offenses cognizable therein. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against any person by any original process or pro- ceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings, except as hereinafter provided. Nor shall anv circuit or district court have cognizance 44 REMOVAL ACT OF 1875. of any suit founded on contract in favor of an assignee, unless a suit might have been i^rosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law mer- chant and bills of exchange. And the circuit courts shall also have appellate juris- diction from the district courts under the regulations and restrictions prescribed by law. Rev. Stat. § 639; see sec. 1 of this book. § 2. Civil action, removal of.— That any suit of a civil nature at law or in equity, now pending or hereafter brought in any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hun- dred dollars, and arising under the Constitution or laws of the Unitod States, or treaties made, or which shall be made, under their authority, or in which the United States shall be jilaintiff or i^etitioner, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of tbe same State claim- ing lands under grants of different States, or a contro- versy between citizens of a State and foreign States, citizens, or subjects, either party may remove said suit into the circuit court of the United States for the proper district. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. Kev. Stats. §§ 639-642; see sec. 10 of this book. § 3. Removal, proceedings.— That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preced- REMOVAL ACT OF 1875. 45 ing section, shall desire to remove such suit from a State court to the circuit court of the United States, he or they may malce and 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 there- with a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for jDaying all costs that may be awarded by the said cir- cuit court, if said court shall hold that such suit was wrongfully or imj^roperly removed thereto, and also for there appearing and entering special bail in such suit, if special bail was originally requisite therein, it shall then be the duty of the State court to accept said petition and bond, and proceed no farther in such suit; and any bail that may have been originally taken shall be discharged; and the said copy being entered as aforesaid in said cir- cuit court of the United States, the cause shall then pro- ceed in the same manner as if it had been originally commenced in the said circuit court. And if in any action commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their jiower, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such information. 46 REMOVAL ACT OF 1875. or Otherwise not be allowed to plead such grant, or give it in evidence upon the trial ; and if he or they inform that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district. And any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim. And the trial of issues of fact in the circuit courts shall, in all suits except those of equity, and of admiralty and maritime jurisdiction, be by jury. Rev, Stats. §§ 647, 648, 649; see sec. 11 of this book. § 4. Process, not affected by.— That when any suit shall be removed from a State court to a circuit court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would liave been held to answer final judgment or decree had it been rendered by the court in which such suit was commenced. And all bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual, notwithstanding said removal. And all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed. Rev. Stats. § 646; see sec. 16 of this boob. § 5. Dismissal, when.— That if, in any suit com- menced in a circuit court, or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after KEMOVAL ACT OF 1875. 47 snch suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy i^roperly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or coUusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no farther therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just. But the order of said circuit court dismissing or re- manding said cause to the State court shall be reviewable by the supreme court on writ of error or appeal, as the case may be. Kev. Stats. §§ 690-701; see sec. 17 of this book. § 6. Proceedings.— That the circuit court of the United States shall, in all suits removed under the pro- visions of this act, proceed therein as if the suit had been originally commenced in said circuit court, and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said State court prior to its removal. See sec. 18 of this book. § 7. Time to file application— misfeasance of clerk — certiorari. — That in all causes removable under this act, if the term of the circuit court to which the same is re- movable, then next to be holden, shall commence within twenty days after filing the petition and bond in the State court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said circuit court and enter appearance therein; and if done within said twenty days, such filing and appearance shall be taken to satisfy the said bond in that behalf. That if the clerk of the State court in which any such 48 REMOVAIi ACT OF 1875, cause shall be pending, shall refuse to any one or more of the parties or persons applying to remove the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall be deemed guilty of a misdemeanor, and, on conviction thereof in the circuit court of the United States to which said action or pro- ceeding was removed, shall be punished by imprisonment not more than one year, or by line not exceeding 81,000, or both, in the discretion of the court. And the circuit court to which any cause shall be re- movable under this act shall have power to issue a writ of certiorari to said State court commanding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the pro- visions of this act for the removal of the same, and en- force said writ according to law. And if it shall be impossible for the parties or persons removing any cause under this act, or complying with its provisions for the removal thereof, to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the circuit court shall make an order requiring the prosecutor in any such action or proceeding to en- force forfeiture or recover penalty as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may deter- mine; and in default thereof the court shall dismiss the said action or proceeding. But if said order shall be complied with, then said circuit court shall require the other party to plead, and said action or proceeding shall proceed to final judgment; and the said circuit court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be discharged so far as it requires a copy of the record to be filed as aforesaid. Eev. Stats. § 645; see sec. U of this book. KEMOVAL ACT OF 1875. 49 § 8. Liens— appearance of parties.— That when in any suit, commenced in any circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the dis- trict where such suit is brought, one or more of the de- fendants therein shall not be an inhabitant of, or found within, tlie said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be desig- nated, which order shall be served on such absent defend- ant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be. Or where such personal service ui3on such absent de- fendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. And in case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and ad- judication of such suit in the same manner as if such absent defendant had been served with process within the said district. But said adjudication shall, as regards said absent de- fendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, with- in such district. And when a part of the said real and iiersonal property against which such proceeding shall be taken shall be Desty Removal.— 5. 50 REMOVAL ACT OF 1875. within another district, but within the same State, said suit may be brought in either district in said State. Provided, however, that any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said circuit court, and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein on j)ayment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law. Eev. Stats. §§ 740, 742; see sec. 2 of this book. § 9. Revival on death of party.— That whenever either party to a final judgment or decree which has been or shall be rendered in any circuit court has died or shall die before the time allowed for taking an appeal or bring- ing a writ of error has exj^ired, it shall not be necessary to revive the suit by any formal proceedings aforesaid. The representative of such deceased party may file in the office of the clerk of such circuit court a duly certified copy of his appointment, and thereux)on may enter an appeal or bring writ of error as the party he represents might have done. If the party in whose favor such judgment or decree has rendered has died before appeal taken or writ of error brought, notice to his representatives shall be given from the supreme court, as provided in case of the death of a party after appeal taken or writ of error brought. Kev. Stats. §§ 955, 956; see sec. 3 of this book. § 10. Repeal.— That all acts and parts of acts in conflict with the provisions of this act are hereby repealed. March 3, 1875. JCTEISDICTION. § 1. Jurisdiction— original, concurrent, appellate. — That the circuit courts of the United States shall have original cognizance, concurrent loith the courts of the sever- al States, of all suits of a civil nature at common laio or in equity, lohere the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or lavjs of the United States, or treaties made or ivhich shall be made under their authority, or in lohich the United States are plaintiffs or petitioners, or in ivhich there shall be a controversy betiveen citizens of different States, or a controversy betiveen citizens of the same State claiming lands under grants of different States, or a contro- versy between citizens of a State and foreign states, citizens, or subjects. And shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent juris- diction loith the district courts of the crimes and offenses cognizable therein. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against any person by any original process or pjroceed- ing in any other district than that whereof he is an inhab- itant, or in which he shall be found at the time of serving such process or commencing such proceedings, except as hereinafter provided. Xor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless § 1 a JURISDICTION. 52 a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange. And the circuit courts shall also have appellate jurisdic- tion from the district courts under the regulations and re- strictions prescribed by law. Act of March 3, 187.5, § 1 (Supp. Rev. Stats. 173). § 1 a. Judicial power — Constitutional provis- ions. — Judicial power means that power with which courts are clothed for the purpose of the trial and deter- mination of causes ; i the j^ower conferred to render a judgment or decree. '^ The jurisdiction of the circuit courts depends exclusively on the Constitution and laws of the United States; 3 and it cannot be affected by State legislation. -t Its jurisdiction is limited; but the presump- tion is, that a cause is within the jurisdiction till the contrary is shown. ^ The judicial power is unavoidably in some cases exclusive of all State authority, and in others may be made so at the election of the legislative body. 6 " Shall extend " is used in article iii, section 2 of the Federal Constitution, in an imperative sense, and imports an absolute grant of power.' Their jurisdic- tion depends exclusively on the Constitution, and stat- utes passed in pursuance thereof. ^ The Constitution defines the limits of the judicial power, but Con- gress prescribes how much of it is to be exercised by the Federal courts.^ They are of limited jurisdiction, and can exercise no jurisdiction but what is expressly conferred, or is conferred by necessary implication ; lo as the power to punish for contemi^ts.i^ Although of inferior jurisdiction in the language of the Constitution, their pro- ceedings are entitled to liberal presumptions in favor of their regularity, i- An inferior court, in the sense of the Constitution, is one whose judgment may be reversed on appeal. 1-3 Federal courts will decline jurisdiction, as a 53 JURISDICTION. § 1 b matter of comity, wliere the State court has custody of the property and the subject-matter of the action, but not after trial on the merits.!'^ 1 U. S. V. Arredondo, 6 Peters, 691 ; Ex parte Gist, 26 Ala. 156; Ban- ton V. "Wilson, 4 Tex. 400. 2 Khode Island v. Massachusetts, 12 Peters, 657. 3 Gary I'. Curtis. 3 How. 236; Sheldon r. Sill, 8 How. 441 ; Scott v. San- ford, 19 How. 393 ; Hubbard v. Northern R. R. Co. 3 Blatchf . 84 ; Bennett V. Bennett. Deady. 300; Wisconsin v. Duluth, 2 Dill, 406; Karahoo v. Adams, 1 Dill. 344; Harrisons. Hadley,2Dill.229; Sinithv.Allyn,! Paine, 486; Livingstonr.Vanlngen, Paine, 45; U. S. v. Terrel, Hemp. 411,422; U. S. V. Alberty, Hemp. 444 ; White v. Fenner, 1 Mason, 520 ; Ex parte Cab- rera, 1 Wash. C. C. 232; Livingston v. Jefferson, 1 Brock. 203. 4 Parsons v. Lyman, 5 Biatchf. 170; Livingston v. Jefferson, 1 Brock. 203. 5 Turner v. Bank, 4 Dall. 8; Livingston r. Van Ingen, 1 Paine, 45. 6 Martin v. Hunter, 1 Wheat. 304; The Moses Taylor, 4 Wall. 411. 7 Martin v. Hunter, 1 Wheat. 304. 8 Mossman v. Higginson, 4 Dall. 12; Hodgson v. Bowerbank, 5 Cranch, 303; Bank v.Deveaux, 5 Cranch,61; Amer. Ins. Co. v. Canter, 1 Peters, 511; Livingston v. Jefferson, 1 Brock. 203; U. S. v. Drennon, Hemp. 320; U. S. v. Alberty, Hemp. 444. 9 Turner v. Bank of N. A. 4 Dall. 10; Mclntyre v. Wood, 7 Cranch, 504; Kendall v. U. S. 12 Peters, 616; Cary v. Curtis, 3 How. 245; Clarke V. JonesviUe, 4 Am. Law Reg. 593. 10 Turner v. Bank, 4 Dall. 9; U. S. v. Ta-wan-ga-ca, Hemp. 304. 11 U. S. V. Hudson, 7 Cranch, 32; Matt, of Meador, 1 Abb. U. S. 324. 12 Turner v. Bank, 4 Dall. 8; Griswold v. Sedgwick, 1 Wend. 126; Byers v. Fowler, 12 Ark. 218; Erwin v. Lowry, 7 How. 172. 13 Nugent V. State, 18 Ala. 52. 14 Gilman v. Perkins, 13 The Reporter, 257. § 1 b. Power of Congress.— United States courts can exercise only that jurisdiction which is conferred on them by Congress,i or by treaty. 2 Congress may say how much and what shall vest in one inferior court, and what in another.^ and must define their respective juris- dictjons.4 How jurisdiction shall be acquired, whether original or appellate, and the mode of procedure, are left to the wisdom of the legislature.^ So Congress may confer original jurisdiction in any case to which appellate jurisdiction extends, ^ and may lawfully provide for suits at the option of the i^arties on all controversies between citizens of different States." In the first three class- es of cases mentioned in this section — i. e., (1) cases § 1 C JURISDICTION. 54 arising under the Constitution or law of the United States, or treaties made under its authority; (2) all eases affecting foreign ambassadors, ministers, or consuls; (3) all cases of admiralty and maritime jurisdiction — the jurisdiction is exclusive; s as questions arising on treaties, when not political questions,^ or suits arising under the laws of the United States, i^ While in the latter class, as to con- troversies, it may qualify the jurisdiction, whether origi- nal or api3ellate.ii It may invest the Federal courts with the power to issue writs. i^ Federal courts can issue writs onlj^ when necessary in and of their jurisdiction, and in a case pending.i3 1 Ex parte Cabrera, 1 Wash. C. C. 235; Magill v. Parsons, 4 Conn. 317. 2 The British Prisoners, 1 Wood. & M. 66; U. S. r. New Bedford Bridge, Wood. in an action of eject- ment, the value of the interest claimed; s in an action of covenant on a bond ; & in an action sounding in damages ; i*' in an action for a penalty; ^i or on penal bonds,!"^ in an action to recover back taxes illegally exacted ;13 but the amount due to each of several bringing suit must exceed five hundred dollars, i^ Where the nature of the action does not require the value of the thing demanded to be stated in the declaration, evidence may be given of the value of the matter in dispute at the trial. is If there are 57 JURISDICTION. § 1 e separate counts upon separate causes of action, the amount claimed is the aggregate of the sums claimed. i6 A bill to abate a nuisance may be maintained, although the damage sustained does not amount to live hundred dollars, as the value of the object to be removed governs. i'^ 1 Walker v. United States, 4 Wall. 163: West. U. Tel. Co. v. Levi, 47 Ind. 552. See Lee v. Watson, 1 WaU. 337. 2 Culver v. Crawford, 4 Dill. 239. 3 Gordon v. Lonsrest, 16 Peters, 97; Kanouse v. Martin, 15 How. 198; Muns V. Dupont, 2 Wasli. C. C. 463; Ladd v. Tudor, 3 Wood. & M. 325. 4 Culver v. Crawford, 4 Dill. 239. 5 Bennett v. Butterworth, 8 How. 124. 6 Culver v. Crawford, 4 Dill. 239. 7 Sherman?;. Clark, 3 McLean, 91. 8 Hartshorn v. Wright, Peters C. C. 64; Crawford v. Bumham, 4 Am. L. T. 228; West. U. Tel. Co. v. Levi, 47 Ind. 552; Sherman r. Clark, 3 McLean, 91; Lanning v. Dolph, 4 Wash. C. C.624; Green v. Liter, 8 Cranch, 229. 9 Victor S. M. Co. v. Mingos, 25 Pitts. L. J. 125. 10 Hulsekamp v. Teel, 2 Dall. 358; Murphy v. Howard, Hemp, 205. 11 Martin v. Taylor, 1 Wash. C. C. 1. 12 United States v. McDowell, 4 Cranch, 316; Postmaster-Gen. v. Cross, 4 Wash. C. C. 326. 13 King V. Wilson, 1 DUl. 555. 14 King V. Wilson, 1 Dill. 555; Woodman v. Latimer, 2 Fed. Rep. 842; Adams v. Board, McCahon, 2?5. 15 Ex parte Bradstreet, 7 Peters, 634. 16 Anderson v. Gerding, 3 Wood, 487; Judson v. Macon Co. 2 Dill. 213. 17 Mississippi & Mo. R. K. Co. v. Ward, 2 Black, 485. § 1 e. Suits arising under the Constitution.— For the judicial power to extend to a violation of the Consti- tution, it must be a case in law or in equity.! jt is the final arbiter of constitutional construction, and may re- ceive from the legislature the power to construe every constitutional law.2 The act must be clearly subversive of the Constitution 3— a clear violation ^ — and the objection must not be doubtf ul.s It extends over statutes, whether passed by a State legislature or by Congress, which are claimed to be in contravention of the Constitution of the United States.^ So the circuit court has jurisdiction of a suit arising under a State law violating the obligations of § 1 f JURISDICTION . 58 a contract; " but not to statutes claimed to be void under a State Constitution. s The circuit court lias jurisdiction of a suit brought to restrain the construction of a bridge over the navigable waters of the United States, the erec- tion of which is authorized by an act of Congress. ^ See post, §10/. 1 Cohens v. Virgiaia, 6 Wheat. 264. See Railroad Co. v. Mississippi, 102 U. S. 135. 2 Vanhorne v. Dorrance, 2 Dall. 304; Martiu v. Hunter, 1 Wheat. 304; Coliens v. Virginia, 6 Wheat. 264; Ableman v. Booth, 21 How. 506; S. C. 3 Wis. 1 ; Mayor v. Cooper, 6 Wall. 247. 3 Turner v. Athans, 6 Neb. 54. 4 Central C. R. R. Co. v. Twenty-third St. 11. R. Co. 54 How. Pr. 168; Bennington v. Park, 50 Vt. 178. 5 XT. S. V. Jackson, 3 Sawy. 62; People v. Brinkerhoff, 68 N. Y. 259. 6 Calder v. Bull, 3 Dall. 399; Marbury v. Madison, 1 Crauch, 137; Dartmouth Coll. v. Woodward, 4 Wheat. 625. 7 State Lottery Co. v. Fitzpatrick, 3 Wood, 222. 8 Calder v. Bull, 3 Dall. 399. 9 Miller r. New York, 13 Blatchf. 479. § If. Suits under United States statutes and treaties. — Congress may grant exclusive jurisdiction to United States courts over suits arising under tlie laws of the United States. ^ Their jurisdiction covers every legis- lative act of Congress,- so they are the instruments provided in administering security to an officer acting in the discharge of his duties ;3 as seeking protection under a law is a case arising under that law.^ If the riglit of property in the subject-matter is given or created by an act of Congress, it is within the judicial power of the United States, o A suit arises out of a law of the United States when the controversy turns upon the proper con- struction or application of such law; 6 hut it must be showu how the action arises under the law;" and it is not sufficient that the construction of the law is incident- ally brought in question; s so the circuit court has jurisdiction of a suit involving the construction of land patents granted by the United States; ^ or of actions under the bankrupt law;io or under the iiatent laws;ii or where a party claims title under the revenue laws, 59 JURISDICTION. § 1 g '.Then lie shows that his title in that respect is disputed; 12 as the right of a party must have its origin in the law; 13 so it has jurisdiction on a supersedeas bond given upon suing out a writ of error to the supreme court, as this arises under a law of the United States ; 1^ but a suit based on false representations arises out of a fraud, and not out of an act of Congress. is A State may file a bill to restrain a collector from levying, under the internal revenue laws, on property owned by the State. 16 if the action arises under a treaty, the matter in dispute must exceed five hundred dollars. i' See post, % 10/. 1 ¥oxv. Ohio, 5 How. 410; Voorhees v. Frisbie, 8 Bank. Keg. 154. See N. O. Railroad Co. v. Mississippi, 102 U. S. 140; Cohens v. Virginia, eWhart. 264; Osborn v. Bank, 9 Wheat. 738; Mayor t;. Cooper, 6 WaU. 247; Gold W. & W. Co. v. Keyes, 96 U. S. 199; Tennessee v. Davis, 100 U. S. 257. See Railroad Co. v. Mississippi, 102 U. S. 135. 2 Ableman v. Booth, 21 How, 506; Mayor v. Cooper, 6 "Wall. 247. 3 Hodgson v. Milward, 3 Grant, 412. 4 Hodgson V. Milward, 3 Grant, 412; Kulp v. Rickets, 3 Grant, 420. 5 Bank v. Roberts, 4 Conn. 323. 6 Hatch V. WaUamet Iron B. Co. 11 The Reporter, 630. 7 Dowell V. Griswold, 5 Sawy. 39. 8 Dowell V. Griswold, 5 Sawy. 39. 9 Hills V. Hompton, 4 Sawy. 195. 10 Tifft V. Iron Clad Manuf. Co. 16 Blatchf. 48. 11 Celluloid Manuf. Co. v. Goodyear D. V. Co. 13 Blatchf. 375. 12 Ex parte Smith, 94 U. S. 455. 13 Dowell V. Griswold, 5 Sawy. 39. 14 Miller v. New York, 13 Blatchf. 469. 15 Seymour v. Phillips, 7 Biss. 460. 16 Merserole v. U. P. R. R. Co. 6 Blatchf. 356. 17 Georgia v. Atkins, 1 Abb. U. S. 22; S. C. 35 Ga. 315. 18 Baker v. Portland, 5 Sawy. 566. § 1 g. Suits arising out of the patent laws.— The circuit courts have plenary jurisdiction over all actions, suits, or controversies, both in law and in equity, arising under the patent laws; 1 and an action which raises the question of infringement is an action arising under the law, and it may involve the construction of a contract as well as the patent.^ But if the contract is not § 1 S JURISDICTION. 60 provided for and regulated by an act of Congress, the court lias no jurisdiction,^ nor will jurisdiction extend to a controversy arising under a contract concerning a pat- ent subsequently- to be obtained.^ If the iiarties are citizens of different States, and the amount claimed ex- ceeds five hundred dollars, the court has jurisdiction over a claim arising on a contract ; ^ but if the parties are citizens of the same State, it cannot entertain a bill to compel an assignment of the patent as agreed for; 6 and the mere fact that the bill prays for an accounting will not confer jurisdiction." The court will not entertain a suit to have the interest of a patentee sold to satisfy a judgment issued from a State court.s AYhere a party's rights arise under a contract, he cannot maintain a bill in equity against patentee and purchaser who purchased in violation of the license, without a regard to the citizen- ship of the parties.^ If an infringement is proved, the court will take cognizance of matters incidental, as where defendant has forfeited his right under a license.i" If the parties are citizens of the same State, the court has no jurisdiction over a bill to obtain the cancellation of a license on account of the invalidity of the patent.^ If the circuit court in a patent case has jurisdiction over the subject-matter and the parties, its decree cannot be collaterally questioned.!^ The circuit court has no juris- diction to vacate a patent on the ground of false sugges- tion, or that the government had no right to grant it;i3 nor can a junior patentee maintain an action against a prior patentee to obtain an adjudication that his patent does not conflict with a prior patent.i^ xhe jurisdiction at law and in equity is concurrent, and a party may select his forum, though he seeks the recovery of money only; i^ and if compelled to go into a court of equity to obtain a discovery, the court, after the discovery, will proceed on the merits. ^6 A bill for a discovery cannot be maintained against a corporation. i7 The jurisdiction conferred in equity exists independently of State laws, 61 JURISDICTION. § 1 g and is similar to the equity jurisdiction in England; is and want of equity does not imply a defect of jurisdic- tion. It is only when the court is without power to pass upon the subject-matter, or to grant the relief sought, that its jurisdiction may be questioned.i^ A court of equity has jurisdiction to enjoin the use of a patented in- vention, and for an account of profits, although an action at law may be maintained to recover damageSj^i) and a suit for an account of profit is properly brought in equity.2i Where the complainant seeks an account and discovery, the court may award damages for the breach of a contract.-^ Although the patent has expired, and an injunction cannot issue, yet an account can be ordered and other relief granted.-^ A suit for an accounting can- not be maintained unless there are actual profits result- ing from the infringement susceptible of estimation.24 If defendant dies pending suit, complainant may revive the suit against his personal representatives to obtain au account of profits. -5 1 Nevius V. Johnson. 3BlatcM. 80; Perry v. Corning, 6 Blatchf. 134; Gordon v. Anthony, 16 Off. Gaz. 1135. But see contra, Sayles v. Richmond F. & P. K. K. Co. 3 Hughes, 172. 2 Littlefield v. Perrj-, 21 Wall. 205 ; Magic Ruffle Co. v. Elm City Co. 13 Blatchf. 151. 3 Wilson V. Sandford, 10 How. 99; Hartell v. Pilghman, 99 TJ. S. 547; Goodyear v. Day, 1 Blatchf. 565; Goodyear v. Union Rub. Co. 4 Blatchf. 63; Magic Ruffle Co. v. Elm City Co. 13 Blatchf. 151; Blanch- ard V. Sprague, 1 Cliff. 288. 4 Brooks V. Stolley, 3 McLean, 523; Nesmith v. Calvert, 1 Wood. & M.34. 5 Bloomer t- . Gilpin, 4 Fish. Pat. Cas. 50. 6 Perry v. Littlefield, 2 Fed. Rep. 4&i; Burrr. Gregory, 2 Paine, 426. 7 Burr v. Gregory, 2 Paine, 426. 8 Ryan v. Lee, 10 Fed. Rep. 917. 9 Hill V. Whitcomb, 1 Holmes, 317. 10 Brooks V. StoUey, 3 McLean, 523; Bloomer v. Gilpin, 4 Fish. Pat. Cas. 50. 11 Merserole v. Union Paper C. Co. 6 Blatchf. 356. 12 Allen v. Blunt, 1 Blatchf. 480. 13 Att.-Gen. v. Rumford Wks. 9 Off. Gaz. 1062. 14 Celluloid Manuf . Co. v. Goodyear D. V. Co. 13 Blatchf. 375 Desty Removal.— 6. §§ 1 h-i JURISDICTION. 62 15 Perry v. Corning, 6 Blatchf. 134: Anthony v. Carroll, 9 Off. Gaz. 199. Contra : Sanders v. Logan, 2 Fish. Pat. Cas. 167. 16 Magic Ruffle Co. v. Elm City Co. 14 Blatchf. 109, 17 Vaughan v. Cent. P. K. Pt. Co. 14 Pacif. L. Rep. 274. 18 Allen v. Blunt, 1 Blatchf. 480. 19 McMillin v. Barclay, 5 Fish. Pat. Cas. 189. 20 McMillin v. Barclay, 5 Fish. Pat. Cas. 189, 21 Dibble v. Augur, 7 Blatchf. 86. 22 Magic Ruffle Co. v. Elm City Co. 13 Blatchf. 151, 23 Imlav V. Railroad Co. 4 Blatclif. 227; Wood Paper Co. r. Glen's Falls Co. 8 Blatchf. 513; McComb v. Beard, 10 Blatchf. 350; Blank v. Manuf. Co. 3 Wall. Jr. 196; Vaughan v. Cent. P. R. R. Co. 4 Sawy. 280; Howes V. Nute, 4 Fish. Pat. Cas. 263; Smith v. Baiter, 31 Leg. Int. 126; Jordan v. Wallace, 5 Fish. Pat. Cas. 185. 24 Vaughan v. Cent. Pac. R. R. Co. 14 Pacif. L. Rep. 274. 25 Smith v. Balicr. 31 Leg. Int. 126. § Ih. Suits under copyright and trade-mark la"ws. — A court of equity lias jurisdiction over a suit for an infringement of a copyright, i and of an action for the infringement of a trade-mark, without regard to the amount in controversy or the citizenship of the parties.^ Both the title and the infringement may be adjudicated without having been first determined by law; 3 but it has no jurisdiction in equity to protect the rights of an author at common law, where the parties are citizens of the same State; 4 nor if the controversy arises out of a contract, and not under the statute; ^ nor to enforce penalties and forfeitures incurred under the statute. ^ 1 Pierpont v. Fowle, 2 Wood. & M. 23. 2 Duwell V. Bohmer, 10 Ch. L. N. 356. 3 Farmer v. Calvert Pub. Co. 5 Ch. L. N. 1, 4 Boucicault v. Hart, 13 Blatchf. 47. 5 Little V. Hall, 18 How. 165; Polte v. Derby, 5 McLean, 328, 6 Stevens v. Gladding, 17 How. 447; Stevens v. Cady, 2 Curt. 200. § 1 i. "Where the government is a party. — The judicial power extends to controversies in which the United States is a party,i so the United States may in- stitute a proceeding at common law, to condemn lands for the use of the government ; 2 or to condemn property used in aid of insurrection .3 It may file a bill in equity ,3 JURISDICTION. § 1 j to set aside a fraudulent conveyance; or bring an action on a contract, unless a different mode is prescribed by- law; 4 or on a bond given to secure the landing of a cargo under the embargo laws ; ^ or for the breach of a bond in an action brought by a postmaster.6 The jurisdiction reaches to controversies where the State is a party;" but only where it is a party to the record; 8 or when the gov- ernor is sued in his official capacity.^ The jurisdiction of the Federal courts depends on two points : first, as arising from the subject-matter ; second, as dependent on the character of the parties ; i" and when it depends on the character of the parties and not of the subject-matter, Congress cannot vest jurisdiction in the Federal courts. n The giving of the supreme court original jurisdiction in cases where a State is a party does not withhold from Congress the power to vest in circuit courts concurrent jurisdiction in such cases.i^ 1 Mississippi v. Johnson, 4 Wall. 498; Georgia v. Stanton, 6 Wall. 50. 2 U. S. V. Smith, 1 Hughes, 347. 3 Union Ins. Co. ?;. U. S. 6 Wall. 759. 4 Dugan V. U. S. 3 Wheat. 172; U. S. v. Barker, 1 Paine, 156. 5 Durousseau v. U. S. 6 Cranch, 307. 6 P. M. Genl. v. Early, 12 Wheat. 136. 7 N. y. V. Conn. 4 Dall. 1 ; N. J. v. N. Y. 5 Peters, 290; Ga. v. Brails- ford, 2 Dall. 402; Oswald t).N.Y. 2 Dall. 415; Chisholmi;. Ga. 2Dall. 419; Grayson y. Va. 3Dali. 320; Ulass.i;. R. I. 12 Peters, 755; Ga. v. Madrazo. 1 Peters, 122; Luther i;. Borden, 7 How. 55; Mowery t;. Indiana & C.R. R. Co. 4 Biss. 80. 8 Osborn f . Bank, 9 Wheat. 738; New York v. Connecticut, 4 Dall 3; Fowler v. Lindsay, 3 Dall. 411; U. S. v. Peters, 5 Cranch. 115. 9 Kentucky v. Ohio, 24 How. 97; Georgia v. Madrazo, 1 Peters, 116. 10 Celluloid Qo.v. Goodvear, 13 Blatchf. 375; citing Cohens ?;. Vir- ginia, 6 Wheat. 264; Littlefitld v. Perry, 21 Wall. 205. 11 .'^tate V. Trust of University, 5 Nat. Bk. Reg. 466; Wisconsin v. Duluth, 2 Dill. 406; explained in State v. Lewis, 12 Fed. Rep. 1. 12 State V. Lewis, 12 Fed. Rep. 1, citing Pennsylvania v. Wheeling Br. Co. 13 How. 520- § 1 j. Controversies between citizens of differ- ent States. — The jurisdiction of the circuit court ex- tends to controversies between citizens of different States; i and the situation of the parties, and their char- § 1 i JURISDICTION. 64 acters, determine the jurisdiction; 2 but it has no jurisdic- tion of a swit between i)arties of the same State ;3 and if neither party is a citizen of the State where suit is brought it has no jurisdiction; •* but a citizen of a State where suit is brought may sue a citizen of another State.^ A party who resides in a State with his family, and carries on business there, is deemed a citizen of that State; ^ but if his residence is only temporary, and for a special purpose with the animo revertendi, he does not thereby become a citizenJ To have the right to sue, a party must be a citi- zen of some State; so a citizen of a Territory cannot insti- tute an action in the circuit court, although he be joined with the citizen of a State; s so a citizen of the District of Columbia cannot maintain an action in the circuit court.^ Prior to the Act of March 3rd, 1875, the circuit court had jurisdiction only when the suit was between a citizen of the State and a citizen of another State; and if there were several plaintiffs and several defendants, each one of each class must have possessed the requisite character as to citizenship. 10 So, under prior statutes, two citizens of different States could not have joined as plaintiffs in a suit in one State against a citizen of a third State; n but it was not necessary that all the defendants should be citizens of the same State, iDrovided none of them were citizens of the same State with the plaintiff; i^ yet the joinder of a defendant not served, and who does not ap- pear, who is a citizen of the same State as i^laintiff, will not defeat the jurisdiction ; i3 but if defendant was served with process, and was not a mere nominal party, it de- feated the jurisdiction.!^ As to citizenship, the plaintiff being assignee of one who was a citizen of the same State as defendant cannot sue in the United States courts. i^ See post, § IQ(/. 1 Ohio & M. E. R. Co. r. Wlieeler, 1 Black, 286. Biit see Hope Ins. Co. V. Boardman, n Crancli, 57. No matter of what State the plaintiff is a citizen : Brooks v. Bailey, 9 Fed. Kep. 438. 2 Conolly v. Taylor, 2 Peters, 556. 3 Van Antwerp r. Hubbard, 8 Blatchf. 285; Livingston v. Van Ingen, 1 Paine, 45; S. C. (i Johns. 507; Merserole v. U. P. C. Co. 6 Blatchf. 356; Teal V. Walker, 10 Ch. L. N. 131. 65 JTEISDICTION. § 1 Is 4 Conolly v. Taylor, 2 Peters, 556; Shute v. Davis. Peters C. C. 431 ; Goodyear v. Day, 1 Blatclif. 565; Kelly v. Harding, 5 BlatcM. 502. 5 Harrison v. Rowan, Peters C. C. 489; Kitchen v. Strawbridge, 4 Wash. C. C. 84. 6 Knox V. Greenleaf, 4 Dall. 360; Byrne v. Holt, 2 Wash. C. C. 282. 7 Prentiss V. Barton, 1 Brock. 389; Cooper r. Galbraith, 3 Wash. C. C. 546; Gardner t;. Sharp, 4 Wash. C.C. 609; Keedt;. Bertrand, 4 Wash. C. C. 514. 8 New Orleans v. Winter, 1 Wheat. 91. 9 Hepburn v. Ellzey, 2 Cranch, 445; New Orleans r. Winter, 1 Wheat. 92: Gassiest. Ballon, G Peters, 761; Scott v. Jones, 5 How. 343; Barney v. Baltimore, 6 Wall. 280; Texas v. White. 7 Wall. 700; Railroad Co. V. Harris, 12 Wall. 65; Westcott v. Fairfield, Peters C. C. 45; Harts- horne v. Wright, Peters C. C. 64. 10 Strawbridge v. Curtis, 3 Cranch, 267; Coal Co. v. Blatchford, 11 WaU. 172. 11 Moffat V. Solev, 2 Paine, 103. See Bank v. Slocomb, 14 Peters, 60; Irvine v. Lowry, 14 Peters, 293; Taylor v. Cook, 2 McLean, 516; Clear- water v. Meredith, 21 How. 489. 12 Railroad Co. v. Letson, 2 How. 554. 13 Doremus v. Bennet, 4 McLean, 224. 14 Ketchum v. Farmers' etc. Co. 4 McLean. 1 ; Coal Co. v. Blatchford, 11 WaU. 172; Lew. 3Iach. Co. Case, 18 Wall. 553. 15 Leutze v. Bulterfield, 1 Abb. N. C. 367, reversing S. P. ante, 18. § 1 k. Jurisdiction over corporations.— Citizen- ship as to jurisdiction means only residence ;i so the circuit court may have jurisdiction over a controversy on account of residence, independently of the subject- matter; 2 and for the purposes of jurisdiction, corporations are deemed citizens of the State which created them; 3 and this, irrespective of the individual citizenship of its members; 4 so a corporation may sue and be sued in the circuit court. 5 It may institute an action in another State, although associated with a corporation of that State. 6 If a corporation is created by the laws of two States, it is deemed a separate body in each State, and cannot sue a citizen of either State in the circuit court."^ But a citizen of one of the States may sue it in the other State ; s so where the legislature of a State has confirmed the charter of a corporation, a citizen of that State may maintain an action against the corporation in the circuit court. 9 Where railroad corporations, created under the laws of different States, operating through such States la § 1 k JURISDICTION 66 one connected line, tLe consolidated corporation is to be considered a citizen of either State ; i" "but a corporation which merely leases a road in another State to operate therein does not thereby become a citizen of such State ;ii and the mere appointment of an agent on whom process may be served will not make a corporation a citizen.i^ A national bank of another State may sue in the Federal courts, although defendants are citizens of the same State as that in which the bank is established. i3 A State legis- lature has the right to exclude a foreign corporation ; i-* but it cannot deprive it of its right to sue in a Federal court by exacting a stipulation not to remove a cause from the State court. J^ The rule as to citizenship applies to public municipal corporations; ^^ so a municipal corx)ora- tion may sue and be sued in the circuit court; i"^ but a State cannot maintain an action in the circuit court. ^^ See post, % 10 h. 1 Gassiest'. Ballou. 6 Peters, 761; Shelton v. Tifflin, 6 How. 162; Cooper V. Galbraith, 3 Wash. C. c. .i46; Butler v. Farusworth, 4 Wash. CO. 101. 2 Nesmith v. Calvert, 1 Wood. & M. 34. 3 Bank of U. S. v. Deveaux. 5 Cranch, 61 ; Hope Ins. Co. v. Board- man, 5 Cranch,. 57; U. s. r.P]auters'ii'k.9Wheat.410; Bankr. Slocomb, 14 Peters, 60; Louisville etc. K. 11. Co. v. Letson, 2 How. 314; Wheedon v. Camden & A. R. R. Co. 4 Am. Law Reg. 296; Marshall v. Bait. & O. R. K. Co. 16 How. 314; Pvundlet-. Del. & li. Cau. Co. 14 How. 80; Covington D. Co. V. Shepherd. 20 How. 227 ; Lafayette Ins. Co. v. French, 18 How. 404; Railway Co. r. Whitton, 13 Wall. 270; Ohio . Planters' Bank, 13 How. Is3; Campbell v. Jordan, Hemp. 534; Den- nison v. Lamed, 6 McLean, 4H6; Codwise v. Gleason, 3 Day, 3. 24 Wilson v. Fisher, Bald. 133; MiUedollar v. BeU, 2 Wall. Jr. 334. 25 Greggt". Weston, 7 Biss. 360. 26 Seckel v. Backhaus, 7 Biss. 354. 27 Mersman v. Werger, 3 Fed. Rep. 378. 28 Sheldon v. Sill. 8 How. 441; Hill r. Winne, 1 Biss, 275. Contra: Dundas v. Bowler, 3 McLean, 204. Desty Removal.— 7. §§1 q-r JURISDICTION. 74 29 Porter v. Janesville, 3 Fed. Ret). 617; Halsey v. TownsMp, 3 Fed. Kep. 364. 30 White v. Vermont & M. Pi.. R. Co. 21 How. 575; Lexington v. But- ler, 14 Wall. 282; Bradley v. Williams, 3 Hughes, 26. 31 Pettit V. Hope, 2 Fed. Rep. 623. 32 Thomson v. Lee Co. 3 Wall. 327; McCoy v. Washington, 3 Phila. 290; Pettit r. Hope, 2 Fed. Rep. 623. 33 Cooper v. Thompson, 13 Blatchf. 434. See Clark v. Janesville, 1 Biss. 9s. 34 Wilkinson v. Wilkinson, 2 Curt. 582. 35 Dexter v. Smith, 2 Mason, 303. 36 Bean v. Smith, 2 Mason, 252. 37 Ober v. Gallagher, 93 U. S. 199. 38 Van Bokkelin v. Cook, 5 Sawy. 587. 39 Barney v. Globe Bank, 5 Blatchf. 107. 40 Tm-ner v. Bank, 4 Dall. 8; Bradley v. Ehines, 8 Wall. 393. 41 Von Bokkelin v. Cook, 5 Sawy. 587. § 1 q. Territorial limit of jurisdiction.— A court created within aud for a particular territory is bounded in the exercise of its power by the limits of such terri- tory, i "Whatever may be the extent of the jurisdiction over the subject-matter in a suit, in respect to jurisdiction over persons and property, it can only be exercised within the limits of the judicial district. -^ The circuit court has jurisdiction only over the inhabitants of the district, or l^ersons found therein, and served with process.^ So where a citizen of Kew Hampshire aud a citizen of Geor- gia sued a citizen of Massachusetts in New York, where he was arrested, the court had no jurisdiction ;4 but where there are two districts in a State, a citizen of such State is liable to suit in either district, if served with process.'^ 1 Picquet v. Swan, 5 Mason, 35 ; Ex parte Graham, 3 Wash. C. C. 456. 2 Tolaud V. Sprague, 12 Peters, 300; Picquet v. Swan, 5 Mason, 35. 3 Pollard v. Dwight, 4 Cranch, 424; Anderson v. Shaffer, 10 Fed. Rep. 266. 4 Moffat V. Soley, 2 Paine, 103. 5 McIVIicken ?j. Webb, 11 Peters, 25; Vore v. Fowler, 2 Bond, 294; Locomotive Co. v. Erie Ry. Co. 10 Blatchf. 292. § Ir. Concurrent jurisdiction.— In a transitory action, a right arising under or a liability imi)osed by either the common law or a State statute may be asserted :.j juEisDicTio>'. § 1 r and enforced in the Federal court, i \Yliere the State stat- ute gives a right, the same may be asserted or enforced in the Federal courts whenever the citizenship of the parties or the nature of the subject will permit.^ The jurisdiction of a United States court is not affected by a subsequent action brought in the State court.^ So where two suits are brought on different facts, seeking different relief, they may be brought respectively in the State and Fed- eral court.4 The institution of a suit to foreclose a con- tract relating to real estate, in a State court, will not deprive the Federal court of jurisdiction to foreclose liens against parts of the same real estate where the two suits involve a different controversy.^ Where the subject- matter and the parties are before the court in a foreclos- ure for default in some of the installments, it has jurisdiction even though suit is pending in another court on some former installment, and its acts cannot be col- laterally attacked. 6 The circuit court has concurrent jurisdiction with the probate court in actions against a county.' In cases of a dual controversy between differ- ent parties, where the union is in no sense due to the plaintiff, the Federal court, it seems, has no jurisdiction. 8 Where two suits, involving to a great extent the subject- matter, are brought respectively in a State and a Federal court, that court whose jirocess is first served obtains jurisdiction of all questions which legitimately flow out of the subject-matter of the case.9 Between courts of concurrent jurisdiction, the court first acquiring jurisdic- tion will retain it, and will not be interfered with by another court. ^'^ Such court may retain the case until comi^lete relief is afforded. n So where, under a State act, proceedings for a dissolution and administration of the property of a corporation are commenced, they must be finally disposed of in the State tribunal, though a valid and subsisting judgment was obtained in the Federal court.i'^ State and Federal courts cannot lawfully interfere with each other where each is acting within legal limits.i^ § 1 r JURISDICTION. 76 The court which first acquires possession of the fund or subject of the action has exclusive jurisdiction, i* A Fed- eral court will neither interfere with property in the lawful custody of a State court, nor tolerate interference by a State court with property in its custody;!^ nor can a State court reach funds which have been made by an officer of a Federal court on execution ; ^6 "but that prop- erty is being administered on in a State court is no bar to the proceedings in the circuit court. i" The rule of comity towards State courts should not operate to de- prive tlie Federal court of its rightful jurisdiction; is but to take advantage of the rule in favor of a State court of concurrent jurisdiction, the point must be seasonably urged; after trial on the merits it is too late. i^ The rule of comity applies to criminal as well as to civil cases; so where the marshal took a prisoner charged with the same offense from the custody of the State officer, the Federal court sustained the indictment, and remanded the pris- oner to the State authorities.^^ As where, under an act of Congress admitting a State or organizing a Territory, and providing for an Indian reserve ; 21 but the Federal court has no jurisdiction over an indictment of a white man for the murder of a white man on such a reserve within the limits of a State. 22 With respect to land owned by the United States within the limits of a State, over which the State has not parted with its jurisdiction, the United States stands in the relation of a proprietor only, and State officers have the same right to enter thereon and seize personal property for non-payment of taxes, if the right is exercised so as not to interfere with the oper- ations of the General Goverument.23 The circuit courts have not exclusive jurisdiction of suits in liersonam grow- ing out of collisions between vessels navigating the Ohio.-^ So they have onh' concurrent jurisdiction with the district courts in suits in equity by the assignee of a bankrupt in one State against the citizen of another State; 25 and they have power to appoint a guardian for 77 JURISDICTION. § 2 an infant only when property of the infant is involved in a legal proceeding before them, in order to preserve it from destruction or waste.-^ 1 Dennick f. Eailroad Co. 103 U. S. 11. See Bridges v. Sheldon, 7 Fed. Kep. 41. 2 Holmes v. O. & C. R. Co. 5 Fed. Kep. 75. 3 Harris v. Hess, 10 Fed. Rep. 263. 4 Dvvight V. Ceutr. Vt. K. Co. 9 Fed. Rep. 785. 5 Hubbard v. Bellew, 3 Fed. Rep. 447. 6 Marchand v. Frellson, 4 Morr. Trans. 431. 7 Cunningbam r. Co. of Rales, 1 Fed. Rep. 274; Payne r. Hook, 7 Wall. 426. 8 Iowa Home Co. v. Des Moines X. & R. Co. 8 Fed. Rep. 97. 9 Union Mut. L. Ins. Co. v. University of Chicago, 6 Fed. Rep. 443. 10 Davis V. Life Asso. of America, 11 Fed. Rep. 781. 11 Wardr. Todd. 103 U.S. 327. 12 Levi r. Columbia L. Ins. Co. 1 Fed. Rep. 206. 13 Walkeri'. Flint, 7 Fed. Rep. 435. The circuit court has no au- thority to control the proceedings of a State court, or to stay the prosecution therein: Harrison Wire Co. v. Wheeler, 11 Fed. Rep. 206, Coffin V. Haggin, 11 Fed. Rep. 219. 14 Burt V. Keyes, 1 Flippen, 61. 15 Walker v. Flint, 7 Fed. Rep. 435. 16 Alabama Gold L. Ins. Co. v. Girardy, 9 Fed. Rep. 142. 17 Griswold v. Cent. Vt. R. Co. 9 Fed. Rep. 797. 18 Andrews v. Smith, 5 Fed. Rep. 833. 19 Gilman r. Perkins, 7 Fed. Rep. 887. 20 U. S. V. WeUs, 11 Am. L. Reg. 424; Fox v. Ohio. 5 How. 410; Jett'S Case. 18 Gratt. 942 ; U. S. v. Van Fossen, 1 Dill. 411. See U. S. v. French, 1 Gall. 1 ; Ex parte Forbes, 1 Dill. 363. 21 Langford v. Monteith, 102 U. S. 155. 22 U. S. V. McBralney, 3 Morr. Trans. 706. 23 State Tax Laws, 14 Op. Att.-Gen. 199. 24 Schoonmaker v. Gilmore. 102 U. S. 118. 25 Scovill V. Shaw, 4 Cliff. 549; Gindrat v. Dane, 4 Cliff. 260. 26 Insurance Co. v. Bangs, 2 Morr. Trans. 791. § 2. Liens— appearance of parties.— 27ia« when in any suit commenced in any circuit court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said dis- § 2 JURISDICTION. 78 trict, or shall not voluntarily appear thereto, it shall he laiv- ful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain, to be designated, ichich order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in pos- session or charge of said property, if any there be. Or v:here such personal service upon such absent defendant or defendants is not pi-act icable, such order shall he published in such manner as the court may direct, not less than once a week for six consecutive loeeks. And in case such absent defendant shall not appear, plead, answer, or demur ivithin the time so limited, or icithin some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for thecourt to entertain jurisdiction, and proceed to the. hearing and adjudication of such suit in the same manner as if such absent defendant had been served loith process icithin the said district. Bui said adjudication shall, as regards said absent de- fendant or defendants without appjearance, affect only the property v'hich shall have been the S'ubject of the suit and un- der the jurisdiction of the court therein within such dis- trict. And ichen a part of the said real or personal property agoAnst which such proceeding shall be taken shall be icith- in another district, but icithin the same State, said suit may be brought in either district in said State. Provided, however, that any defendant or defendants, not actually personally notified as above pj^ovided, may, at any time within one year after final judgment in any suit men- tioned in this section, enter his appearance in said suit in said circuit court, and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein on jyayment by him or them of such costs as the court shall deem just ; and 79 JURISDICTION. § 2 a thereupon said suit shall he proceeded with to final judr/ment, according to lav). Act of March 3, 1875, § 8 (Supp. Kev. Stats. 173). § 2 a. Jurisdiction, ho-w acquired. — A Federal court acquires jurisdiction over parties only by a service of process, or hy their voluntary appearance, i and only by service of process within the district, ^ and not then if he is but temporarily within tlie district. 3 A person who comes within the district merely for the purpose of attending a trial in a State court cannot be served with process issuing out of a United States court ;"* and if served with summons while attending the trial of a cause in the circuit court as a party, the service will be set aside.5 Where defendant, not an inhabitant of the district, is inveigled or enticed into the district by false representations or deceptive contrivances, service of process on him within the district is illegal. ^ If anon- resident comes into the district for the purpose of plead- ing to an indictment and giving bail, he cannot be sued before he has a reasonable time to depart." If defendant is a non-resident of the district, the record must show with certainty that process was served upon him within the district.8 "SVhere one joint defendant removed the suit, plaintiff is entitled to process against the defendant who has not served with process in the State court at the time the cause was removed.^ If necessary parties are non-residents, their appearance may be secured under the provision of this section, where there is jiroperty within the jurisdiction upon which a lien is claimed. ^"^ A marshal's return of "not found" is not a condition prece- dent to the making of the order contemplated by this section; such order may be made on affidavit alone. ^i The circuit court cannot enforce the lien until it has ju- risdiction of the person. i- This provision is not a denial of jurisdiction, but the grant of a privilege to defendant not to be sued out of the State where he resides unless § 2 b JURISDICTION. 80 served with process, or waives his privilege by voluntary appearance. 13 1 Herndou v. Ridgway, 17 How. 424; Stevens v. Kicliardson 9 Fed. Kep. 191. 2 Allen v. Blunt, 1 Blatchf. 480; Union Sugar Refi. v. Mathiesson, 2 Cliff. 304. 3 Smith V. Tattle, 5 Biss. 159. 4 Juneau Bank r. McSpeden, 5 Biss. 64; Parker v. Hotchkiss, 1 Wall. Jr. 269; Brooks v. Farwell, 4 Fed. Kep. 166. 5 Parker v. Hotchkiss, 1 Wall. Jr. 269; Contra: Blight ». Fisher, Peters, C. C. 41. 6 Steiger v. Bonn, 4 Fed. Eep. 17; Union Sugar Refi.r. Mathiesson, 2 Cliff. 304. 7 U. S. V. Bridgman, 8 Am. L. Rec. 541. 8 Allen v. Blunt, 1 Blatchf. 480; Vore v. Fowler, 2 Bond, 294; Mc- Closkey v. Cobb, 2 Bond, 16; Thayer v. Wales, 5 Fish. 44S. 9 Fallis r. McArthur, 1 Bond, 100. Contra: Field i;. Lownsdale, Deady, 228. See Fisk v. Union Pac. R. R. Co. 8 Blatchf. 243; 6 Blatchf. 362. 10 Mercantile Trans. Co. v. Portland in the suit and plead his personal privilege,^ and such an appearance is not a waiver; 9 nor is it a waiver to appear and plead to the jurisdiction by an attor- ney.io \Yhere a bill was filed in the southern district of Mississippi against four defendants, two of whom ap- peared for the purpose of moving to dismiss the bill, and the other two declined to appear, and process was not served on them, the court had no alternative but to dismiss the bill, they being necessary parties. ii If parties are resi- dents of another State, they may be summoned where there is property within the jurisdiction upon which a lieu is claimed. 12 1 Harrison v. Rowan, Peters C. C. 489. 2 Flanders v. .Iltna Ins. Co. 3 Mason, 158. 3 Harrison v. Rowan, Peters C. C. 489. 4 Gracie V. Palmer, 8 Wheat. 699; Segee v. Thomas, 3 Blatchf. 11; Kelsey v. Pennsylvania K. Co. 14 Blatchf. 89; McCloskey f. Cobb, 2 Bond, 16; Flanders v. ^tna Ins. Co. 3 Mason, 158; Harrison v. Rowan, Peters C. C. 489; Clarke v. Navigation Co. 1 Story, 531. § 3 JURISDICTION, 84 5 Jones V. Andrews, 10 Wall. 327. 6 Harrison v. Rowan, Peters C. C. 489. See Flanders v. ^tua Ins. Co. 3 Mason, 15S. 7 Kentucky S. M. Co. v. Day, 2 Sawy. 468. 8 Teese v. Phelps, 1 McAU. 17. 9 Harrison v. Eowan, Peters C. C. 489. 10 Commercial Bank v. Slocomb. 14 Peters, 60; Thayer ». Wales, 5 Fish. Pat. Cas. 448; Decker v. New York B. & P. Co. 11 BlatcM. 76. 11 Herndon v. Pddgway, 17 How. 424. 12 Mercantile T. Co. v. Portland & O. R, Co. 10 Fed. Rep. 604. § 3. Revival on death of party.— That whenever either party to a final judgment or decree, lohich has been or shall be rendered in any circuit court, has died or shall die before the time allowed for taking an appeal or bringing a writ of error has expired, it shall not be necessary to revive the suit by any formal proceedings aforesaid. The representative of such deceased party may file in the office of the clerk of such circuit court a duly certified copy of his appointment, and thereupon may enter an appeal or bring writ of error, as the party he represents might have done. If the party in whose favor such judgment or decree has rendered has died before appeal taken or writ of error brought, notice to his representatives shall be given from the supreme court, as provided in case of the death of a party after appeal taken or writ of error brought. Act of March 3, 1875, § 9 (Supp. Rev. Stats. 173). EEMOVAL OF CAUSES. § 4. Removal of cause— amount in dispute.— Any suit commenced in any State court, wherein the amount in dispute, exclusive of costs, exceeds the sum. or value of Jive hundred dollars, to be made to appear to the satisfaction of said court, may he removed for trial into the circuit court for the district where such suit is pending, next to he held after the filing of the petition for such removal hereinafter mentioned, in the cases and in the manner stated in this sec- tion. Rev. Stats. § 639 (1 U. S. Stats. 79; 14 U. S. Stats. 306; 14 U. S. Stats. 558.) § 4 a. Constitutional provisions.— Congress may provide for the removal of causes from State to Federal courts,! authorize its removal from its then condition,"^ prescribe the time in which to exercise the right,^ and confer original jurisdiction by such removal.-* This power, given by implication, is the indirect means by which Fed- eral courts acquire jurisdiction. 5 It may give jurisdiction in cases arising under the Constitution or laws of the United States, althougli such cases may involve other questions of law or fact; 6 when such a question forms an ingredient of the original cause;' and no State can take away the privilege conferred upon citizens of other States to sue in the I'ederal courts ; § nor can jDarties by agree- ment oust the jurisdiction of the Federal courts. 9 A statute requiring an agreement from a foreign corporation not to remove a cause is voidji'' but a conditional license Desty Removal.— 8. § 4 b AMOUNT IX DISPUTE. 8G to transact business in a State may be revoked if such re- moval is made.n Under the Constitution of the United States, suits may be made removable after as well as be- fore judgment. 1- 1 Martin v. Hunter, 1 Wheat. 304; Mayor v. Cooper, 6 "Wall. 247; Railroad Co. v. AVliittou, 13 Wall. 270; Murray v. Patrie, 5 BlatcM. 343; Fiskt). N. P. K. R. Co. 6 Blatchf. 362; Johnson v. Monell, Woolw. 390; McCormick v. Humphrey, 27 Ind. 144; Todi'. Fairfield, 15 Ohio St. 377; Hodgson V. Mill ward, 3 Grant Cas. 412; Kulp v. Eicketts, 3 Grant Cas. 420; Greely r. Towuseud,25 Cal. 604. 2 Andrews v. Garrett, 1 Flippen, 445; Ins. Co. v. Dunn, 19 Wall. 214; Gaines v. Fueutes, 92 U. S. 10; «. C. 3 Cent. L. J. 371. 3 Clark v. Dick, 1 Dill. 8; Gaines v. Fuentes, 92 U. S. 10. 4 Murray v. Patrie, 5 Biatchf . 343. 5 Railroad v. Whitton, 13 Wall. 270; Martin v. Hunter, 1 Wheat. 304. 6 Tennessee v. Davis, 100 U. S. 257; S. C. 10 Cent. L. J. 251.. 7 N. O. M. & T. E. R. Co. v. Mississippi, 102 U. S. 351. § 4 b. Amount in controversy.— If the value is only five hundred dollars, the cause cannot be removed.! The right depends on facts existing when suit was insti- tuted ;2 yet, if defendant makes the amount more when he files the petition, it may be removed.^ The affidavit of the petitioner is not conclusive. ^ An action for damages may be removed although the damages are uncertain.^ The sum claimed as damages in the declaration is the amount in disi)ute, until otherwise shown ; 6 but the pre- sumption is not conclusive; " so in assumpsit. ^ In actions on tort the damages laid constitute the amount.^ Where the practice is not to file the declaration until after the return of the writ, the ad damnum in the writ is the prim,a facie sum claimed, lo unless the declaration is inserted in the writ.ii If the declaration and the ad damnum vary, the State court may institute an inquiry as to the true amount.i2 On attachment, it must appear that the suit presents a claim exceeding five hundred dollars dam- ages.i3 So as to the value of a right which a corporation is restrained from entering upon.i* "In dispute" refers to the matter in dispute, though the claim be incapable of proof, or be only in part well founded.is The amount 87 AMOUNT IN DISPUTE. § 4 C must be affirmatively sliown.i^ It is sufficient that it ex- ceeds five hundred dollars at the time the removal is applied for, and interest may be regarded in determining it. 17 "Where the right of removal has become complete, it cannot be defeated by release, amendment, or de- claring for a less sum; is nor "will release of part of a demand oust jurisdiction of the Federal court; 19 or reduction of amount of claim after removal deprive defendant of his rights.-o If action is brought for less than, and the answer pleads counter-claim exceeding, five hundred dollars, defendant is entitled to remove the whole suit,2i The right of creditors to come in and have claims allowed is a mere incident over which the court will necessarily exercise jurisdiction.^^ Costs are not recoverable when the amount is less than five hundred dollars.23 1 Ladd V. Tudor, 3 Wood. & M. 325; West. U. Tel. Co. v. Levi, 47 Ind. 552. 2 Roberts v. Nelson, 8 Blatchf . 74. 3 McGinnity v. White, 3 Dill. 350. 4 Rush V. Cobbett, 2 Yeates, 275. 5 Muns V. Dupont, 2 Wash. C. C. 463. Contra: Rush v. Cobbett, 2 Yeates, 275. 6 Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 How. 198; Desbrow V. Driggs, 8 Abb. Pr. 305, note. Contra: Rush v. Cobbeit, 2 Yeates, 275. 7 Ladd v. Tudor, 3 Wood. & M. 325; People v. The Judges, 2 Denio, 197; Culver v. Crawford Co. 4 Dill. 239. 8 People V. The Judges, 2 Denio, 197. 9 Hulsecamp v. Teel, 2 Dall. 358; Gordon v. Longest, 16 Peters, 97; Western U. Tel. Co. v. Levi, 47 Ind. 552. 10 Muns 17. Dupont, 2 Wash. C. C. 463; Ladd v. Tudor, 3 Wood. & M. 325. 11 Ladd V. Tudor, 3 Wood. & M. 325. 12 Ladd v. Tudor, 3 Wood. & M. 325. 13 Keith v. Levi, 2 Fed. Rep. 743. 14 Hatch V. Chicago, R. L & P. R. Pv. Co. 6 Blatchf. 165. 15 Kanouse v. Martin, 15 How. 198. 16 Keith v. Levi, 2 Fed. Rep. 743. 17 McGinnitv V.White, 3 Dill. 350; Bank of U. S.r. Daniel, 12 Peters, 32; Merrill v. Petty, 16 Wall. 338; Clarkson v. Manson, 4 Fed. Rep. 227. § 4 C AMOUNT IX DISPUTE. 88 18 Kanoiise v. Martin, 15 How. 198; Green v. Custard, 23 How. 484; Roberts v. Nelson, 8 Blatchf. 74; Wright v. Wells, 1 Peters C. C. 22u. C'07itra: Maine v. Oilman, 10 Fed. Rep. 214. 19 Wright V. Wells, 1 Peters, 220; Gordon v. Longest, 16 Peters, 97; Roberts v. Nelson, 8 Blatchf. 75. 20 Roberts v. Nelson, 8 Blatchf. 74; Zinckersen v. Hufschmidt, I Cent. L. J. 144. 21 Clarkson v. Manson, 4 Fed. Rep. 227 ; See Aurora v. West, 6 Wall. 139; S. C. 25 Ind. 148. Contra: Falls Wire ]VIauuf. Co. v. Broderick, 6 Fed. Rep. 654. 22 N. Y. Silk Manuf. Co. v. Second Nat. Bank, 10 Fed. Rep. 204. 23 Brooks v. Phoenix Ins. Co. 16 Blatchf. 182. § 4c. Right of removal.— The right to a removal of the cause is a right conferred directly by Congress, and does not depend on the action of the State court ;i which can neither confer it nor take it away.- If the right has once become perfect, it cannot be taken away by subse- quent amendment,^ either in the State or Federal court, by release of part of the claim,* or otherwise.^ A party loses none of his rights to insist upon a removal of the cause by his voluntary appearance ;6 if he appears and obtains time to answer, and gives notice of a motion to dismiss a temporary injunction, it is not a waiver of the right. ■!■ A party brought into a State court by an order to interplead, may, on motion of the original defendant, if otherwise qualified, remove the cause. § A party is not precluded by the acts of an attorney appointed for him by the court in his absence. ^ A party failing to obtain a re- moval loses none of his rights by contesting the suit on its merits. 10 Such contesting is not a waiver of his rights. 11 The right to a removal may be waived,!^ as by agreement, by direct consent, or by non-exercise of the right; 13 as by consenting to a reference, !■* or by stipula- tion, or any conduct equivalent to a waiver.i^ 1 Fisk V. U. P. R. R. Co. 6 Blatchf. 362. 2 Clippinger v. Mo. Yal. L. Ins. Co. 22 Int. Rev. Rec. 47; Hatch v. Chicago, R. i. & P. R. R. Co. 6 Blatchf. 105. 3 Kanouse I'. Martin, 15 How, 198; S. C. 1 Blatchf. 149; Akerly v. Vilas, 1 Abb. U. S. 284; S. C. 2 Biss. 110; Hatch v. Chicago, R. I. & P. R. R. Co. 6 Blatchf. 105; Fisk v. U. P. R. R. Co. 6 Blatchf. 362; S. C. 8 89 AMOUNT IN DISPUTE. § 4 d Blatchf . 243 ; Muns v. Dupont, 2 Wash. C. C. 463 ; Ladd v. Tudor, 3 Wood. & M. 325. 4 Gordon v. Longest, 16 Peters, 97 ; Roberts v. Nelson, 8 Blatchf. 74. 5 Stanley v. Chicago, E,. I. & P. R. R. Co. 3 Cent. L. J. 430; Matthews V. Lyall, 6 McLean, 13; Wright v. Wells, Peters C. C. 220. 6 Stevens v. Richardson, 9 Fed. Rep. 191. 7 Stevens v. Richardson, 9 Fed. Rep. 191. 8 Healey v. Prevost, 25 Int. K. R. 240; Postmaster-General v. Cross, 4 Wash. C. C. 326; Martin v. Taylor, 1 Wash. C. C. 1. 9 Fisk V. Fisk, 4 Martin N. S. 676. 10 New Orleans etc. R. R. Co. v. Mississippi, 102 U. S. 135; The Removal Cases, 100 U. S. 457; Insurance Co. v. Dunn, 19 Wall. 214; Ayers v. Chicago, 101 U. S. 184; Railroad Co. v. Ketchum,101 U. S. 289; Amer. Bible Soc. v. Grove, 101 U. S. 610; Bui-ke v. Flood, 1 Fed, Rep. 641. 11 Insurance Co. v. Dunn, 19 Wall. 214; Gordon v. Longest, 16 Peters, 98; Kenouse v. Martin. 18 How. 198; Stevens v. Phoenix Ins. Co. 41 N. Y. 149; Hadley v. Dunlop, 10 Ohio St. I; Stanley v. Chicago, R. L & P. K. R. Co. 3 Cent. L. J. 430. 12 Home Ins. Co. v. Curtis, 32 Mich. 402. 13 Hanover Nat. B'k v. Smith, 13 Blatchf. 224. 14 Hanover Nat. B'k v. Smith, 13 Blatchf. 224. 15 Hanover Nat. B'k v. Smith, 13 Blatchf. 224. §4d. Right dependent on citizenship.— The right of removal dei^ends on foreign citizenshij) or alien- age, i Suits against an alien include only suits between an alien and a State, or a citizen thereof.- If both parties to a suit are aliens, there can be no removal,^ nor can there be a remoA^al if plaintiff is an alien; ^ and if a citi- zen of the State is one of the defendants with an alien, it cannot be removed. ^ An alien is not a citizen, though the State laws have given him a right to vote.6 Resident unnaturalized foreigners may remove causes, although by State laws they may vote or hold office under the State government." If an alien has merely filed his declara- tion of intention to become a citizen, he is still an alien, s A foreign corporation is an alien, and may remove the cause.'-^ To authorize a removal, the controversy must be between a citizen of the State where suit is brought and a citizen of another State,!'' and the requisite citizen- ship must exist at the time of the commencement of the action.ii That it is sufficient if it existed at the time of the application for removal has also been decided. i^ § 4 e AMOUNT IX DISPUTE. 90 The right founded on citizenshii) of the ]parties dejjends on their citizenshiij as persons.i^ The citizenship of exec- utors is determined by the State in which they are citi- zens, and not by the State where they take out letters ;14 so if an executor or administrator removes to another State, he may sue in the State where his letters were granted. 15 If the action is by or against the deceased, the executor or administrator may prosecute or defend it, without reference to his own citizenship ; i6 but if he and the defendant are citizens of the same State, the Federal court has no j urisdiction, although the intestate or testa- tor was a citizen of another State. i" 1 Fisk V. U. P. R. R. Co. 6 Blatcbf. 364. 2 IMossmau v. Higgiuson, 4 Dall. 12; Hodgson v. Bowerbank, 5 Cranch, 303. 3 Orosco V. Gagliardo, 22 Cal. 83. 4 Galvin v. BoutweU, 9 Blatcbf. 470. 5 Deunistour. Potts, 19 Miss. 36. 6 Lanz v. Ptaudall, 4 Dill. 425. 7 Lanz v. Ptandall, 4 Dill. 425. 8 Lanz v. Randall, 4 Dill. 425. 9 Terry v. Imperial F. Ins. Co. 3 Dill. 403. 10 West V. Aurora, G Wall. 139. 11 Rawle V. Pbelps, 8 Fed. Rep. 356. 12 McLean v. .St. Paul & Cbicago R. R. Co. 16 Blatcbf. -309; Jackson 1'. Mutual Ins. Co. 3 Woods, 413; Jackson v. Ins. Co. 60 Ga. 423; Insur- ance Co. V. Laettel, 7 Cent. L. J. 378; Curtin v. Decker, 11 Tbe Re- porter, 290. 13 Amory i'. Amory, 95 U. S. 186. 14 Amory v. Amory, 95 U. S. 186; Geyer v. Hancock Mut. Life Ins. Co. 50 N. H. 224. 15 Rice V. Houston, 13 Wall. 66. 16 Clarke r. Mathewson, 12 Peters, 164; S. C. 2 Sum. 262. 17 Coal Co. V. Blatcbf ord, 11 Wall. 172; Dodge v. Perkins, 4 Mason, 435; Childress v. Emery, 8 Wbeat. 642; Carter v. Treadwell, 3 Story, 25; Green's Administratrix v. Creigbton, 23 IIow. 90. § 4e. From any State court.— The act does not apply to a suit brought in a Territorial court, although on the admission of such Territory as a State such suit passed iuto the jurisdiction of a State court. i A cause may be removed from any State court, whether of limited or gen- eral jurisdiction, if citizenship and amounts are within the 91 ALiExs. §§ 5-5 a statute provisions; 2 but a justice's court is not deemed a State court.^ An action brouglit by the District of Columbia against an alien cannot be removed.^ The cir- cuit court for the district within the territorial limits on which the suit is pending is in the "proper district. "^ 1 Ames V. Colorado Cent. K. R. Co. 4 Dill. 251 ; S. C. 4 Cent. L. J. 199. 2 Gaines v. Fuentes, 92 U. S. 10; S. C. 3 Cent. L. J. 371 ; 8 Ch. L. N. 225. 3 Kathbone Oil Co. v. Eauscli, 5 "W. Va. 79. 4 Cessel v. McDonald, 57 How. Pr. 175; S. C. 16 Blatclif. 150. 5 Knowltoii V. Congress & Empire S. Co. 13 Blatclif. 170. § 5. "When the suit is against an alien, or is by a citizen of the State icherein it is brought, and against a citi- zen 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. Rev. Stats. §639, subd. 1. XoTE.— Clause repealed by the Act of March 3, 1875. La Mothe Manuf. Co. v. National Tube Works, 15 Blatchf. 432; Girardey u. Moore, 3 Woods, 397; Whitehouse v. In- surance Cos. 2 Fed. Eep. 498; Cook v. Ford, 4 Cent. L. J. 560; McLean v. Chicago & St. P. E. R. Co. 16 Blatchf. 309; Kew Jersey Zinc Co. v. Trotter, 23 Int. Rev. Rec. 410. It is superseded by the latter act. Norris v. Mineral Point T. Co. 7 Fed. Rep. 272. § 5 a. Appearance.— The petition must be filed at the time of entering an appearance,i and the appearance must iirst be entered in the State court.2 This require- ment was intended not only to put the defendant to an election of his tribunal, but to give the opposite party early notice of his intention.3 To entitle a defendant to a removal from the supreme court, the applicant must file his petition in the supreme court at the time of put- ting on special bail; giving notice of the petition at the next term, and then filing it, is not sufficient.* If a suit is against a citizen of another State, the party must file his § 5 a ALIENS. 92 petition at the time he enters his appearance.^ Defend- ants may apply at different times when their appearances are entered at different times. 6 The application must be made at the time of entering the appearance in the State court, and the right is waived if defendant demurs, pleads, or answers, or otherwise submits to the jurisdiction^ The filing of a pleading or agreement by defendant, duly signed by his solicitor, and making an applica- tion thereon, is entering an appearance, s If petition- er enters into an agreement that the case shall remain on the docket, and thereby obtains a continuance, it shall be deemed an appearance.-* A landlord appears when he is admitted as a defendant.!*^ If a plaintiff has taken no step to obtain a judgment by default, defendant may ap- pear and file his petition for removal. n Where the State law does not require a formal ajDpearance, filing a petition for removal is a sufiicient appearance. i- Appearance and entering bail are separate acts.i^ So giving an undertak- ing with sureties on an arrest is not an appearance. i'^ If defendant opposes a motion for an injunction, and files an answer which is read at the hearing, he cannot remove the suit. 15 Or where he legally and properly assents to the jurisdiction.16 As where he appears and answers the orig- inal bill.i" A service of notice of appearance is not an appearance. IS Nor is the giving of formal notice of re- tainer; 19 nor a mere agreement between the parties that defendant shall have further time to answer.'-^ If defend- ant obtains an order extending the time to answer, it is equivalent to an appearance. -i If the court appoints an attorney to represent an absent defendant, his appearance is not appearance by defendant.-- An appearance in open court, at a special term held out of the district, is not an appearance entitling to a removal. -^ Where the defend- ants are served at different times, or at different times enter their appearance, they may each at such different times make application.'-^ Where some of the defendants removed a cause regularly, others cannot enter an original 93 ALIENS. § 5 b appearance in sucli court. -5 Notice of appearance filed with the clerk at the time of the application to remove is entering an appearance, but mere notice served on the plaintiff is not.-6 The State court cannot cause an appear- ance to be entered nunc pro tunc, so as to entertain a motion for a new trial.^" 1 Yulee V. Vose, 94 U. S. 439; Kingsbury v. Kingsbury. 3 Biss. 60; Redmoucl r. Kussell, 12 Johns. 153 ; Crane r. Eeeder, 28 Mich. 527 ; Webre V. Puroc, 15 La. An. 65; Gibson v. Johnson, Peters C. C. 44 ; Davis v. Cook, y Nev. 134. But see Gelstou v. Johnson, 3 N. J. 625. 2 Ward v. Arredondo, 1 Paine, 410; Field v. Lownsdale, Deady, 288. 3 Kedmond v. Russell, 12 Johns. 153. 4 Eedmond v. Russell, 12 Johns. 153. 5 Sav. Bank of Cincinnati v. Benton, 2 Met. (Ky.) 240. 6 Ward v. Arredondo, 1 Paine, 410. 7 West V. Aurora, 6 Wall. 139; Sweeney v. Coffin, 1 Dill. 73. 8 Pugsley v. Freedman's S. & T. Co. 2 Tenn. Ch. 130, 9 Robinson r. Potter, 43 X.H. 188. 10 Jackson v. Stiles, 4 Johns. 493. 11 Carpenter v. New York & X. H. R. R. Co. 11 How. Pr. 481. 12 Sweeney v. Coffin, 1 Dill. 73; Stoker z?, Leavenworth, 4 Martin N. S. 676. 13 Suydam v. Smith, 1 Denio, 263; Redmondr. Russell, 12 Johns. 153. 14 Durand v. Hollins, 3 Duer, 686; Arjo v. Monteiro, 1 Caines, 248; Bird V. Munay, Cole. & C. Cas. 63; Dart v. Arms, 19 How. Pr, 429; Haz- ard V. Duraut, 9 R. I. 6U2. 15 Livingston v. Gibbons, 4 Johns. Ch, 94. See Cooley v. Lawrence, 12 How. Pr. 176; Pugsley v. Freedman's S. & T. Co. 2 Tenn, Ch. 130. 16 Robinson v. Potter, 43 X. H. 188. 17 Richardson v. Packwood, 1 Martin N. S. 290. 18 Chatham Xat. Bk. v. Merchants' Xat. Bk. 1 Hun, 702. 19 Disbrow v. Driggs. 8 Abb. Pr. 305, note ; Xor ton v. Hayes, 4 Denio, 245; Field v. Baker, I Code Rep. (X. S.) 292. 20 Disbrow v. Driggs, 8 Abb. Pr, 305, note. 21 Ayres v. Western R. R. Corp. 32 How. Pr. 351; S. C. 48 Barb. 132. 22 Fisk V. Fisk, 4 Martin X. S. 676. 23 Bristolf. Chapman, 34 How. Pr. 140. 24 Shelby v. Hoffman, 7 Ohio St. 453; citing Ward v. Arredondo, 1 Paine, 370. 25 Ward v. Arredondo, 1 Paine, 410. 26 Field v. Blair, 1 Code Rep. (X. S.) 361. 27 Ward r. Arredondo, 1 Paine, 410. See Gibson r. Johnson, Peters C. C. 44. § 5 b. Qualification as to citizenship.— Under the first clause of §G39. a case cannot be removed unless all § 5 b ALIENS, 94 the parties plaintiff are citizens of the State where the suit is brought, and all the defendants are citizens of some other State, or are aliens ;i so where three out of four were aliens, the application was denied.2 If an indispen- sable party was a citizen of the same State with the plaintiff, jurisdiction would be defeated ;3 so if a citizen of a State is joined with a citizen of another State,^ or where suit is brought by an alien conjointly with a citizen of the State, 5 or if some of the defendants are citizens of the State where suit is brought ;6 when there were several defendants, all the persons must be within the description of the persons entitled to a transfer, and all must join in the application J So in an ejectment case, where but one was an alien, the application was denied,8 or if one of several plaintiffs is a citizen of another State,9 or if the defendants are all citizens of the State where suit is brought,!^ or if the defendant was a citizen of the State at the time suit was commenced, it cannot be removed; ^^ but the rule does not apply to mere nominal or formal parties. 12 Where the writ is served on one alone, he may remove the cause without regard to others named as de- fendants. ^3 And if only one partner of a firm is served with process, he may file a petition for removal. i^ If one defendant is served personally, and the other is served by publication, the one served personally cannot remove. 15 It is not necessary that the application be made by all the defendants at the same time; each may apply for removal on his ai)pearance.i6 It must appear that the plaintiff is a citizen of the State in which the suit is brought , i" at the commencement of the suit.^s See post A 10 i- 1 Ex parte Girard, 3 Wall. Jr. 263: Beavdsley v. Torrey, 4 Wash. C. C. 286; Smith v. Kines, 2 Sum. 330; Ward v. Arredondo, 1 Paine. 410; W. A. & G. K. R. Co. V. A. & W. R. R. Co. 19 Gratt. 592; Denniston v. Potts, 19 Miss. 36; Pugsley v. Freedmau's S. & T. Co. 2 Tenu. Ch. 130; lu re Turner, 3 Wall. Jr. 26, 263; Beery r. Irick, 22 Graft. 4S4; Perkins V. Morgan, 27 La. An. 229; Goodrich v. Hunton, 29 La. An. 372; Hazard V. Durant, 9 E. I. 602; Calderwood v. Hager, 20 Cal. 167; Calderwood v. Braly. 23 Cal. 97; Bryan i'. Ponder, 23 Ga. 480; Hubbard v. Northern K. Co. 3Blatohf. bi4; Wilson r. Blodgett. 4 McLean, 363; Fisk r. Chicago, K. I. & P. R. R. Co. 53 Barb. 472; Taylor v. Rockefeller, 25 Pitts. L. J. 137; Dumi v. Waggener, 3 Yerg. 59. j5 aliens. § 6 2 Dennistoun v. N. T. & N. H. E. K. Co. 1 Hilt. 62; S. C. 2 Abb. Pr. y Commercial etc. Bank of Vicksburg v. Slocomb, 14 Peters, 65; Ha,'an v. Walker, 14 How. 36; Shields t>. Barrow, 17 How. 141; Clear- water t'. Meredith, 21 How. 492; Barney v. Baltimore City, 6 Wall. 286: Jonesi;. Andrews, 10 Wall. 332; Brj'ant t;. Rich, 21 Wall. 41; S. C. 106 Mass. 180; Ober v. Gallagher, 93 U. S.199; Wilson v. Blodgett, 4 McLean, 3!«: Irabusch y. Farwell, 1 Blatchf. 571; Tuckerman v. Bigelow, 21 The Ki-porter, 208. 4 Hubbard v. Northern R. R. Co. 3 Blatchf. 84. 5 Dennistoun v. N. Y. & N. N. H. R. R. Co. 1 Hilt. 62; S. C. 2 Abb. Pr. 278, 415. 6 Hatch V. Chicago R. I. 6 Blatchf. 105; Wilson v. Blodgett, 4 Mc- Lean, 363; Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286; Smith t;. Rines, 2 Sum. 338; Calderwood v. Hager, 20 Cal. 167; New Orleans C. & B. Co. v. Recorder, 27 La. An. 291 ; State v. 4'om. Pleas. 3 Ohio, 49; Ludlow v. Kidd, 3 Ohio, 48; Miller v. Lynde, 2 Robt. 444 ; Tibbatts v. Berry, 10 Mon. B. 473 ; Leonard v. Jones, 2 Edw. 136; ."iiu'lby V. Hoffman, 9 Ohio St. 453. 7 Calderwood v. Hager, 20 Cal. 167. 8 Calderwood v. Hager, 20 Cal. 167. See Reed v. Calderwood, 22 Cal. 463. 9 Hubbard v. Northern R. R. Co. 3 Blatchf. 84; Ex parte Turner, 3 Wall. Jr. 258; Fisk v. Chicago, R. I. & P. R. R. Co. 53 Barb. 472; Hazard V. Durant, 9 R. I. 602; Knapp v. Railroad Co. 20 Wall. 117. 10 Lifiord v. Beatty, 12 Ohio St. 189. 11 Ins. Co. V. Pechner, 95 TJ. S. 183; Richardson v. Packwood, 1 :\lartin N. S.290; Risley v. Indianapolis B. & W. R. R. Co. 8 N. Y. Supr. 2U.'. 12 Brown v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheat. 4J1; Wood V. Davis, 18 How. 467; Ward v. Arredondo, 1 Paine, 410. 13 Fallis V. McArthur, 1 Bond. 100; Norton v. Hayes, 4 Denio, 245; Davis V. Cook, 9 Nev. 134. 14 Vandervoort v. Palmer, 4 Duer, 677. 15 Bryan v Ponder, 23 Ga. 480. 16 Ward v. Arredondo, 1 Paine, 410. 17 Fisk V. Chicago, R. I. & P. R. R. Co. 53 Barb. 472; Harrison v. Shorter, 59 Ga. 512; Smith v. Butler, 38 How. Pr. 192; Savings Bank v. Beaton, 2 Met. (Ky.) 240. l-< People V. Superior Court, 34 111. 356; Upton v. N. J. S. R. R. Co. 25 N. J. Eq. 372; Holdenv, Putnam F. Ins. Co. 46 N. Y. 1; Pechner v. Phuenix Ins. Co. 95 U. S. 183. § 6. Against an alien and a citizen.— TF74e?i 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 citi- zen of another State, upon the petition of such defendant, filed at any time before the trial or final hearing of the cause, if so far as it relates to him it is brought for the purpose of §6a 1 restraining or enjoining Jwn, or is a suit in which there can be a final determination of the controversy, so far as con- cerns him, loithoiit the presence of the other defendants as parties in the cause. But such removal shall not take away or prejudice the rigJit of the plaintiff to proceed at the same time loith the suit in the State court, as against the other defendants. Rev. Stats. § 639, subd. 2. KoTE. — Section not repealed by the Act of Marcli 3, 1875,1 as the latter act only relates to the removal of the whole suit.2 That it is repealed so far as the subdivision clause.3 1 Wormser v. Dahlraan, 16 Blatchf. 319; Girardy ». Moore, 3 Woods, 397; 5 Cent. L. J. 7S; Wormser v. Kline, 57 How. Pr. 2s6; New Jersey Zinc Co. V. Trotter, •_'3 Int. Kev. Rec. 410; Ex parte GrimljaU, 8 Cent. L. J. 151; McLean v. Chicago etc. R. E. Co. 16 Blatchf. 319; Hyde v. Ruble, 3 Morr. Trans. 516; Blake r. McKim, 1U3 U. S. 336; Barney t;. La- tham. 103 U. S. 205; Clark i-. Chicago, R. I. & P. R. K. Co; Sweet v. Same, 11 Fed. Rep. 355; Railroad Co. v. Mississippi, 102 U. S. 141. 2 Osgood V. Chicago etc. R. R. Co. 6 Biss. 3.30; Chicago v. Gage, 6 Biss. 467; Hervev v. Illinois etc. R. R. Co. 7 Biss. 103; Girardy t-. Moore, 3 Wood, 397; S. C. 5 Cent. L. J. 78; CaiTahar r. Brennau, 7 Biss. 497; Ruckmau v. Ruckman, 1 Fed. Rep. 587; Burch v. Davenport etc. R. E. Co. 46 Iowa, 449. See Removal Cases, 100 U. S.457; Arapahoe Co. u. Kan- sas & P. R. R. Co. 4 Dill. 277. But see Cook v. Ford, 4 Cent. L. J. 560. 3 Clark v. Chicago, M. & St. P. R. R. Co. 11 Fed. Rep. 355. See Hyde V. Ruble, 3 Morr. Trans. 516. § 6 a. Injunction.— The right of removal attaches where suit was brought to obtain an injunction against a citizen of another State, ^ although another person is made a party defendant against whom no injunction is sought; 2 and although it does not appear that the suit can be brought to a final determination as respects him without the presence of other defendants; ^ or if the other defendants disclaim all interest in the suit; ^ but the sole purpose of the bill must be to restrain the defendants;* but a bill to obtain a dissolution of partnership and re- strain partners from interfering with partnershij) property cannot be removed where some are citizens of the same State. 6 So the cause cannot be removed if the bill prays for an injunction, if it is merely incidental to the relief 07 ALIENS. § 6 b sought J The word " or," as used in the statute, shows that Congress intended to provide for the case where the suit was to obtain an injunction, and also where the pres- ence of other defendants is not necessary to a determina- tion of the controversy. 8 If a party files a bill to enjoin an execution creditor, the presence of the sheriff is un- necessary to final determination of the controversy. ^ 1 risk V. Chicago, K. I. & P. K. R. Co. 53 Barb. 472 ; 3 Abb. Pr. N. S. 463; Stewart v. Mordecai, 4U Ga. 1. 2 Stewart v. Mordecai, 40 Ga. 1. 3 Fisk V. Chicago, E. I. & P. R. R. Co. 53 Barb. 472 ; 3 Abb. Pr. N. S. 453. 4 New Jersey Zinc Co. v. Trotter, 23 Int. Rev. Kec. 410. ' 5 Taylor v. Rockefeller, 25 Pitts. L. J. 137; Upton v. New Jersey S. R. R. Co. 25 N. J. Eq. 372. 6 Taylor v. Rockefeller, 25 Pitts. L. J. 137. 7 Upton V. New Jersey S. R. R. Co. 25 N. J. Eq. 372. 8 risk V. Chicago, R. I. & P. R. R. Co. 53 Barb. 472. 9 Allen V. Ryerson, 2 Dill. 501. § 6 b. Final determination of controversy.— The "controversy" is the dispute between the parties, to be ascertained by an inquiry as to what is asserted and de- nied.i To ascertain what is the controversy, inquiry must be made as to what is asserted or denied, or what is claimed and resisted.^ If the controversy is susceptible of division, the case may be removed, although some of the defendants are citizens of the State where suit is brought. 3 Cases where there can be a final determination of the controversy are removable without the presence of of the other defendants.'* An alien or non-resident de- fendant, subject to the conditions specified, may remove the cause as between himself and the plaintiff, leaving the cause as to the other defendants to proceed in the State court ; 5 but no one can remove a cause unless a sep- arate judgment can be rendered against him without the presence of the other defendants.^ "Where the title to real estate is held by one of the defendants for the benefit of all, a final determination can be had, although a part of the defendants do not join, if it is alleged that the title Desty Removal.— 9. § 6 C ALIENS. 98 was obtained by the fraud of all the defendants^ In a suit to quiet title against tenants in common, one defend- ant as such tenant may remove the case, if he is otherwise within the provisions of the act.s Where an indorser claims the benefit of usurious interest paid by the maker, the case can be determined without the presence of the maker.9 One of several defendants, sued as partners, may, if the other requisites exist, have the cause removed so far as concerns himself, if there can be a final determi- nation so far as concerns him.io If there can be no final determination of the controversy without the presence of the other defendants, the case cannot be removed by the petitioner alone.n If citizens of the State are joint defendants with citizens of other States, the case cannot be removed.!- j^^ allegation in the petition that the case is susceptible of division is an allegation of law.is See post, % 10 z. 1 Ex parte Andrews, 40 Ala. 639. 2 Ex parte Andrews, 40 Ala. 639. 3 Fields v. Lamb, Deady, 430; Bixby v. Coiise, 8 Blatchf. 73; Dart V. Walker, 43 How. Pr. 29. 4 Allen v . Kyerson, 2 Dill. 501 ; Bixby v. Couse, 8 Blatchf. 73. 5 Sewing Macb. Co.'s Case, 18 Wall. 553; S. C. 110 Mass. 70; McGin- nity V. White, 3 Dill. 350; Field v. Lowusdale, Deady, 288. 6 Merwin v. Wexel, 49 How. Pr. 115. 7 Lewist). White,7 Ch. L.N. 116. 8 Field t- . Lownsdale, Deady, 288. 9 Stewart v. Mordecai, 40 Ga. 1. 10 McGinnity v. White, 3 Dill. 350; Wormser v. Dahlman, 57 How. Pr. 286. _ 11 Hodgkins v. Hayes, 9 Abb. Pr. N. S. 87; Darst v. Bates, 51 HI. 439; Burch V. Davenport & St. P. R. R. Co. 46 Iowa, 449; Washington A. & G. K. E. Co. V. Alexandria & W. K. E. Co. 19 Gratt. 592. 12 North Eiv. S. Co. v. Hoffman, 5 Johns. 300; Williams r. Price, 5 Mmif. 507. 13 Levy v. O'Neil, 14 Abb. Pr. N. S. 63. § 6c. Necessary parties. — "Where redemption of a mortgage is sought, and the land is held in severalty, all holders are necessary parties.^ So where a bill is filed against a mortgagor and others to obtain an accounting, the cause cannot be removed on application of one of the 99 ALIENS. § 6 C parties joined with the mortgagor; 2 and where a fore- closure suit is filed against a mortgagor and a subsequent mortgagee, the latter cannot remove the cause.3 An ac- tion to enforce a joint liability in equity cannot be re- moved.4 if a bill to quiet title is filed against several persons as tenants in common, one of them may remove it; 5 and if one partner only is served with process, he may remove the cause; ^ but a suit against partners to re- cover the value of goods sold is not susceptible of divis- ion.'' A foreign landlord appearing as co-defendant in ejectment cannot remove the cause unless the tenant who is a citizen of the State disclaims all interest in the premises.8 If a person files an interpleader, the cause cannot be removed without the presence of both defend- ants.9 An action of tort against several defendants, for a conspiracy, cannot be removed by part of them under the Acts of 1866 and 1867,io nor under the Act of 1875.ii If a partner brings an action of account against his copartner and another, the case is not susceptible of a division. i- An attachment proceeding is of such a nature that the debtor and garnishee cannot be severed,!^ the garnishee not being a defendant within tlie meaning of the statute.i^ Where a debtor and trustee for the sale of land are de- fendants, the debtor alone cannot remove, as the trustee is a necessary party ; is so, in an attachment proceeding, the debtor and garnishee cannot be severed.16 Where a corporation, a trustee, and the bond-holders are defend- ants, the trustee and one of the bond-holders cannot have the case removed as to them.i" A controversy concerning the probate of a will cannot be removed on a petition of part of the contestants; is so one of several opposing claimants cannot remove a cause brought by an executor for settlement of his trust and disposition of the estate; i^ so a single creditor or legatee cannot remove the cause where numerous creditors and legatees hold conflicting claims ; 20 so a citizen of another State, who makes him- self a party to a cause where a widow files a petition § 7 PREJUDICE. 100 against an administrator for her support, cannot remove witliout the presence of the administrator .21 A trustee in whom the legal title is vested is not a merely nominal party." So where a trustee, a non-resident, institutes the suit, the cestui que trust, a citizen of the State, cannot re- move. 23 The creditor cannot remove the case if a trustee files a bill to enjoin him and the sheriff from levying exe- cution on the trust i3roi)erty.2-i See post, § 10 m. 1 Miller v. Finn, 1 Neb. 254. 2 Upton V. New Jersey S. R. R. Co. 25 N. J. Eq. 372. 3 Donahoe v. Mariposa L. & M. Co. 5 Sawy. 63. 4 Yulee v. Vose. 94 C. S. 539; S. C. 64 N. Y. 449. 5 Field v. Lownsdale, Deady, 288. 6 Wormser t'. Dablman, 57 How. Pr. 286. 7 Merwinf.Wesell,49How.Pr. 115. Confra; McGinnity t>. White, 3 Dill. 350. 8 AUiii V. Robinson, 1 Dill. 119. So if the tenant is made defendant in ejectment, the landlord, citizen of another State, cannot remove the cause: Ex parte Turner, 3 Wall. Jr. 258; Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. G. 286; but see Jackson v. Stiles, 4 Johns. 4J3. 9 George v. Pilcher, 28 Gratt. 299. 10 Ex parte Andrews, 40 Ala. 639; Smith v. Rines. 2 Simi. 338. 11 Van Brunt v. Corbin, 14 Blatchf. 496. 12 Levy v. O'Neil, 14 Abb. Pr. N. S. 63. 13 Weeks v. Billings, 55 N. H. 371. 14 Weeks v. Billings, 55 N. H. 371. 15 Gardner v. Brown, 21 Wall. 36. 16 Weeks v. Billings, 55 N. H. 371. 17 Cape Girardeau R. R. Co. v. Winston, 4 Cent. L. J. 127. See Gard- ner V . Brown, 21 V/all. 36. 18 In re Fraser, 10 Ch. L. N. 390. 19 Ex parte Grimball, 8 Cent. L. J. 151. 20 Peters v. Peters, 41 Ga. 242; Burts v. Loyd, 45 Ga. 104. 21 Peters v. Peters, 41 Ga. 242. 22 Dunn v. Waggoner, 3 Yerg. 59. 23 Mead v. Walker, 15 Wis. 499; Geyer v. Hancock Ins. Co, 50 N. H. 224. 24 Nye V. Nightingale, 6 R. I. 439. § 7. Prejudice or local influence.— Tf7ien a suit is betioeen a citizen of the State in lohich it is brought and a citizen of another State, it may he so removed on the pe- 101 PREJUDICE. § 7 a-b tition of the latter, lohether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of filimj said petition, he makes and files in said State court an affidavit, stating that he has reason to believe and does believe that from, prejudice or local influence he will not be able to obtain justice in such State court. Rev. Stats. § 639. § 7 a. Statute.— The Act of 1867 is constitutional,! and is not repealed by the Act of March 3, 1875.2 It is not expressly repealed.^ The policy of the act conforms with that in regard to the change of venue from one county or district to another; ^ the object being to secure an impar- tial tribunal. s 1 Chicago & N. W. R. E. Co. v. Whitton, 13 Wall. 270. 2 Amer. Bible Society v. Grove, 101 U. S. 610; Boardr. Kansas Pac. R.R. Co. 4 Dill. 277; Deunis v. Alachua, ;3 Woods. 6S3; Farmers' L. ifc T. Co. V. Chicago P. & S. R.R. Co. 12Ch. L. N. 65; New Jersey Zinc Co. V. Trotter, 23 Int. Rev. Rec. 410; Barber v. St. I.ouis, K. C. & N. R. R. Co. 43 Iowa, 223; Wickham z;. Wickham, 27 N. Y. Supr. 239; Wormser r. Dahlraan, 16 Blatchf. 317. Contra: Burdick v. Hale, 7 Biss. 96. 3 Whitehouse v. Continental Ins. Co. 37 Leg. Int. 225.; S. C. 2 Fed. Rep. 498. 4 Johnson v. Monell, 1 Woolw. 390. 5 Farmers' etc. Trust Co. v. McQuillan, 3 Dill. 381. § 7 b. Prejudice and local influence.— A party is not entitled to remove on account of prejudice and local influence unless the adverse party is a citizen of the State in which the suit is brought. i The affidavit must be in substantial accordance with the words of the statute ; -^ but it is not generally necessary to state the reasons or facts showing the local prejudice or influence ;3 an affi- davit "to the best of his knowledge and belief" is suffi- cient; 4 but that "plaintiff had reason to and does believe that from prejudice he will not be able to obtain justice in the State court," is not sufficient without facts showing the reasonableness of his belief.'' The omission of the words "and does believe " is fatal. ^ It may be made by an agent or attorney ; "^ but if made on his belief alone, it § 7 b PREJUDICE. 102 is insufficient. 8 A cori^oration nlay make the required affidavit by its authorized ageut.9 The affidavit of the secretary of a cori^oration must show that it is made at the instance or order of the corporation; lo and if made by an officer, tliere must be proof that he was authorized to make it; ^^ but the president or general manager of a railway company is prima facie authorized.i^ The affi- davit must be taken and certified in accordance with the laws of the State/3 ^nd must be authenticated according to such laws; 14 and if taken out of the State by a commis- sioner, it must be certified to by the Secretary of State.is A commissioner's seal is presumed to be official. i^ Objec- tions to the certification may be waived by the adverse party,!" and a failure to object will be deemed a waiver. ^8 When filed it cannot be contradicted or controverted.i^ This statute does not permit a citizen of the State in which suit is brought to make the application for removal.^" When the defendant is a citizen of the State where suit is brouglit, plaintiffs cannot remove the case on the ground of local pr*>.judice if one of them is a citizen.of the same State, except where the whole controversy can be settled without the presence of tlie other plaintiffs.21 But a non- resident plaintiff may remove a cause against a citizen of the State in which suit is brought and a citizen of another State, the latter of whom voluntarily appears.22 Inter- venors may remove a cause under this section.23 1 Amer. Bible So. v. Grove, 101 U. S. 610. 2 Bait. & O. R. R. Co. v. New Albany E. R. Co. 53 Ind. 597. See Boweu V. Cbase. 7 Blatcbf. 255. 3 Anonymous, 1 Dill. 298, note; Meadow V. Min. Co. v. Dodds, Nev. 143; Quigley v. C. P. R. E. Co. 11 Nev. 350. 4 Stoker v. Leavenworth, 7 La. 390 ; De Camp v. N. J. M. L. Ins. Co. 2 Sweeny, 431. 5 Sands v. Smith, 1 Dill. 298, note; Goodrich v. Huntou, 29 La. An. 372. 6 Bait. & O. R. E. Co. v. New Albany R. E. Co. 53 Ind. 597. , 7 Dennis v. Alachua Co. 3 Woods, 683; Kain v. Texas Pac. R. E. Co. laintiff is an alien ;-2 or if both parties are aliens; 3 and under Revised Statutes, § G39, if a citizen of another State is one of the defendants with an alien, the case cannot be removed.'* If an alien has merely filed his declaration of intention to become a citizen, he is still an alien. 5 Resi- dent unnaturalized foreigners may remove causes to the Federal court, although by State laws they may vote at elections, or hold office under the State government. ^ A foreign corporation is an alien, and may remove the suit." A suit brought bj" a citizen of another State against a cit- izen of England is removable.^ To give the right to a re- moval, all on one side must be citizens, and all on the other side aliens. 9 An alien defendant may remove an action brought against him by the State. ^^ 1 Mossman v. Higginson, 4 Dall. 12; Hodgson v. Bowerbank, 5 Crancli, 363; Kesp. v. Cobbet, 3 Dall. 467. 2 Galvin v. Boutwell, 9 Blatchf. 470; Sawyer r. S. M. Ins. Co. 14 Blatclif. 451; Barrowcliffe v. La Caisse Generale, 53 How. Pr. 131, 3 Orosco V. Gagliardo, 22 Cal. 83. 4 Denniston v. Potts, 19 Miss. 36. 5 Lanz v. Randall, 4 Dill. 425; Orosco v. Gagliardo, 22 Cal. 83. 6 Lanz v. Randall, 4 Dill. 425; D'Wolf v. Raband, 1 Peters, 476; S. C. Paine, 5^0; Case r. Clarke, 5 Mason, 70; Cooper v. Galbrartli, 3 Wash. C. C. 546; Sbelton v. Tiffin, 6 How. 163. 7 Terry v. Imperial P. Ins. Co. 3 Dill. 408. 8 Eureka Consol. M. Co. v. The Richmond Consol. M. Co. 2 Fed. Rep. 829. Contra, under § 639, Denniston v. Potts. 19 Miss. 36. 9 Dannmeyer v. Coleman, 11 Fed. Rep. 97. 10 Stater. Lewis, 12 Fed. Rep. 1. Contra: Gale v. Babcock, 4 "Wash. C. C. 344; Resp. v. Corbet, 3 Dall. 467. § 10 e. By amount in controversy.— The claim of the plaintiff, and not the counter-claim of the defendant, should fix the amount in dispute; i and the petition should affirmatively state the amount; 2 and if the amount in dispute exceeds $500, exclusive of costs, at the time of the application, the case is removable, although the requisite amount did not exist when the suit was commenced.^ The amount claimed in the body of the complaint must be looked into, and not alone the prayer for judgment ;4 Ill GROU>'D OF KEMOVAF.. § 10 f for where the claim is for an amount not fixed, and which can be ascertained only by triaf, plaintiff may lay dam- ages at any amount. ^ The jurisdictional limitation as to the amount in controversy has reference to the sum in dispute between the plaintiff and the defendant.^ Where a counter-claim was interposed claiming damages for fraudulent representations in regard to the subject-matter, to an amount more than §500 in excess of plaintiff's claim, the suit is removable." If the amount claimed is over five hundred dollars, the State court cannot permit the plaintiff to reduce below that amount after defendant has filed a petition and complied with the requirements of law. 8 1 Falls Wire Manuf'g Co. r. Broderick, 6 Fed. Rep. 654; Contra: Clarkson v. Manson, 4 Fed. Hep. 257. 2 Keith v. Levi, 2 Fed. Rep. 743. 3 Clarkson v. Manson, 4 Fed. Rep. 257 ; McGinnlty v. Wliite, 3 Dill. 350. 4 Culver v. Crawford Co. 4 Dill. 239. 5 Culver v. Crawford Co. 4 Dill. 239. 6 N. Y. Silk Manuf'g Co. r. Second Xat. Bank, 10 Fed. Rep. 204. 7 Clarkson r. Manson, 18 Blatchf. 443. 4 Fed. Rep. 257. 8 Kanouse v. Martin, 15 How. 198; Stanley v. Chicago, R. I. & P. R. R. Co. 62 Mo. 5u8; Beery v. Same, 64 Mo. 533. Contra: People v. Judg- es, 2 Denio, 197. § 10 f. Cases arising under the Constitution, la^ws, or treaties. — Wlienever tlie decision of a case de- pends upon the construction of the Constitution of tlie United States, an act of Congress, or treaty, the case may be removed if the matter in dispute exceeds SoOO.i A suit arises whenever, upon the whole record, there is a controversy involviug the construction of either; 2 but they must be directly and not incidentally called in ques- tion; 3 and if a suit involves a Federal question, it may be removed, although other questions founded on principles of general law may be involved ;4 and although a State is plaintiff,^ and the citizenship of the parties has nothing to do with the question. ^ If the plaintiff is a corporation, created by an Act of Congress, the case arises under the § 10 f GROUND OF REMOVAL. 112 laws of Congress;' but it is otherwise in the case of a national bank.8 Cases involving questions under the bankrupt act are removable ; ^ or cases under the home- stead laws of the United States; i<^ or under the act of Congress respecting customs and duties ;ii but the er- roneous levy of State taxes does not involve a Federal question. 12 A suit begun by a defeated candidate for a State oflSce, to try his right to the office, does not involve a Federal question.i^ So where the State supreme court in the State where action is brought refuses to make the construction of the laws of another State decided by its supreme court the rule of decision, it does not involve a Federal question; i* so a case brought to enforce the con- tract for a royalty Is not a case arising under the patent laws, unless brought against a citizen of another State praying for an injunction. is Actions upon adverse pro- ceedings to iprevent the issuance of a patent for a mining claim are removable; i^ but where the only question is as to the local laws, rules, and regulations, the case is not removable.i" Cases arising under tlie laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or jjrlvilege, care or protection, or defense of a party, in whole or in part.i^ A case relating to the title to land is not one of Federal jurisdiction where rights depend on State statutes or the general principles of law;i'-> but only such as depend on a disputed construction of the Constitution and laws of the United States ; 20 so a party who claims land under an act of Congress, imposing a direct tax, may remove an ejecmeut suit;'-i but he cannot remove if he claims under a grant from the State in which suit is pending at the time.22 Where in an action of trespass the defendant justifies the alleged trespass under authority of a court and the laws of the United States, the cause is removable.^^ 1 Gold Washing & ^Y. Co. v. Keyes, 96 U. S. 199; Woolridge v. Mc- Kenna, 8 Fed. Rep. 650; Connor v. Scott, 4 Dill. 242; New Orleans, M. & T. R. Co. V. Mississippi, 102 U. S. 135. 2 Cohens v. Virginia, 6 Wlieat. 264; Mavor of N. Y. v. Cooper, 6 Wall. 247 : Tennesee v. Davis, 100 U. S. 275; Van Allen v. Atchison, C. & 113 GROUND OF REMOVAL. § 10 g P. R. Co. 3 Fed. Rep. 545; Hatch r. Wallamet Iron B. Co. 11 The Re- porter, N. S. 630; N. O. etc. Railroad v. Mississippi, 102 U. S. 135; Gold AYash. & W. Co. v. Keyes, 96 U. S. 201; Connor v. State, 4 Dill. 242; Woolridse v. McKenna, 8 Fed. Rep. 650. 3 State V. Bowen, 8 Rich. N. S. 382. 4 Connor v. Scott, 4 Dill. 242. 5 New Orleans, M. & T. R. Co. v. State, 13 Ch. L. N. 93. 6 "Wilder v. Union Nat. Bank, 12 Ch. L. N. 75. 7 Osborn v. Bank of U. S. 9 Wheat. 733; U. P. R. R. Co. v. Macomo, 1 Fed. Rep. 799: Gold Wash. Co. r. Keyes, 96 U. S. 199, distinguished; Railroad Company v. Mississippi, lOJ (J. S. 135. 8 Petitionr. Noble,7 Biss. 449. 9 Connor v. Scott, 4 Dill. 242; Houser v. Clayton, 3 Woods, 273; Heherti'. Lefevre,31 La. An. 3o3; Paysonr. Dietz, 5 Ch. L. N. 434; Wehl V. Wald, 18 Blatchf. 163; Woolrid-e v. McKenna, 8 Fed. Rep. 650. 10 Van Allen r. Atchison, C. & P. R. Co. 3 Fed. Rep. 545. 11 Orner v. Saunders, 3 Dill. 284. 12 Berger v. Douglas Co. 5 Fed. Rep. 23. 13 Dubuclet r. State, 2 Morr. Trans. 559. 14 Wiggins v. Chicago & A. R. Co. 11 Fed. Rep. 381. 15 Root V. Lake Shore & Mich. S. R. Co. 11 Fed. Rep. 349. 16 Frank. G. & S. M. Co. v. Larimer M. & S. Co. 12 Fed. Rep. . 17 Traf ton v. Nougues, 4 Sawy. 178. 18 Railroad Co. v. Mississippi, 102 U. S. 135. 19 McStay v. Friedman, 92 U. S. 723; Romle -r. Cassanova, 91 U. S. 380; Traf ton v. Nougues, 4 Sawy. 178. 20 Trafton v. Nougues, 4 Sawy. 178. 21 Peyton r. Bliss, 1 Woolw. 170. 22 Shepherd v. Young, 1 Mon. 203. 23 Houser v. Clayton, 3 Woods, 273. § 10 g. Suits pending.— By the provisions of tbis sec- tion, a cause pending when the act was passed may be removed " at or before the first term at wliich said cause could be first tried," after tlie passage of the act; i but if a trial had been had after the passage of the act, it cannot be made, although the verdict had been set aside, and a new trial granted.'^ The authority last cited distinguishes the Act of 18G7, which says "at any time before the first hearing or trial," the Act of 1875 saying "before or at the term in which a trial could be had." The words of the act, "then pending," mean the first trial after the right of removal attaches, subsequently to the passage of the act: 3 and the application is in time if made at the first § 10 ll GROUND OF REMOVAX. 114 term of the court thereafter.^ A case pending in the State supreme court at the time of the passage of the act, and wliich was remanded for further proceedings, stands like a new cause, and the right of removal may be claimed at or before the term at which it can be tried.^ Causes which might have been tried before but were not, and which were pending for trial when the act went into oi> eration, as well as causes once tried but in which a new trial had been ordered, and which were j^ending ready for trial when the act took effect, are removable if the application therefor be made within the time required in the act; c but where a cause was pending when the Act of 1875 was passed, and was tried in 1878, and afterwards, on appeal, a new trial was granted, a petition for removal thereafter was not in time." The transfer of a cause from the State to a Federal court does not vacate what has been done in the State court previous to removal; what lias been decided in the State court is res adjudicata, and cannot be reviewed. ^ 1 Andrews v. Garrett, 1 Flippen, 445. 2 Young V. Andes Ins. Co. 1 Flippen, 599. 3 Hoadley v. San Francisco, 3 Sawy. 553. 4 Removal Cases, 100 U. S. 457; Baker v. Peterson, 4 Dill. 562; Hoadley v. San Francisco, 3 Savory. 553; Andrews v. Garrett, 2 Cent. L. J. 797; M. D OF REMOVAL,. 130 4 Maine v. Gilman, 10 Fed. Rep. 214. It relates to a single individ- ual controversy in whicli all on ttie moving side are necessary parties, ■when all must unite, while the second clause contemplates cases in ■which there are persons whose presence is not necessary: Smith v. McKay, 4 Fed. Rep. 353. 5 McLean v. Chicago & St. P. R. Co. 16 Blatchf. 319; Taylor v. Rockefeller, 6 Fed. Kep. 226; Stapleton r. Reynolds, 9 Ch. L. N. 33; Evans v. Faxon, 10 Fed. Eep. 312; Hervey v. Illinois & Midland R. Co. 7 Biss. 103; Girardey v. Moore, 3 Woods, 397; First Presb. Soc. of G. B. t?. Goodrich T. Co. 7 Fed. Kep. 257; Maine v. Gilman, 10 Fed. Rep. 214; Wormser v. Dahlman, 57 How. Pr. 286. 6 Evansr. Faxon, 10 Fed. Eep. 312; Walsh f. Memphis, C. & N. W. R. Co. 6 Fed. Rep. 797; McLean v. St. Paul & Chicago R. Co. 16 Blatchf. 309; Elierman i'. New Orleans, M. & T. K. Co. 2 Woods, 120; Smith v. St. Louis M. L. Ins. Co. 2 Tenn. Ch. 656; First Presb. Soc. of G. B. v. Goodrich T. Co. 7 Fed. Rep. 257. 7 Can-aher I'. Brennan, 7Biss. 497; Board t;. Kan. Pac. E. R. 4 Dill. 277; Burch v. Davenport & St. P. R. Co. 46 Iowa, 449; Barney v. La- tham, 11 The Reporter, N. S. 93; Chicago v. Gage, 6 Biss. 467. 8 Girardey v. Moore, 3 Woods, 397. 9 Low V. Wayne Co. Sav. Bk. 14 Blatchf. 449. 10 Ketchum v. Black River Lum. Co. 4 Fed. Rep. 139. 11 Hervey v. Hlinois M. R. Co. 7 Biss. 103; Bybee v. Hawkett, 5 Fed. Rep. 1; SteVens r. Richardson, 9 Fed. Rep. 191; Evans t;. Faxon, 10 Fed. Rep. 312. 12 Farmers' L. & T. Co. v. C. P. & S. R. Co. 12 Ch. L. N. 65. 13 Sheldon v. Keokuk N. W. Line Pack. Co. 1 Fed. Rep. 789." 14 Stapleton v. Reynolds, 9 Ch. L. N. 33. 15 Stapleton v. Re>nolds, 9 Ch. L. N. 33; Davis v. Cook, 9 Nev. 134. Where all the parties have the requisite citizenship, one alone may petition. Arapahoe Co. v. Kansas P. R. R. Co. 4 Dill. 277 ; Girardey v. Moore, 3 Woods, 397; Carswell i;. Schley, 59 Ga. 17. 16 Maine v. Gilman, 10 Fed. Rep. 214; Barney v. Latham, 103 U. S. 205. 17 Burke v. Flood, 1 Fed. Rep. 541 ; 6 Sawy. 220. 18 Burke r. Flood, 1 Fed. Rep. 541; S. C. 4 Pac. C. L.J. 501; Van Brunt V. Corbin. 14 Blatchf. 496; In re Frazier, 10 Ch. L. N. 390; Ruble V. Hyde, 3 Fed. Rep. 330. If some of the plaintiffs or some of the de- fendants are citizens of the same State, one alone cannot remove the cause: Hervey i». Illinois M. R. R. Co. 7 Biss. 103; Ruckman r. Pali- sades Land Co. 1 Fed. Rep. 367. 19 Burdick r. Peterson, 6 Fed. Rep. 840; Tower r. Ficklin, 60 Ga. 373; Healy r. Provost. 25 Int. Rev. Rec. 240. See Postmaster-General V. Cross, 4 Wash. C. C. 326; Martin r. Taylor, 4 Wash. C. C. 1. 20 Boone v. Iowa & M. Const. Co. 10 Fed. Rep. 401; In re Iowa & M. Const. Co. 10 Fed. Rep. 4ul. 21 Girardey v. Moore, 3 Woods, 397; Nat. Union Bank v. Dodge, 25 Int. Rev. Rec. 304. See Shepard v. K. N. L. Pack. Co. 12 Ch. L. N. 220. 22 Lockhart v. Horn, 1 Woods, 634; and see Sheiflon v. Keokuk N. L. P. Co. 1 Fed. Rep. 789; Taylor v. Rockefeller, 7 Cent. L. J. 349: Clark V. Chicago M. & St. P. R. Co. 11 Fed. Rep. 355. 23 Clark v. Chicago M. & S.P. R. Co. 11 Fed. Rep. 355; Sweet v. Same, 11 Fed. Rep. 355. 24 Stevens v. Richardson, 9 Fed. Rep. 191. 131 GROUND OF REMOVAL. § 10 p 25 Nat. Union Bk. v. Dodge, 25 Int. Rev. Rec. 304. 26 Carraher v. Brennan, 7 Biss. 497; Ellerman v. New Orleans, M. & T.R.Co. 2 Woods, 120; Smithi;. St. Louis M.L. Ins. Co. 2 Teun. CU. (356; Smith V. McKay, 4 Fed. Rep. 353; Heivey v. Illinois M. R. Co. 7 Biss. 103; Chicago v. Gage, 6 Biss. 467; Osgood v. Chicago, D. & V. R. Co. 6 Biss. 330; Board v. Kansas Pae. R. Co, 4 Dill. 277; Burnham v. D. & M. E. Co. 4 Dill. 503. 27 Anderson v. Gerding, 3 Woods, 487. 28 Temple v. Smith, 4 Fed. Rep. 392. 29 Ellerman v. New Orleans, M. & T. R. Co. 2 Woods, 120. 30 Ex parte Turner, 3 Wall. Jr. 258. § 10 p. Decisions under the Acts of 1866, 1867.— A non-resident plaintiff is entitled to a removal as to all the defendants.! He may remove as against a citizen of the State in which suit is brought and a citizen of a third State who had voluntarily appeared. 2 A removal is not authorized when the application is made by a citizen of the State where suit is brought,^ nor where both parties are citizens of the same State.^ If the substantial parties are two corporations, and both citizens of the State, the cause cannot be removed. 5 So if both parties become citizens of the same State prior to the filing of the peti- tion, the cause cannot be removed. 6 A defendant cannot remove the cause where he became a citizen of another State after the bringing of the suit.' All the plaintiffs must be citizens of the State where suit is brought, and non-resident plaintiffs cannot remove wholly nor as to themselves. 8 If citizens of different States unite as plaint- iffs, defendant, although a citizen of another State, cannot remove the cause; 9 nor in such case can plaintiffs remove.i"^ Kor can the suit be removed if a citizen of the State joins with a citizen of another State; ^ so if there are several plaintiffs, and one of them is not a citizen of the State, it cannot be removed;!^ and a suit in which a citizen of the State is plaintiff and a domestic corpora- tion and two citizens of another State are joint defend- ants is not removable. 13 The Act of 1867 does not apply where the cause of removal is alienage ;!■* so an alien defendant is not within this clause,i5 and if plaintiff is an § 10 p GROCND OF REMOVAL. 132 alien, defeudent cannot remove; ^^ or if botli parties are citizens of States other than where suit is brought.i^ So u citizen of the District of Columbia cannot remove a suit into the Federal court. is Under the Judiciary Act, § 12, to authorize a removal, the citizenship of each of the defendants must be such as to make his suit removable. i^ Under the Acts of 1806, 1867, it is sufficient that the defendant applying for is at the time of filing his peti- tion a citizen of another State, and the plaintiff a citizen of the State where suit is brought.20 But if defendant had been a resident of the State at the time of the pas- sage of those acts, the case is different.^i In an action ex contractu, where there were three defendants, two non-residents and a third a citizen of the State where suit was brouglit, it could not be removed by the two non-residents. --2 Each defendant must be a resident of a different State from the plaintiff's State; 23 so where the removal of the whole suit was sought, and not the suit as to the non-residents under the Act of 1866.2-1 go the grantor of a deed cannot, under the Act of 1866, remove a suit to foreclose a deed, leaving the trustee, his co-defendant, in the State court; 25 and so of a garnishee or trustee joined as defendant. 26 Under the Act of 1867 one of several defendants, a non-resident, cannot remove unless the others are improper, formal, or un- necessary parties.2^ A mere voluntary intervenor can- not remove the cause; 2s and so of stockholders of a corporation ; 29 but one not sued but brought into the suit as warrantor, on motion of the defendant, has the right to remove, as in the case of a landlord, where the tenant is defendant.3o 1 Sands V. Smith, 1 Dill. IRO. 2 Sands V. Smith, 1 Dill. liiO; doubted, Sewing Mach. Cos.' Cas. 18 Wall. 553. 3 Hurst V. Railroad Co. 93 U. S. 7i. 4 Knapp V. Troy & B. R. R. Co. 20 Wall. 124. 5 W. A. & G. R. Co. V. A. & W. R. R. Co. 19 Gratt. 592. 6 Laird v. Conn. & P. Riv. R. R. Co. 55 N. H. 375. 133 GROUND OF REMOVAL. § 10 q 7 Dart v. Walker, 4 Daly, 188; S. C. 43 How. Pr. 29; Indiana B. & W. R. R. Co. V. Kisley, .50 Iiul. 60; Tapley v. Martin, 116 Mass. 275; Dustin V. Dickinson, 2 Mich. N. P. 6. Contra: Jolinson v. Monell, 1 Woolw. 390; Cook v. WMtney, 3 Woods, 715. 8 Bliss V. Rawson, 43 Ga. 181. 9 Bryant v. Scott, 67 N. C. 391. 10 Bliss V. Rawson, 43 Ga. 181; Beery f. Irick, 22 Gratt.484; Martin V. Coons, 24 La. An. 169. 11 Goodrich v. Hunton, 29 La. An. 372; Upton v. New Jersey S. R. R. Co. 25 N. .J. Eq. 37:^; Case v. Donglass, 1 Dill. 299; Fisk v. Chicago, R. I. & P. R. R. Co. 53 Barb. 472; Hazard v. Durant, 9 R. I. 602. 12 Case V. Douglass, 1 Dill. 299; Fisk v. Chicago, R. I. & P. R. R. Co. 53 Barb. 472; Hazard v. Durant, 9 R. I. 602; Merwiu v. Wexel, 49 How. Pr. 115. 13 Howland etc. Works v. Brown, 13 Bush, 681. 14 Crane v. Reeder, 28 Mich. 527. 15 Sewing Mach. Cos.' Cas. 18 Wall. .553; S. C. 110 Mass. 70; Crane v. Reeder, 28 Mich. 527; Davis v. Cook, 9 Nev. 134. 16 Knickerbocker L. Ins. Co. v. Gerbach, 70 Pa. St. 150. 17 Insurance Co. v. Francis, 11 Wall. 210; Hurst v. Railroad Co. 93 U. S.71; Anier. Bible Soci. v. Grove, 101 U. S. 610. 18 Cissel V. McDonald, 16 Blatchf. 150; Hepburn v. Ellzey, 2 Cranch. 445; Westcott v. Fairfield, Peters C. C. 45; New Orleans r. Winter, 1 Wheat. 91; Vape v. Mifflin, 4 Wash. C. C. 519; Picquet v. Swan, 5 Mason, 35; Barney v. Baltimore, 6Wall.280. 19 Shelby v. Hoffman, 7 Ohio St. 453; Citing Hubbard v. Northern R. R. Co. 25 Vt. 715; Board of Foreign Missions v. McMaster, 4 Am. Law Reg. 529; Welch v. Tennent, 4 Cal. 203. 20 McGinnity v. White, 3 Dill. 350. 21 Dart V. Walker, 4 Daly, 188. 22 Sewing Mach. Cos.' Cas. 18 Wall. 553; S. C. 110 Mass. 23 Fairchild v. Durand, 8 Ahb. Pr. 305, See Bixby v. Couse, 8 Blatchf. 73. 24 Vannevar v. Bryant, 21 Wall. 41. 25 Gardner t'. Brown, 21 Wall. 36; Coal Co. v. Blatchf. 11 Wall. 172. 26 Weeks v. Billings, 55 N. H. 371. 27 Cooket'. State Nat. Bk, 52 N. Y. 96. 28 Williams v. Williams, 24 La. An. 55. 29 W. A. & G. R. R. Co. v. A. & W. R. R. Co. 19 Graft. 592. 30 Greener. Klinger, 10 Fed. Rep. 689; and see In Re Iowa & M. Const. Co. 10 Fed. Rep. 401;Healeyt>. Prevost, 6 Week. No. 579. § 10 q. Righttoremove.— The right to remove, under Revised Statutes, § 639, attaches in every case (1) where the controversy is between citizens of different States; (2) where the matter in dispute exceeds S500, exclusive of costs; (3) under the Act of 1867, the citizen of such other State must file the required affidavit as to local prejudicej Desty Removal.— 13. § 10 q GROUND OF REMOVAL 134 and (4) lie must giA'e tlie required security for his appear- ance. ^ It must appear that the contest in the suit is be- tween citizens of different States. 2 The right depends on the citizenship of the persons who are parties to the record, although others have an interest in the suit,3 or on foreign citizenship or alienage. ^ Under the Act of 1866 the suit must be brought by a citizen of the State in which it is i^ending ; » for if brought by a citizen of another State, or an alien, it cannot be removed; 6 and taking out letters of administration will not make him a citizen; ■* and if defendant was a citizen at the commencement of the suit, he cannot, by becoming a citizen of another State, acquire the right to remove. § This section has no refer- ence to a case where one of the defendants is an alien, and the others are citizens of another State, and none, or none served, are citizens of the State where suit is brought .9 Under the Act of 1866 a plaintiff has no right to remove the cause; ^ the right is confined to the alien or non-resident defendant; 11 it applies only where there are two defendants, one of whom is a citizen of another State or an alien. 12 If a defendant is sued jointly with others, he may remove, though he afterwards becomes sole defendant. 13 If the defendants are entitled to sever, those only need unite in the petition who are entitled to remove,!-* and the cause will be removed only as to the defendant who petitions. is On a joint application the re- moval may be granted to one and denied as to the other.is The right, if claimed by the mode prescribed, depends on the case disclosed by the pleadings ;i" and equitable de- fenses will not prevent a removal. is 1 Joliiison V. Monell, 1 Woolw. 390. Under the Act of 1875, the affi- davit of local prejudice is not necessary : Allen v. Ryerson, 2 Dill. 501. 2 Welch V. Tennent, 4 Cal. 203; Greely v. Towusend, 25 Cal. 604. 3 Eobb V. Parker, 3 Rich. N. S. 60. 4 Fislc V. Union P. R. R. Co. 6 Blatchf. 364. 5 Amory v. Araory, 95 U. S. 186; Sands v. Smith, 1 Dill. 290; Fisk v. Chicago, R. I. & P. K. R. Co. 53 Barb. 472. 6 Amory v. Amory, 95 U. S. 186; Sands v. Smith, 1 Dill. 290; Fisk r. Chicago, R. I. & P. R. R. Co. 53 Barb. 472; Knickerbocker L. Ins. Co. v. Gerbach. 70 Pa. St. 160. 135 PROCEEDINGS. § 11 7 Amory v. Amory, 95 U. S. 186. 8 Dart v. "Walker, 43 How. Pr. 29. But see McGinuity v. White, 3 Dill. 350. 9 Davis V. Cooli, 9 Nev. 134. 10 Sands v. Smith. 1 Dill. 290; hut under the Act of 1875, either par- ty may remove, all forming tne party on one side being citizens of different States from those on the other: Ruble v. Hyde, 3 Fed. liep. S30. 11 Sew. Mach. Cos.' Cas. 18 Wall. 553; S. C. 110 Mass. 70. 12 George v. Pilcher, 28 Graft. 299; Davis v. Cook, 9 Nev. 134; Good- rich V. Hu'nton, 29 La. An. 372; Fairchild i'. Duraud,8 Abb. Pr. 305. See Schwab v. Hudson, 11 Ch. L. N. 372; Cissel v. McDonald, 16 Blatchf. 150. 13 Yulee v. Vose, 99 U. S. 539; S. C. 64 N. Y. 449. 14 Lewis V. White, 7 Ch. L. N. 116. 15 Wormser v. Dahlman, 16 Blatchf. 319; S. C. 57 How. Pr. 286. 16 Dart v. Walker, 4 Daly, 188. 17 Barney v. Latham, 103 U. S. 205. 18 Tarver v. Ficklin, 60 Ga. 373. §11. Removal proceedings.— 77ia« lohenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned 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 mal-e and file a petition in such suit in such State court, before or at the term, at which said cause coidd he 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, loith good and sufficient surety for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was lorongfully or improperly removed thereto, and also for there appearing and entering special bail in such suit, if special bail loas originally requisite therein; it shall then be the duty of the State court to accept said petition and bond, and proceed no farther in such suit, and any bail that may have been originally taken shall be discharged ; and the said copy being entered as aforesaid in said circuit court of the United States, the cause shall then proceed in the same § 11 a PROCEEDINGS. 136 manner as if it had been originally commenced in the said circuit court ; and if in any action commenced in a State court the title of land he concerned, and the parties are citizens of the same State, and the matter in dispute exceeds the sum or value of fice hundred dollars, exclusive of costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land tinder a grant from a State, and produce the original grant ^ or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such information, or otherioise not be allowed to plead such grant or give it in evidence upon the trial ; and if he or they inform that he or they do claim under such grant, any one or more of the party moving for such infor- mation may then, on petition and bond, as hereinbefore men- tioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district ; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim, and the trial of issues of fact in the circuit courts shall, in all suits except those of equity and of admiralty and maritime jurisdiction, be by jury. Act of March 3, 1875, § 3. § 11 a. Application.— A case cannot be removed on a mere stipulation.! Neither an Infant nor his guardian can consent to a removal,2 as consent will not confer jurisdiction,3 nor can a removal be effected by filing the petition and bond, without any action of the court.4 The application does not constitute a waiver of the use and service of proper papers.^ A party seeking a removal 137 PROCEEDINGS. § 11 b must do all that is necessary to secure it;^ and the dis- cretion of the court in passing on the question as to the necessary steps being i^roperly taken is a legal discre- tion J The case is removable, though erroneously applied for under the provisions of §639, Revised Statutes. ^ A notice of the application is not necessary .9 The State rourt cannot cause the applicatiora to be entered nunc pro tunc, so as to entertain a notion for removal. i" A party does not lose his riglit to insist on a removal, by a voluntary appearance; 11 but proceeding to trial without calling the attention of the court to the petition and bond for removal is deemed a waiver of the right.i-^ The til- ing of a petition for removal is a sufficient application. 13 1 Kingsbury v. Kingsbury, 3 Biss. 60. 2 Kingsbury v. Kingsbiu-y, 3 Biss. 60. 3 Re Hopkins, 18 Bank Reg. 339. 4 Scott V. Otis, 10 Ch. L. N. 41. 5 Parrott v. Alabama Gold L. Ins. Co. 5 Fed. Itep. 391. 6 Clippinger v. Mo. Val. L. Ins. Co. 1 Flippen, 456. 7 Hatch V. Chicago, K. I. etc. E. K. Co. 6 Blatchf. 105. 8 Norris t- . Mineral Point TunneU, 7 Fed. Eep. 272. 9 McLean v. Chicago etc. B. R. Co.l9 Blatchf. 319; Stevens v. Rich- ardson, 9 Fed. Rep. pjl. Contra: Bristol v. Chapman, 34 How. Pr. 140; Distrow v. Driggs, 8 Abb. Pr. 305, note. 10 Ward v. Arredondo, 1 Paine, 410. 11 Stevens r. Richardson, 9 Fed. Rep. 191. 12 Home Ins. Co. v. Curtis, 3J Mich. 402. 13 La Mothe Manuf. Co. v. Nat. Tube Works, 15 Blatchf. 432. § lib. Petition. — A petition is a request in writing in contradistinction to a motion which may be made viva voce.^ The office of the petition is to set on foot proceedings to obtain a removal. It must contain such averments as entitle to relief,^ and such as are positive, and express the facts on which it depends, and not argu- mentative.3 It should point out what the question is, and how and where it will arise,-* and state such facts as show to the court that the case falls within the category of removable causes. ^ The petition must set forth the jurisdictional facts.^ The facts upon which the petitioner § 11 b PROCEEDINGS. 138 bases his right must he made to appear, hut no particu- lar mode is prescribed. It may he by admission of parties, by affidavit, or by the testimony of witnesses;" but where the petition fails to show that the case is re- movable, the court should deny the application. 8 The right of removal is statutory, and the party applying must show upon the record that the case is one which comes within the provisions of the statute.^ The petition Avhen liled becomes part of the record. It should state facts which, taken in connection with such as already appear, entitle him to a removal. ^'^ Where the fact of non-residence svifficiently appears on the record, it need not be shown by petition. ^ It is necessary to show as well that suit was commenced " by a citizen of a State in which the suit is brought," as that it was commenced "against a citizen of another State"; 12 so stating that plaintiff "is a citizen" is insufficient ;13 go an averment that he is a resident of the State is not sufficient.i^ That a corporation was formed under the laws of a State, and is a resident thereof, is sufficient. ^-5 Where the petition states that the plaintiffs "as executors" are citizens of the State, it is insufficient as to personal citizenship.^s That petitioner is not a resident of the State is not suffi- cient for the expression of non-resident, i' nor is a mere averment that petitioner is an alien or a citizen of anoth- er State; 18 i^ut an averment that the defendent is a citizen of the southern district of Alabama is a sufficient averment of citizenship of Alabama ;19 but the allegation that the plaintiff is a citizen of a certain county is not sufficient allegation of citizenship.20 The petition must state the citizeushii) of the parties, unless it sufficiently appears on the record.-i The averment that certain of the petitioners, "as they are the qualified executors," were and are citizens, is an averment of their personal citizenship.-^ But under the Act of 1875 the petitioner need not state that plaintiff was at the date of the com- mencement of the suit a citizen of a State otlier than that 139 PROCEEDINGS. § 11 b of which defendant is a citizen, if the requisites of citi- zenship exist at the time of filing the petition. 23 it is otherwise under the Judiciary Act, where it must he affirmatively shown that the requisite citizenship existed at the commencement of the action.-^ The petition of an intervenor is sufficient if it avers citizenship in the present tense. 25 The omission to state that j^laintiff is a citizen of the State where suit is brought may be sup- plied subsequently.26 "Where all the plaintiffs have the requisite citizenship, any one interested may move, but the petition must set out all the facts; 2' and under the Judiciary Act, all must join in the petition. 28 Where the removal is sought on the ground of citizenship, the peti- tion must allege that all the defendants uniting are of a different citizenship from the plaintiffs.29 It is no ob- jection that the petition and bond are not signed by the petitioner.30 They may be signed and verified by an agent or attorney. si Nor need the petition be filed per- sonally. 32 An application, under the Act of 1867, may be made by a corporation of another State through its authorized agent or attorney,33 but under the Judiciary Act it is not sufficient that the petition be signed by its attorney at law.3^ The petition need not be sworn to; the statiite does not expressly require the petition to be verified by affidavit; the mere filing of the petition and bond removes it ijyso facto. ^^ If made on notice, and the averments are not denied, it will be taken as true, and proof may be adduced if the averments are denied.^o When the facts set forth on a petition make a case, a mistake in referring to the statute is unimportant ;37 and wliere a petition was founded on the Act of 1867, and did not show a right under that act, but did show a cause within the Act of 1866, it was sufficient under the Act of 1866.33 But under the Judiciary Act the exact language of the statute should be followed in stating the grounds.39 The omission to refer to any special law under which the removal is demanded cannot prejudice the right ;-*o and a § 11 b PROCEEDINGS. 140 case is removable, altbougb erroneously prayed under the statute; •*! but where the prayer of the petition does not ask for the removal of the entire suit, the cause will be remanded.42 An exception to the jurisdiction, and a prayer that the action be dismissed, is not a proper peti- Tion.-53 \ second petition does not constitute an aban- donment of the tirst;^* but if a case has been once removed, and then remanded because insufficient, the party cannot file a second petition.^s if a petition be de- fective, it may be amended, as a matter of right ;46 and if not verified, a verified petition may be filed.^^ A veri- fied i)etitiou must state that defendants have a defense arising under and by virtue of the Constitution, treaty, or law of the United States.^s The jietition may be filed in vacation.^'-* 1 Sbaft V. Phoenix M. L. Ins. Co. 67 N. Y. 544. 2 De Camp v. N. J. M. L. Ins. Co. 2 Sweeney, 481. 3 Brown v. Keene, 8 Peters, 112; citing Bingham v. Cabbot, 3 Dall. 19, 382; Abercrombie v. Dupuis. 7 Craucn, 343; Wood v. Wagnor, 2 Cranch, 9; Capron v. Tan Noorden, 2 Cranch, 126. 4 Trafton v. Nougues, 4 Sawy. 173. 5 In re Anderson, 3 "Woods, 124; McMurdy v. Ins. Co. 4 Week. Ins. Cas. 18: Tunstall v. Madison Parish, 30 La. An. 471; Lalor v. Dun- ning, 56 How. Pr. 209. 6 Smith V. Horton, 7 Fed. Rep. 270. 7 People V. Superior Court, 34 ni. 356. 8 Weed Sewing Machine Co. v. Smith, 71 111. 204; U. S. Sav. Inst. V. Brockschmidt, 72 111. 370; New Orleans etc. Co. v. Recorder etc. 27 La. An. 291; McWhinney v. Brooke, 64 lud. 360; Liverpool Ins. Co. v. McGiiire, 52 Miss. 227; Hartford F. Ins. Co. r. Green, 52 Miss. 332; Blair r. West Point etc. Co. 7 Neb. 146. 9 Amory v. Amory, 95 U. S. 186. 10 Amory v. Ajiiory, 95 U. S. 186. See New Orleans etc. R. R. Co. V. Mississippi, U. S. 11 Bondurant v. Walson, 2 Morr. Trans. 479. 12 Holden v. Putnam F. Ins. Co. 46 N. Y. 1. 13 Holden v. Putnam F. Ins. Co. 46 N. Y. 1. 14 Parker r. Overman. 18 How. 137; Darst v. Bates. 51 111. 439; Corp. V. Vermilye, 3 Johns. 143; Martin v. Coons, 24 La. An. 169; Beebe ». Armstrong, 11 Mart. 440. 15 Pwathbone Oil Tract Co. v. Bauch, 5 W. Va. 79. 16 Amory v. Amory, 95 U. S. 186. 17 Easton v. Rucker, 1 Marsh. J. J. 232. 18 Welch V. Tennent, 4 Cal. 203; Savings Bank v. Benton. 2 Met. CKy.) 240. 141 PROCEEDINGS. § 11 b 19 Berlin v. Jones, 1 Woods, 638. 20 Pechner v. Phoenix Ins. Co. 95 U. S. 183; Carswell v. Schley, 59 Ga. 17. But see Stoker v. Leavenworth, 7 La. 390. 21 Insurance Co. v. Francis, 11 Wall. 210; Welch v. Tennent, 4 Cal. 203; Harrison v. Shorter, 5) Ga. 112; Insurance Co. v. McGuire, 52 Miss. 227; Hartford F. Ins. Co. v. Green, 52 Miss. 332; Phoenix L. Ins. Co. t;. Saettel, 33 Ohio St. 278; Savings Bank v. Benton, 2 Met. (Ky.) 240. 22 Cooke V. Seligman, 7 Fed. Rep. 263. 23 McLean v. St. Paul etc. E,. R. Co. 16 Blatchf . 309. See also Jack- son V. Mutual Ins. Co. 3 Woods, 413; S. C. 60 Ga. 423; Johnson v. Monell, Woolw. 390; McGinnity v. White, 3 Dill. 350. 24 Weed Sew. Rlach. Co. v. Smith, 71 HI. 204; Beehe v. Cheenev, 11 The Reporter, 360; Ins. Co. r. Pechner. 95 U. S. 183; S. C. 6 Lans. 411; SavhigsBank r. Benton, 2 Met. (Ky.) 240; U.S. Sav.Inst. v.Brock- schmidt,72 III. 370; Indiana B. & W. H. Co. v. Risley, 50 Ind. 60: Holden V. Putnam, 46 N. Y. 1 ; Kaeiser v. Illinois Cent. R. R. Co. 6 Fed. Rep. 1. But see People v. Superior Court, 34 111. 356. 25 Burdick v. Peterson, 6 Fed. Rep. 840. 26 Field v. Blair, 1 Code Reporter, N. S. 361. 27 Carswell v. Schley, 59 Ga. 17. 28 Fallis V. McArthur, 1 Bond, 100; Vandervoort v. Palmer, 4 Duer, 677; Calderwood v. Hager, 20 Cal. 167; Norton ?;. Hayes, 4 Denio,245; Bryan v. Ponder, 23 Ga. 480; W. A. &, G. R. R. Co. v. C. & W. R. B. Co. 19 Gratt. 592 ; Davis v. Cook, 9 Ne v. 134 ; Pugsley t). F. S. & T. Co. 2 Tenn. Ch. 130. 29 Chester v. Chester, 7 Fed. Rep. 1 ; Smith v. Horton, 11 The Re- porter, 423; Meyer v. Delaware Coustr. Co. 100 U. S. 457. 30 Vandervoort v. Palmer, 4 Duer, 677. Contra: Kirknatrick v. Hopkins, 2 Miles, 277; Best v. N. Y. L. Ins. Co. 2 Cin. Rep. 329; Meyer v. Delaware K. Co. 100 U. S. 457. 31 McLean v. Chicago etc. R. R. Co. 16 Blatchf. 309; Cooke v. Selig- man, 7 Fed. Rep. 2H3; Dennis v. Alachua Co. 3 Woods, 683; Vander- voort V. Palmer, 4 Duer, 677; Wormser v. Kline, 57 How. Pr. 286; Kos- enfield v. Adams Express Co. 21 La. An. 233; Sweeney v. Coffin, I Dill. 73. 32 Fisk V. Fisk, 4 Martin N. S. 676; Cooke v. SeUgman. 7 Fed. Kep. 263. 33 Fisk V. Fisk, 4 Martin K S. 676; Dennis v. Alachua Co, 3 Woods, 683; Wormser v. Kline, 57 How. Pr. 286; Mix v. Andes Ins. Co. 74 N. Y. 53; Vandervoort v. Palmer, 4 Duer, 677; Shaft v. Phoenix Life Ins. Co. 67 N. Y. 544; Meyer v. Del. R. Co. 100 U. S. 457. 34 Kirkpatrick v. Hopkins, 2 Miles, 277. 35 Allen v. Ryerson, 2 Dill. 501 : Connor v. Scott, 4 Dill. 242; Bowen V. Chase, 7 Blatchf. 255; Sweenev v. Coffin. 1 Dill. 73; Merchants' etc. Bank v. Wheeler, 3 Cent. L. J. 13; Houser v. Clayton, 3 Woods, 373; Osgood V. C. D. & V. R. Co. 6 Biss. 330. 36 De Camp v. N. J. M. L. Ins. Co. 2 Sweeney, 481. 37 Norris I'. Mineral Point Tun. Co. 11 The Reporter, 693; Dart r. Walker, 43 How. Pr. 29; Minnett v. M. & St. P. R. Co, 3 Dill. 460; Stanley v. Chicago, II. I. & P. R. Co. 62 Mo. 508; Goodrich v. Hunton, 29 La. An. 372. 38 Dart v. Walker, 4 Daly, 188. 39 Railway Co. v. Ramsey, 22 Wall. 323. § 11 C PROCEEDINGS. 142 40 Goodrich v. Hunton, 29 La. An. 372. 41 Norris v. :Mineral Point Tunnel, 7 Fed. Eep. 272. 42 Clark v. Chicago, M. & St. P. R. R. Co. 11 Fed. Rep. 355; Sweet r. Same, 11 Fed. Hep. 355. 43 Webre v. Duroc, 15 La. An. 65. 44 Tunstall V. Madison, 30 La. An. 471. 45 Eastin v. Rucker, 1 Marsh. J. J. 232. 46 Delaware Eiv. C. Co. v. D. & St. P. R. R. Co. 46 Iowa, 400; Houser V. Clayton, 3 Woods, 2T3. 47 Houser v. Clayton, 3 Woods, 273. 48 Osborn v. U. S. Bank, 9 Wheat. 738. 49 Osgood V. C. D. & V. R. R. Co, 6 Biss. 330. § 11 c. Bond and security.— Under the Judiciary- Act tbe defendant must give several or joint and several tonds, and not joint bonds;! but under tbe Act of 1875, "good and sufficient surety" is all that is required. 2 The Act of 1867 only requires the offer of "good and sufficient surety," the surety to bind himself in Avriting. The form is immaterial.3 So a stipulation in the nature of a recog- nizance is sufficient."* The penalty must be sufficient to indemnify for delay or failure to comply with its terms.s and a penalty of one thousand dollars will be deemed suf- llceut, if defendant has not been held to bail.^ Where the bond did not contain the conditions required by the Act of 1875, and the penal sum was left blank in non-com- pliance with the Act of 1867, the case was remanded.'' The security must be offered at the time of filing the peti- tion. * Under the Judiciary Act the securities must be offered at the time of the party's appearance.^ The juris- diction of the Federal court does not dei)end on the form or substance of the bond, if the statute in the other re- spects has been complied with; 10 and the petition need not contain an offer to give the security. i^ If the peti- tioner fails to file his bond, the case remains in the State court,!- and the bond need not be filed till the security is accepted.i3 The petitioner need not execute the bond,i* but the attorney of the petitioner may sign for him.^^ If, however, he does not sign, he must explain his reasons fur not doing so.ic if the bond be signed by strangers 143 PROCEEDINGS. § 11 C only, and there is no proof of their solvency, there will be no error in refusing to transfer the cause. i" The State court may investigate the value of the sureties, ^s and judge of their sufficiency. ^^ It must determine whether the surety is " good and sufficient," may determine the amount, and whether it should be joint or joint and sev- eral,-" and may require the sureties to justify.21 But the sureties on the bond are not bound to justify until a rule to do so is laid upon them.'-^ The absence of any acknowledgment or proof of the execution of the bond is a matter of practice for the State court to pass upon.'-^3 Where the bond presented is apparently ample, the State court cannot arbitrarily refuse to receive it, or refuse to remove without giving an oppor- tunity to correct it, and make it ample.24 It cannot reject the security without assigning a cause; '--5 nor can it refuse to accept it, except on the ground of insufficiency."-^ If all the requisites exist, the State court must accept the surety and proceed no farther.^" The surety is not bound by the subsequent adjudication against the principal in the State court .-8 An irregularity or defect in the form of the bond will be deemed waived after the expiration of eighteen months, where the cause was removed with the consent of all the parties.-^ The bond is sufficient if con- ditioned that petitioners will comply with the statute, and although the obligors are not called sureties ; so "but it must provide for the appearance of petitioner at the next term of the court ;3i and that the surety will cause copies of the record to be entered is not sufficient.^^ If the time prescribed in the bond within which the transcrij^t shall be filed has elapsed, the bond is insufficient; 3-3 and if de- fendant is held to bail, the amount of the bond must equal the bail.si A clause in the condition of the bond provid- ing that defendants shall cause to be done such other and appropriate acts as are required is sufficient compliance with the requirements of the statute.-3i> 1 Koberts v. Carrington. 2 Hall, 649; Hazard v. Durant, 9 R. I. 602. § 11 d PROCEEDINGS. 144 2 Removal Cases, 100 U. S. 457; Mix v. Andes las. Co. 74 N". T. 53. 3 Timstall V. Madisoa, 30 La. An. 471 ; Mix v. Andes Ins. Co. 74 N. y. 53. * 4 Brown v. Crippen, 4 Hen. & M. 173. 5 Miller v. Finn, 1 Neb. 254. 6 Blauchard v. Dwiglit, 12 "Wend. 192. 7 Bvrdeck r. Hale, 7 Biss. 96; 8 Ch. L. N. 192. See Torrey v. Grant Works, 14 Blatchf. 2Gf). 8 Kirkpatrick v. Hopkins. 2 Miles, 277; Best v. N. Y. Life Ins. Co. 2 Cin. Rep. ;i29; Kobinson v. Potter, 43 N. H. 188; Hazard v. Durant, 9 R. I. 602 ; Weed Sew. Mach. Co. v. Smith, 71 111. 204. Contra : Campbell V. Wallen, 1 Mart. & Y. 266. 9 Kirkpatrick f. Hopkins, 2 Miles, 277. 10 Beebe v. Cheeney, 11 The Reporter, 360 11 Campbell v. Wallen, 1 Mart. & Y. 266. 12 Hill V. Henderson, 21 Miss. 688. 13 Timstall V. Madison, 30 La. An. 471. 14 Brown v. Crippen, 4 Hen. & M. 173; Stevens v. Richardson, 13 The Reporter, 678; S. C. 9 Fed. Rep. 191. 15 Dennis v. Alachua, 3 Woods, 683. 16 Weed Sew. Mach. Co. v. Smith, 71 111. 204. 17 Weed Sew. Mach. Co. t- . Smith, 71 111. 204. 18 Orosco V. Gagliardo, 22 Cal. 83; Suydam v. Smith, I Denio, 263. 19 Fitz V. Haydeu, 4 Martin N. S. 653. 20 Mix V. Andes Ins. Co. 74 N. Y. 53. 21 Weed Sew. Mach. Co. v. Smith, 71 111. 204; Darst v. Bates, 51 IlL 439; MUler v. Fina, 1 Neb. 254. 22 Empire Trans. Co. v. Richards, 8S 111. 404. 23 Cooke v. Seligman, 7 Fed. Rep. 263. 24 Taylor v. Shaw, 54 N. Y. 75. 25 Yulee v. Vose, 94 U. S. 539; Taylor v. Shaw, 54 N. Y. 75; Mix v. Andes Ins. Co. 74 N. Y. 53. 26 Yulee V. Vose, 94 U. S. 539; S. C. 64 N. Y. 449; Fisk v. Union Pac. R. Co. 6 Blatchf. 362; Mis v. Andes Ins. Co. 74 N. Y. 53. 27 De Camp v. N. J. M. L. Ins. Co. 2 Sweeny, 481. 28 State v. Tiedermann, 10 Fed. Rep. 20. 29 Hervey v. Hlinois M. R. Co. 3 Fed. Rep. 707. 30 Stevens v. Richardson, 9 Fed. Rep. 191. 31 Miller v. Finn, 1 Neb. 254. 32 Clippinger v. Missouri Val. Ins. Co. 26 Ohio St. 404. 33 Clippinger v. Missouri Val. Ins. Co. 26 Ohio St. 404. 34 Jones v. Seward, 17 Abb. Pr. 377. 35 Cooke v. Seligman. 7 Fed. Rep. 263. § 11 d. At or before the first term.— Tlie Act of 1875 requires the petition to be made and filed at the first term at which the cause could be tried on its merits, and before the trial thereof;! even if the cause could not be 145 PROCEEDI2fGS. § 11 d readied for trial.2 The first term at which the case can be tried is the term at which there is an issue for trial; 3 and after the expiration of such term an application is too late.4 The term, " at which a cause could be first tried," means when the issues are first made up;° that is, the term at which either party may demand a trial.6 It is not necessary that it should be at the first term that it could be put at issue, but at any time before pleadings are com- pleted, or at the first term following^ It is the evident intention of the Act of March 3rd, 1875, § 3, that if, under the local law and practice, a case could have been tried at a stated term, a removal cannot be had after the lapse of that term.8 So if the case was at issue and could have been tried, but was continued over the term by consent of parties, it is then too late,^ unless the State law did not require it to be tried at the appearance term.i*^ But the entry of appearance must be general and uncondi- tional, ii at or before the term at which, by the law of the State and rules of practice, the cause should first regularly stand for trial; i^ and the time cannot be extended by the circuit court, where, in point of fact, the issues are not made up at the first term.is The Code of Iowa, which provides that law actions " shall be tried at the first term after legal and timely service has been made," limits the time for application for removal of law actions ;14 while equity suits may be removed to the circuit court at the second term, at least where there is no rule of court re- quiring such suits to be tried at the appearance term.i^ In an equity cause the limitation is to the first term at which the cause can, on due notice, be regularly set down for hearing, and before its hearing; i6 and under the Code this includes foreclosures of mortgages. i" A chancery case cannot be tried till the issues are made up, and if there is no delay on the part of the applicant, the application is in time if made before the lapse of the term at which it could have been tried.is It is not necessarily the first term of the court wherein the action is entered, but the Desty removal.— 13. § 11 d PROCEEDINGS. 140 term when, after pleadings are made up, it could be first tried under the rules of practice. i9 The application is seasonable if made at the trial term next after the term at Avhich the cause is at issue if it be the term at which it could first be tried.20 Where terms of court were held every month, and a rule of court provided that at any time within ten days of the commencement of a term the case might be placed on the calendar, an application made the second month after the case was placed on the calen- dar is too late. 21 If the term at which the cause could be first tried is one which occurs during the time a trial is stayed by order of the court, it is not such a term as is meant by the statute.- A party who proceeds to trial without applying for a transfer cannot remove at a subse- quent term, although a new trial may have been granted. It is otherwise under the Acts of 1866, 1867.23 It must affirmatively appear on the record, or by facto in the petition, that the case could not have been heard and tried at a term before the application was made.24 1 American Bible Society v. Grove, 101 U. S. 610; Ames v. Colorado Cent. K. Co. 4 Dill. 260; McLean v. Chicago Sc St. P. R. Co. 16 BlatcM. 319; Fulton V. Golden, 20 Alb. Law J. 229; Murray v. Holden, 2 Fed. Hep. 740; Huddy v. Havens, 5 Cent. L. J. 66; Taylerv. Rockefeller, 7 Cent. Law J. 349; Danville Banking & T. Co. v. Parks, 88 111. 170; Kuowlton V. Congress & E. Spring Co. 13 BlatcM. 170; N. Y. W. & S. Co. V. Loomis, 122 Mass. 431; Inhab. of School Dist. v. ^tna Ins. Co. 66 Me. 370. 2 Barber v. St. Louis etc. R. R. Co. 43 Iowa, 223. 3 Meyer v. Construction Co. 100 U. S. 474; Scott v. Clinton & S. R. Co. 6 Biss. 529; Gurnee v. Brunswick, 1 Hughes, 270;Grpene v. Klingler, 10 Cent. L.J. 47; Whitehouse v. Continental Ins. Co. 37 Leg. Int. 225; Phoenix Life Ins. Co. v. Saettel, 33 Ohio St. 278. 4 Traders' Bank v. Tallmadge, 9 Fed. Rep. 363. 5 Scott t;. Clinton & S. R. Co. 6 Biss. 529; Murray v. Holden, 2 Fed. Rep. 740. 6 Babbitt v. Clark, 2 Morr. Trans. 606. 7 "Vyhitehouse v. Contin. F. Ins. Co. 2 Fed. Rep. 598. 8 Gurnee v. Brunswick, 1 Hughes, 270; Danville Banking & T. Co. V. Parks, 8S 111. 170; Carswell v. Schley, 59 Ga. 17; Cole v. La Cliambre, 31 La. An. 41 ; New York W. & S. Co. v. Loomis, 122 Mass. 431 ; Inhab. of School Dist. V. MXm^ Ins. Co. 66 Me. 370; Watt v. White, 46 Tex. 338; Aldrich v. Crouch, 10 Fed. Rep. 305. 9 Scott V. Clinton & S. R. Co. 6 Biss. 529; Stough v. Hatch, 16 Blatchf. 233. 10 Palmer v. Call, 4 Dill. 566. 147 PROCEEDINGS. § 11 6 11 McCuUough V. Sterling S. F. Co. 4 DiU. 563. 12 Phoenix Life Ins. Co. r. Saettel, 33 Ohio St. 278. 13 Atlee v. Potter, 4 Dill. 559. 14 Atlee v. Potter, 4 Dill. 559; McCuUough v. Sterling School F. Co. 4 Dill. 563. 15 Pahner v. Call, 4 Dill. .566. 16 Warner v. Sisson, 23 N. J. Eq. 117. 17 Palmer v. CaU, 4 Dili. 566. 18 Scott V. Clinton & S. R. Co. 6 Biss. 529. See Michigan 0. K. H. Co. V. Andes Ins. Co. 9 Ch. L. N. 34. 19 Meyer v. Norton, 9 Fed. Eep. 433; Wheeler v. Liverpool L. Ins. Co. 13 The Reporter, 563. 20 Wheeler v. Liverpool L. Ins. Co. 13 The Reporter, 418. 21 Kerting v. Am. Oleographic Co. 10 Fed. Rep. U . S. 17. 22 Warren v. Pa. K. Ft. Co. 13 Blatchf. 231. See Bright r. Milwaukee etc. R. R. Co. 1 Abb. N. C. 14; Farrest v. Edwin Farrest House, 1 Fed. Rep. 4S9. 23 Young V. Andes Ins. Co. 3 Cent. L. J. 719. 24 Aldrich v. Crouch, 10 Fed. Rep. 305. § 11 e. "When cause could be first tried.— To au- thorize a removal the action must, at the tiuie of the application, be actually pending for trial.i The act omits the words "final hearing," and uses simply the word '•trial,"^ meaning that hearing which involves the facts of the case, and their investigation by the court alone, or by the court and jury. The petition must be filed before snch trial commences; 3 but it cannot be said to have commenced when only preparations have been made for it.'' A cause may be removed before an answer is made wJiere bailees have moved for a substitution of the real parties in interest, and the order of substitution has been entered." A case is in a condition to be tried when it is a1 i it was held too late.-*' Removal cannot be obtained after the cause has been twice fixed for trial at two different sessions of the court. -i A petition filed before trial, and at a term subsequent to entry and issue, is too late, although the case has been first put on the trial list at the term in which the petition is filed.22 A cause cannot be removed after a default entered, and before the default has been set aside, even though the service was by publi- cation, and default not made absolute.23 An application filed after a cause is called and plaintiff has announced himself ready, and time is granted defendants to apply for a continuance, is too late;-^ since the petition cannot be filed after the trial has commenced; -5 or even after the pleadings have been read and the evidence submitted, and before the argument has begun. 26 There has been a 149 PROCEEDINGS. § 11 6 "trial" if a judgment has "been rendered sustaining a demurrer to an answer. ^^ If a case be referred to a mas- ter in clianeery, it cannot be removed; 2s nor should a petition be granted where a suit was tried, and the jury- disagreed, and the case was continued.29 On reversal of a decree on a suit for an accounting, ordering an account to be taken but not giving a second hearing, the cause cannot be removed.^o A removal as to garnishee pro- ceeding instituted concurrently with the action is too late after judgment on the main action.^i if the appellate tribunal enters a judgment instead of remanding the case, the case cannot be removed. s^ But if a party is forced to trial by a refusal to order a removal, he may remain till after reversal, and then remove. ^s So a case is not re- movable after a writ of scire facias has issued.34 The application made within the time specified by the statute for appearance on a motion to reopen a decree is in time.ss 1 Vannevar r. Bryant, 21 Wall. 43; S. C. 106 Mass. ISO. 2 McCallon t;. Waterman, 1 Flippen, 652. 3 Lewis V. Smytlie, 2 Woods, 117. 4 Removal Cases, 100 U. S. 457; Yulee v. Vose, 99 U. S. 539; S. C. 64 N. Y.449. 5 Hodson I'. Lake Shore etc. R. M. Co. 13 The Reporter, 41. 6 Mich. Cent. R. Co. v. Andes Ins. Co. 9 Ch. L. N. 34. 7 Stapleton v. Reynolds, 9 Ch. L. N. 33. 8 Burdick v. Peterson, 11 The Reporter, 829. 9 Greene t'.Klingler, 10 Cent. L. J. 47.10 Fed. Rep. 689. 10 Aldrich v. Crouch, 10 Fed. Rep. 10. 11 Van Allen v. Atchison C. & P. R. R. Co. 3 Fed. Rep. 545. 12 St. Anthony's F. W. P. v. King & Bridge Co. 23 Minn. 186. 13 Gurneev. Brunswick Co. 1 Hughes, 270; Blackwell v. Brown, 1 Fed. Rep. 351; Chicago, B. & Q. R. Co. v. Welch, 44 Iowa, 665; White- house V. Ins. Co. 2 Fed. Rep. 493. 14 Stough V. Hatch, 8 The Reporter, 7. 15 Hunter v. Royal Canadian Ins. Co. 3 Hughes, 234. 16 Pettilon v. Noble, 7 Biss. 449. 17 Kerth v. Levi, 2 Fed. Rep. 743. 18 Broadnax v. Eisner, 13 Blatchf. 366. 19 U. S. Savings Inst. v. Brockschmidt, 72 lU. 370. 20 Traders' Bank v. Tallinadge, 13 The Reporter, 714. 21 Cole V. La Chambre, 31 La. An. 41. 22 N. Y. W. & S. Co. V. Loomis, 122 Mass. 431. § 11 f PROCEEDINGS. 150 23 McCallou v. Waterman, 4 Cent. L. J. 413; S. C. 1 Flippen,651. See Bright f. Milwaukee R. E. Co. 1 Abb. N. C. 14; criticised in 4 Cent. L. J. 492. 24 Watt V. White, 46 Tex. 338. 25 Del. Riv. Const. Co. v. Davenport & St. P. K. R. Co. 46 Iowa, 406. 26 Lewis v. Smythe, 2 Woods, 177. 27 Meyer v. Norton, 9 Fed. Rep. 433 28 Jifkins v. Sweetser, 13 Ch. L. N. 103. 29 Amer. Bible Soc. v. Grove, 101 U.S. 610. 30 Jifkins v. Sweetser, 11 The Reporter, 625, 31 Pratt?;. Albright, 9 Fed. Eep. 634. 32 Jifkins v. Sweetser, 13 Ch. L. N. 103. 33 Railroad Co. v. Koontz, 3 Morr. Trans. 34. 34 Mooney v. Agnew, 4 Fed. Eep. 7. 35 Harter Town v. Kernochan, 2 Morr. Trans. 235. § 11 f. Time under prior statutes.— Under the twelfth section of the Judiciary Act defendant was com- pelled to file his petition at the time of entering his appear- ance; and by the Act of 18G6 the time was enlarged, and he was allowed to file at any time before the trial or final hearing; and by the Act of 1867 the words "trial or final hearing" were changed to "final hearing or trial"; and the Act of 1875 omits the words " final hearing," and uses simply the word " trial." Under the Act of 1867 the word " trial" referred to cases at law, and "hearing" to suits in equity.i "Trial" and "final hearing" are distinct terms; "trial" applies to common-law cases, and "hearing" to suits in equity.2 By "trial or final hearing" is meant a trial or hearing on the merits; ^ an examination of the facts in issue. ^ Under the Act of 1866 the right is not lim- ited to the time when suit was commenced ;5 and where none of the defendants are citizens of the State where sued, and are served at different times, or at different times enter an appearance, they may at different times respectively make application. <> So where a landlord in- tervenes, his application is in time if made on the day after he becomes defendant, providing the cause had not been previously at issue. "ii If before the pleadings are completed, it is in time.s The petition may be made at anytime before the trial or hearing; ^ and before final 151 PROCEEDINGS. § 11 f hearing or trial means before final judgment in the court of original jurisdiction. 1° An application under tlie Acts of 1866 and 1867 must be made before trial or hearing, not- withstanding an amendment of the declaration on which issue was not joined at the time the petition was filed. ^i The action must be actually pending for trial; 12 and though it need not be removed at the appearance term, it must be at the term when it stands for trial. i3 It cannot be removed after the jury is sworn; i^ uor after argument and submission of the case.i^ If after hearing the case has been referred to a master it cannot be removed. ^s a petition for removal cannot be filed after a motion for new trial has been overruled; i" but submission to a jury under the act is not a " final hearing," When there has been a partial disagreement as to the verdict,i8 and if the jury disagree, the case may be remoA'ed;!^ and if a new trial has been granted the cause may be removed; 20 but other- wise if it has not been granted. 21 If the court has wholly set aside the verdict and granted a new trial, or if the supreme court has remanded the cause and granted a trial de novo, it is in the same position as before the first trial or ]iearing;22 |)ut a right to the second trial must be perfected before a demand for the transfer can be made. -3 A removal is authorized before final judgment, but not after appeal from such judgment; -^ nor can the motion be made in the appellate court pending appeal; '-5 but it may be removed if only a preliminary question is decided.^s Where the decree of the court below was reversed, the cause remanded with directions to dismiss the suit, the I^arty has no remedy; 2" but where a new trial is ordered, a removal may be had,^^ and there is no need of new pleadings if the case is in a ijroper shajie for trial ;29 but after the second term it is too late.*^ So iilaintiff would have the right to dismiss his suit and commence in the Federal court.^i Although defendant is entitled to a new trial, yet if the judgment remains in force he cannot re- move; 32 and so if the appellate court enters judgment instead of remanding the cause. 3^ § 11 f PROCEEDINGS. 152 1 McCallon v. Waterman, 1 Flippeii, 652. 2 Insurance Co. r. Dunn, 19 Wall. 214; Crane v. Eeeder, 28 Mich. 527; Miller r. Finn, 1 Neb. 254; Akerly v. Vilas, 24 Wis. 165. 3 Insurance Co. v. Dunn, 19 Wall. 214. 4 Vannevar v. Bryant, 21 Wall. 41 ; S. C. 106 Mass. 180. 5 Johnson v. Monell, 1 Woolw. .390: and see Insurance Co. v. Pech- ner, 95 U. S. 183. 6 Shelby r. Hoffman. 7 Ohio St. 453; Ward v. Arredondo, 1 Paine, 370; Fisk v. Union Pac. K. Pt. Co. 8 Blatchf. 248. 7 Greene v. Klinger, 10 Cent. L. J. 47, 11 Fed. Rep. 8 Whitehouse v. Continental Ins. Co. 37 Leg. Int. 225. 9 Vannevar v. Brvant, 21 Wall. 43; .*<. C. 106 Mass. 180; Cox v. East Tenn. V. & G. R. R. Co. 62 Ga. 163; Ely v. North. P. R. R. Co. 7 Week. Notes, 145; S. C. 36 Leg. Int. 164. 10 Yulee v. Vose, 99 U. S. 539; Brice v. Soraers, 1 Flippen, 574. 11 Adams Express Co. v. Trego, 35 Md. 47. See Lewis v. Smythe, 2 Woods, 117. 12 Vannevar v. Bryant, 21 Wall. 41. 13 Cox V. East Tenn. V. & G. R. B. Co. 62 Ga. 163. 14 Adams Express Co. v. Trego, 35 Md. 47. 15 Waggener v. Cheek, 2 Dill. 560. 16 Jifkins v. Sweetser, 13 Ch. L. N. 103. 17 Fasnacht v. Frank, 23 Wall. 416. 18 Osborn v. Osborn, 5 Fed. Rep. 389. 19 Hall r. Ricketts, 9 Bush, 366; Burson v. Nat. ParK Bank, 10 Ind* 173; Clarke v. Dekiware «fc H. Can. Co. 11 R. I. 36. Contra: Galpin v Critchlow, 112 Mass. 339; Chandler v. Coe,56 N. H. 184; Continental Ins. Co. V. Kasey, 27 Gratt. 216. 20 Minnett v. M. & St. P. R. R. Co. 3 Dill. 460; Kellogg v. Hughes, 3 Dill. 357. Contra: Akerly v. Vilas, 24 Wis. 165; Chandler v. Coe, 56 N. H. 184; Continental Ins. Co. v. Kasey, 27 Gratt. 216; Hall v. Ricketts, 9 Bush, 366. 21 Vannevar v. Bryant, 21 Wall. 41 ; Bryant v. Rich, 106 Mass. 180. 22 Stevenson v. Wilson. 19 Wall. 572; Vannevar v. Brvant, 21 Wall. 41 ; Waggener v. Cheek, 2 Dill. 560; Kellogg v. Hughes, 3 Dill. 357; Min- nett V. Milwaukee arties thereto to plead de novo ; and the hond given, conditioned as aforesaid, shall he discharged so far as it requires a copy of the record to be filed as aforesaid. Act March 3, 1875, § 7. § 14 a. The record.— The coi^y of the record must be duly certilied,i and detached papers may be certified to, and may constitute the record if duly certified.^ The cause is removed as of the date when the motion is made, and the papers should be certified as of that date; 3 but it is not sufficient to enter merely a copy of the summons; 4 " process " is equivalent to proceedings.5 It is not neces- sary that the fact of alienage or citizenship should appear on the record of the original i^roceedings.s Y/here a cause has been removed, and all the papers subsequently destroyed by fire, and the parties admit the cause was transferred in accordance with the statute, the court may presume that the requisite citizenship was shown; ^ so the record may be amended by consent; s and where the record at the time of removal did disclose the fact, the transcrijit in the Federal court may be amended so as to conform to the State record;'-* but whether the record in the State court may be amended so as to conform to the statute after the term has passed, qusere?'^^ An amend- ment to the transcript may be filed where the record does not disclose the requisite citizenship. i^ 1 Martin v. Kanouse, 1 Blatchf. 149. 2 Commercial & S. Bk. v. Corbet, 5 Sawy. 172. 3 Clark v. Delaware etc. Can. Co. 11 R. I. 36. 4 McBratney i-. Usher, 1 DiU. 367. §§ 14 b-C TLME TO FILE APPLICATION. 106 5 McBratney v. Usher, 1 Dill. 367. j 6 Ladd v. Tudor, 3 Wood. & M. 325; Frauciscus v. Surget, 6 Eobt. 33. 7 Railway Co. v. Eamsey, 22 Wall. 328. 8 Hodgson v. Bowerbank, 5 Crancli, 303. See Parker v. Overman, 18 How. 137. 9 Kaeiser v. Hlinois Cent. R. R. Co. 6 Fed. Rep. 1. 10 Kaeiser v. Hlinois Cent. R. R, Co. 6 Fed. Rep. 1. 11 Kaeiser v. Hlinois Cent. R. R. Co. 6 Fed. Rep. 1. § 14 b. Time to file record.— The jurisdiction is not complete in the Federal court before the day prescribed by the statute, although a transcript has been tiled; i nor can the circuit court proceed until coj^ies of the proceed- ings are entered there.^ The provision as to the filing of the transcript is mandatory only as a matter of practice, and the defect may be cured by allowing it to be filed nunc pro tuno.^ It may be filed at any time within the period allowed by the State statute ;•* before the com- mencement of the next term after the removal ; ^ and it is sufficient, although a term devoted exclusively to crim- inal cases has intervened.<5 The j^roper time for entering in the circuit court " copies of the papers," etc., is on the first day of the next session after the filing of the petition, etc., but in any event the moving party has twenty days to file a copy of the record.' The only necessary conse- quence of failure to file the record by the first day of the next term after application, or within twenty days there- after, is to create a liability on the bond.s 1 Matt, of Barnesville & M. R. R. Co. 4 Fed. Rep. 10. 2 Fisk f. Union Pac. R. R. Co. 6 Blatchf. 362; Clippenger r. Mo. Val. L. lus. Co. 1 Fllppeu, 456; 8 Ch. L. N. 155. 3 Woolridgc v. McKenna, 8 Fed. Rep. 650. 4 Railroad Co. v. Koontz, 3 Morr. Trans. 34; King i'. Wortbington, 3 Morr. Trans. 101. 5 Bowen v. Kendall, 23 The Reporter, 538. 6 Jones v. Ocean S. N. Co. 11 Blatchf. 406. \ 7 Clippenger v. Mo. Val. L. Ins. Co. 1 Flippen, 456; S. C. 8 Ch. L. 8 Kidder v. Ftatteau, 2 Fed. Rep. 616. § 14 c. Duty of clerk.— If a clerk refuses to furnish copies of the record and proceedings, this court will allow 167 TDIE TO FILE APPLICATION. § 14 d parties to supply tliem;i and the petitioner may file a copy thereof in the circuit court.2 If he has done all that is necessary, he may perfect the removal by entering in the Federal court at the proper time copies of proper papers, and his appearance and special bail if necessary.3 The clerk of the State court has no right to withhold the transcript, although an appeal has been taken. ^ 1 Akerly v. Vilas, 2 Biss. 110. 2 Akerly v. Vilas, 2 Biss. 110. 3 Hatch V. Chicago, K. I. etc. Co. 6 Blatchf . 105. 4 Akerly v. Vilas, 2 Biss. 110. § 14 d. Certiorari.— A removal is effected by certiorari from the Federal court, or by order of the State court.i The writ is often resorted to as a means of effecting, pur- suant to law, the removal of the record from one court to another; 2 so a defect or omission in the transcript may be cured by certiorari.^ As where a copy of the record is incomplete; 4 but the writ is unnecessary when the record is already before the Federal court.^ The object of the writ is to require the State court to certify the copy of the record ;<* and requires the clerk to certify to the same;''^ and his authentication is sufficient without the certificate of the judge; ^ and the authentication may be on separate sheets of paper.9 The Federal court may issue a certiorari to the State court, to which a return that an appeal had been taken would be insufficient.io This section provides that this writ shall command the State court to make return of the record of the cause removed; 11 and the mandate that the State court shall proceed no farther in the cause is obligatory, as well on appeal as in the court of original jurisdiction. i^ The enforcement of proceedings for removal may be by mandamus; 13 but without express authority by statute, a Federal court cannot issue a writ of mandamus to the State court; I'l and no jurisdiction is conferred to issue a mandamus under this statute ;15 so the circuit court has no jurisdiction of a writ of certiorari § 15 ATTACHMENTS, ETC. 168 to a State court for the removal of proceedings by the State against a railroad company under tlie statute of tlie State.iG 1 Nat. Union B'k v. Dodge, 11 The Reporter, 641. 2 U. S. V. ilcKee, 4 Dill. 1; S. C. 3 Cent. L. J. 292; State v. Gibbons, 1 South. 44. 3 Dennis v. Alachua Co. 3 "Woods, 683; Cook v. Whitney, 3 Woods, 715. 4 Commercial Savings Bank v. Corbett, 5 Sawy. 172; Dennis v. Alachua Co. 3 Woods, 683; Cook v. Whitney, 3 Woods, 715. 5 Scott r. Clinton & Springfield R. R. Co. 6Biss. 529; S. C.8Ch. L.N. 210; In re Wells, 3 Woods, 128; S. C. 17 Alb. L. J. 111. G Broadnax v. Eisner, 13 Blatchf. 366. 7 Broadnax v. Eisner, 13 Blatchf. 366. 8 Osgood t'. Railroad Co. 6 Biss. 330. 9 Commercial & S. Bank v. Corbett, 5 Sawy. 172. 10 Ellermau v. New Orleans E. R. Co. 2 Woods, 120; Ins. Co. v. Morse, 20 Wall. 445. See Bell v. Dix, 49 N. Y. 232. 11 U. S. V. McKee, 4 Dill. 1 ; S. C. 3 Cent. L. J. 292. 12 Holden v. Putnam F. Ins. Co. 46 N. Y. 1. 13 Spraggins v. Countv Court, Cooke. 160, citing Ladd r. Tudor, 3 Wood. & M; and see Ex i)arte Turner, 3 Wall. Jr. 2.5«. 14 Houoh V. Western Trans. Co. 1 Biss. 425. See In re Cromie, 2 Biss. 160; Fisk v. Union Pacif. R. R. Co. 6 Blatchf. 362. 15 Amer. U. Tel. Co. v. Bell Telephone Co. 1 Fed. Rep. 698. 16 State V. Chicago A- A. R. R. Co. 6 Biss. 107. § 15. Attachments, iujunctions, and bonds re- main in force.— When a suit is removed for trial from a State court to a circuit court, as provided in the foregoing sections, any attachment of the goods or estate of the defend- ant by the original process shall hold the same to answer the final judgment, in the same manner as by the laics of such State they icould have been held to answer final judgment had it been rendered by the court in ivhich the suit was com- menced ; and any injunction granted before the removal of the cause against the defendant applying for its removal shall continue in force until modified or dissolved by the United States court into ivhich the cause is removed; and any bond of indemnity or other obligation, given by the plaintiff upon the issuing or granting of any attachment, writ of injunction, or other restraining process, against the defendant petitioning for the removal of the cause, 1G9 ATTACHMENTS, ETC. §§ 15 a-b shall also continue in full force and mail &e prosecuted by the defendant, and made available for his indemnitfj in case the attachment, injunction, or other restraining process be set aside or dissolved, or judgment be rendered in his favor, in the same manner and loith the same effect as if such at- tachment, injunction, or other restraining process had been granted, and such bond had been originally filed or given in such State court. Rev. Stats. § 646; 1 U. S. Stats. 79; 14 id. 306; 14 id. 55S; 15 id. 227; 14 id. 27; 12 id. 756; 14 id. 46; 14 id. 3^5; 4 id. 633; 14 id. 171; 16 id. 438, 439. § 15 a. In general.— The statutes of 1833, 1863, and 1868 are statutes where the right of removal depends on the subject-matter of the suit;i and under all three acts, the whole suit must be removed.^ The jurisdiction of the circuit court under the Act of 1863 is not taken away by the Act of 1867; 3 but so much of this section as j)rovides for the removal of a judgment where the cause was tried by a jury is in conflict with the Seventh Amendment of the Constittition, and is void."* Orders made in the State court, but not complied with, should be recognized and enforced after removal, unless set aside or modified in the Federal court.^ Original process includes any process is- suing out of the State court.6 This section is not affected by the provisions of Eev. Stats. § 720.^ 1 Fisk V. Union Pac. R. R. Co. 6 Blatchf. 362. 2 Fisk V. Union Pac. K. E. Co. 6 Blatchf. 362. 3 Lamar v. Dana. 19 Blatclif. 34. 4 Justices V. Murray, 9 Wall. 274. 5 Williams Mow. & R. Co. v. Raynor, 7 Biss. 245. 6 Barney v. Globe Bank, 5 Blatchf. 107. 7 Perry v. Sharpe, 8 Fed. Kep. 24. § 15 b. Attachments.— The circuit court becomes clothed with the powers of the State court under this section. 1 And attachments hold the property after re- moval; 2 and if the party had made application for an attachment, he may proceed to get an attachment after Desty removal.— 15. § 15 C ATTACHMENTS, ETC. 170 the removal.3 If an action by attachment against a non- resident is removed, the circuit court may ijroceed in the cause ;*i and if it takes precedence over an assignment under the State law the circuit court may enforce it; 5 but if it be a separate process, it will not carry with it a lien on the property in case of removal.^ A motion to dis- solve an attachment when authorized by the State law may be made in the circuit court, and if denied may be renewed, in the discretion of the court;'' such motion may be made after removal if authorized under the State laws and practice. § 1 Garden City Manuf . Co. v. Smith, 1 Dill. 305. 2 New England Screw Co. r. Bliven, 3 Blatchf 240. See, under Judiciary Act, Barney v. Globe Bank, 5 Blatchf. 107. 3 Bills V. N. O. St. L. & C. K. R. Co. 13 Blatchf. 227. 4 U. S. V. Ottuian, 1 Hughes, 313. 5 Clarke f. F. C. &M. Ins. Co, 21 Law Reporter, 394. 6 New England Screw Co. v. Bliven, 3 Blatchf. 240. 7 Garden City Manuf. Co. v. Smith, 1 Dill. 305. 8 Garden City Manuf. Co. v. Smith, 1 Dill. 305. § 15 c. Injunction.— An injunction issued by a State court remains in force till modified or dissolved by the circuit court;! and it may maintain, continue, modify, or dissolve the injunction issued by the State court.2 Upon the modification of an injunction it may require, as a con- dition, that defendant gave a bond to secure plaintiff against any injury which may result, or to perform the final decree concerning the same.3 Upon removal, an injunc- tion will not be dissolved upon the ground that the bill filed was not verified according to law and practice of the courts of chancery .4 An application to dissolve an in- junction could not be considered before the return day, where it involved the case as an entirety, or where it would change the status of the parties.^ Under the Act of 1866 an injunction issued by the State court was, ijjso facto, dissolved by the removal, as no mention is made of injunctions in said act. 6 1 Peters v. Peters, 41 Ga. 242. 171 ATTACIOIENTS, ETC. §§ 16-16 a 2 Watson v. Bondurant, 2 Woods, 166; Smith r. Schwed,6Fed. Rep. 455. 3 City of Portland v. Oregonian R. Co. 7 Pac. Coast L. J. 376. 4 Smith V. Schwed, 6 Fed. Rep. 455. 5 New Orleans City R. Co. v. Crescent City R. Co. 5 Fed. Rep. 160. 6 McLeod v. Duncan, 5 McLean, 343; Hatch v. Chicago, R. I. & P. R. R. Co. 6 Blatchf. 105. § 16. Process, not affected hy.— That lohen any suit shall be removed from a State court to a circuit court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by laio they woidd have been held to answer final judgment or decree had it been rendered by the court in which such suit was commenced; and all bonds, undertakings, or secu- rity given by either party in such suit prior to its removal shall remain valid and effectual notwithstanding said remov- al ; and all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to vjhich such suit shall be removed Act of March 3, 1875, § 4. § 16 a. Original process. — The intention of this section is to clothe the circuit court with the j^owers of the State court in administering remedies; i and if an attachment prevail over an assignment under the State law, it will have the same effect in the circuit court; ^ and if an in- junction has been granted, it remains in force until modi- fied or dissolved by the circuit court.3 "Original process " includes mesne process issuing out of the State court; so an attachment, though issued after summons, is pre- served.4 So a motion to dissolve an attacnment may be made after removal to the circuit court.^ It is the inten- tion of the law to authorize and require that the question of dissolving, continuing, or perpetuating an injunction shall be dealt with by the courts of the United States. 6 §§ 17-17 a REMANDING CAUSE. 172 1 Garden City Mauuf . Co. v. Smith, 1 Dill. .305. 2 Clarke v. F. C. & M. Iiis. Co. 21 Law Reporter, 394. 3 Northwestern D. Co. v. Corse, 4 Biss. 514; McLeod v. Duncan, 5 McLean, 342; Peters r. Peters, 41 Ga. 242. See Hatch v. Chicago, R. 1. & P. R. R. Co. 6 Blatchf. 105. 4 Barney v. Globe Banls, 5 Blatchf. 107. But see New England Screw Co. v. Bliven, 3 Blatchf. 240. 5 Garden City Manuf. Co. v. Smith, 1 Dill. 305. 6 Perry v. Sharpe, 8 Fed. Rep. 24. See In re County Judges of Virginia, 3 Hughes, 576. § 17. Dismissal, ■when.— That if, in any suit com- menced in a circuit court, or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brouf/ht or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly ivithin the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as X)laintiffs or defendants, for the purpose of creating a case cognizable or removable under this act ; the said circuit court shall proceed no farther there- in, but shall dismiss the suit or remand it to the court from, which it loas removed, as justice may require, and shall make such order as to costs as shall be just, but the order of said circuit court dismissiny or remanding said cause to the State court shall be revieioable by the supreme court on writ of error or appeal, as the case may be. Act of March 3, 1875, § 5. § 17 a. Remanding cause— "Want of jurisdiction. — The court will, without formal motion, take notice of a jurisdictional matter which is ground to remand the cause. 1 So if the petition and affidavit fail to bring the case within the statute, it is the duty of the circuit court to remand it.^ If the case does not substantially involve a controversy within the jurisdiction of the court, it will be the duty of the court to remand it.s Where the juris- diction is not clear as to whether a party is a necessary or formal party, and there is no controversy wholly be- 173 KEMANDIXG CAUSE. § 17 a tween citizens of different States which can be fully determined, the cause will be remanded.^ If the case is not one of Federal cognizance, it may be dismissed or remanded at any stage of the i^roceedings.^ The Federal court cannot proceed unless it has jurisdiction, whatever the condition of the parties may be,G and it must deter- naine for itself the question of jurisdiction.' Where the jurisdictional facts are contested the circuit court will not determine them on a motion to remand the cause. ^ The cause will be remanded where the proceeding is under a local statute, and could not be litigated in a United States court. 9 The objection to the want of jurisdiction, appearing on the face of the record must be taken by motion to remand.io The record, including the petition, must show jurisdiction in the circuit court, and any omission 11 not afterwards supplied is cause for a re- mand; but if the proceedings are so amended as to remove all objections, the cause will not be remanded.i^ That a suit may be removed to, although it could not be originally brought in, the Federal court, is not affected by the provision for the dismissal or remanding of suits not really and substantially involving a dispute or con- troversy within the jurisdiction of the circuit courts. i^ The cause cannot be remanded on the ground that it is not susceptible of decision after comx)lainant files a new bill in the circuit court. i^ 1 Beede v. Clieeney, 5 Fed. Rep. 388. 2 Deanistoun v. Draper, 5 BlatcM . 336. 3 Stevens v. Richardson, 13 The Reporter, 678; Railroad Co. v. Mississippi, 102 U. S. 135; Ryau v. Young, 20 Alb. L. J. 79; 8 The Re- porter, 229. 4 Evans v. Faxon, 10 Fed. Rep. 312. 5 Dennistoun v. Draper, 5 Blatchf. 336; Pollard v. Dwight, 4 Cranch, 421; Wood v. Matthews, 2 Blatchf, 370; Murray v. Patrie, 5 Blatchf. 343. 6 McMurdy v. Conn. G. L. Ins. Co. 9 Ch. L. N. 324; Young v. Andes Ins. Co. 3 Cent. L. J. 719. 7 Field v. Lownsdale, Deady, 288. 8 Dennistoun v. Draper, 5 Blatchf. 336; Hodson v. Milward, 3 Grant, 418. 9 Lehigh Co. v. Central R. R. Co. 4 Week. N. 187. § 17 b REMANDIXG CAUSE 174 10 Hoyt V. Wright, 4 Fed. Rep. 168. 11 Traftou v. Nougues, 4 Sawy. 178; Gold W. & W. Co. v. Keyes, 96 U. S. 199. 12 Edgerton v. Gilpin, 3 Woods, 277. 13 Warner v. Pennsylvania R. R. Co. 13 Blatclu. 231. 14 Carrington v. Florida R. R. Co. 9 Blatchf. 467. § 17 b. Motion to remand. — A motion to remand will not be entertained, unless from unavoidable neces- sity, to ascertain the approj^riate tribunal to hear and determine the case;i and the question of the right to remove cannot be raised on motion before trial, but at the trial it may.2 A plaintiff may move to dismiss, although two terms have elapsed since the filing of the trans- cript, if he has not appeared and pleaded.^ The party who alleges that the removal has been improperly made must make such fact clearly appear; 4 and the admission by an attorney of service of a rule to plead is an admission of the regularity of the proceeding.5 If a case has been improperly removed, the circuit court may remand it,o although the party seeking a removal has filed a cross bill in the circuit court against parties who are all citizens of a different State." So, also, if an order for removal was improperly made.^ That the proceedings sought to be removed are a mere mode of execution and relief inseparably connected Avith the original judgment, will be grounds for remand ;9 but otherwise, if they constitute an independent controversy, with new parties and new liabilities.^ When a cause is once removed, and there are no jurisdictional objections to its remaining, it will not be remanded for defects or irregularities that can be remedied, or which have not worked any prejudice to the opposite party. n "Where the cause is one of Federal cognizance, the right to have it remanded because of defects in the mode of remoA^al may be waived;!^ but there is no waiver of the right where the cause is not really and substantially one of Federal jurisdiction. 13 This section did not intend that the suit 175 REMAKDING CAUSE. § 17 b should be dismissed or remanded on acconnt of irregular- ities provided it satisfactorily appears that the circuit court has jurisdiction.!^ If the citizenship of the peti- tioner is in dispute, the question will not be decided on motion to remand. i^ "Where there is no allegation as to the citizenship of the plaintiff, the cause will be re- manded ;is or where citizenship is alleged in the jDresent tense; 17 and the objection will not be entertained if the information concerning his interest is vague or undefined, or there is delay in making the objection. is Where a suit is removed on account of alienage, it will not be remanded for the reason that the alien subsequer<<^ly be- came a citizen. 19 If the citizenship of i^etitioner is not seri- ously contested, the case may be remanded on motion.^'J Where a minor was a party, it was held that he was incapable of consenting to the removal, and the cause was remanded.2i The motion to remand admits the facts set out in the petition, 22 and the truth of the averments made in the petition cannot then be inquired into.23 if the petition and the record state, as grounds of removal, facts which are not true as to citizenshii:), or value where value does not appear in the pleadings, issue may be taken thereon by j)lea on abatement in the circuit court. ^4 On the determination of a State court that the petition is sufificient, it will be the duty of the Federal court to remand the cause.^s Wliere the prayer of the petition did not ask for a removal of the entire suit under the Act of 1875i the cause will be remanded.25 1 Dennistoun v. Draper, 5 Blatchf. 336. 2 Dennistoun v. Draper, 5 Blatchf. 386. 3 Price V. Sommers, 8 Cli. L. N. 290. 4 Hodson V. Millward, 3 Grant, 418. 5 Abranclies v. Schell, 4 Blatchf. 256. 6 Pollard V. Dwight, 4 Cranch,421; Urtetique v. D'Arcv, 9 Peters, 692; Ins. Co. v. Francis, 11 Wall. 210; Field v. Lownsdale, Deadv, 288; Galvin v. Boutwell, 9 Blatchf. 470; State v. Babcock, 4 Wash. C. C. 345. 7 Donohoe v. Mariposa L. & M. Co. 5 Sawy. 63. 8 Field v. Lownsdale, Deady, 288. § 17 C REMANDING CAUSE. 176 9 Bufordr. Strother, 10 Fed. Rep. 406; Boyd v. Bradsheet, 10 Fed. Kep. 406. 10 Buford V. Strother, 10 Fed. Rep. 406. 11 Dennis v. Alachua Co. 3 Woods, 683. 12 Price V. Sommers, 8 Ch. L. N. 290. 13 Price v. Sommers, 8 Cli. L. N. 290. 14 Osgood jj. Cliica^o etc. E. R. Co. 2 Cent. L.J. 275; 2 Cent. L. J. 283; 7 Cli. L. N. 241. See Parker v. Ovei'mau, 18 How. 141. 15 Heath v. Austin, 12 Blatchf . 320. 16 Abercrombie v. Dupins, 1 Cranch, 343; Wood v. Wagnan, 2 Cranch,9; Sherman v. Windsor Manuf. Co. 11 Fed. Rep. 852. 17 Beede v. Cheeney, 5 Fed. Rep. 388. 18 Hervoy v. Illinois M. R. R. Co. 12 Ch. L. N. 407. 19 Houser v. Clayton, 3 Woods, 273. 20 Galvin v. Boutwell, 9 Blatchf. 470. 21 Kingsbury v. Kingsbury, 3 Biss. 60. 22 Buttner v. Miller, 1 Woods, 620. 23 Texas v. Texas & Pac. R. R. 3 Woods, 30». 24 Coal Co. V. Blatchf ord, 11 Wall. 172 ; Heath v. Austin, 12 Blatchf. 320 25 Urtetique v. D'Arcy, 9 Peters, 692. 26 Clark v. Chicago, M. & St. P. R. R. Co. 11 Fed. Rep. 355; Sweet V. Same, 11 Fed. Rep. a55. § 17 c. For failure to file record.— Failure to file a record ou or before the first day of the next term of the Federal court does not deprive it of jurisdiction;! but if not filed in time, and the Federal court cannot cure the defect, the cause will be remanded. ^ In opposing a motion for remanding a cause, the affidavit by defend- ant's attorney that a failure to file the record was through inadvertence, must state the facts, from which the court may see that it was through inadvertence or accident.^ "Where the case is improvidently placed on the docket of the circuit court, with or without its order, objection may be made at any time;^ or if the record shows on its face that the case is not one which may be removed under the statutes.5 If a defect or omission in the record can be cured by certiorari, such defect is no ground for remand- ing the cause. 6 In case of non-appearance, the circuit court may remand.' 1 McLean v. Chicago, St. Paul etc. R. Co. 16 Blatchf. 3n9; Jackson V. Mutual Ins. Co. 3 Woods, 413; Hyde v. Phoenix Ins. Co. 2 Dill. 525; Clippinger v. Missouri Valley L. Ins. Co. 8 Ch. L. N. 115. See Kidder v. Featteau, 2 Fed. Rep. 616. 177 REIVIANDING CAUSE. §§ 17 d-e 2 Cobb V. Globe etc. Ins. Co. 3 Hu?hes, 452; Bright v. Milwaukee R. R. Co. 14 Blatchf. 366; Broadnax v. Eisner, 13 Blatchf. 366; McLean v. St. P. & C. R. R. Co. 20 Alb. L. J. 78; Wilcox v. FoUett, 10 Cb. L. N. 99. 3 McLean v. Chicago & St. P. R. R. Co. 16 Blatchf. 3u9. 4 Gate v. Babcock, 4 Wash. C. C. 344; McMurdy v. Conn. G. L. lus. Co. 9 Ch. L. N. 324. 5 Easton v. Rucker, 1 Marsh. J. J. 232. See Brownell v. Gordon, 1 McAll. 207. 6 Dennis v. Alachua Co. 3 Woods, 683; Cook v. Whitney, 3 Woods, 715. 7 Ward v. Arredondo, 1 Paine, 410. § 17 d. Sufficiency of bond.— A Federal court will not, on motion to remand, enter upon inquiry as to the sufficiency of the sureties on tlie bond;i and the cause will not be remanded on this ground ;2 nor because it is irregular or objectionable in form.'^ A Federal court will not, on motion, enter on the inquiry as to the sufficiency of the sureties on a bond approved by the State court.* If the conditions in the bond omit to provide for the pay- ment of costs, the cause will be remanded.^ 1 Van Allen v. Atchison, C. & P. R. Co. 3 Fed. Rep. 545. 2 Dennis v. Alachua Co. 3 Woods, 683. 3 Hervey v. 111. M. R. Co. 12 Ch. L. N. 407. 4 Van AJlen v. Atchison, C. & P. R. R. Co. 3 Fed. Rep. 545. 5 Torrey v. Grant Loco. Wks. 14 Blatchf. 269; McMurdy v. Conn. G. L. Ins. Co. 9 Ch. L. N. 324; Farmers' L. & T. Co. v. C. P. & S. R. R. Co. 12 Ch. L. N. 65. Contra : Baker v. Peterson, 4 Dill. 562 ; Dennis v. Ala- chua Co. 3 Woods, 683. § 17 e. Application too late.— The mere failure to move to remand at the same term at which the record is filed will not preclude making the objection at the next term,i nor is a neglect till a full term has passed a waiver of the riglit to do so. 2 If the removal is not applied for in time, tlie cause will be remanded. But the objection must be seasonably made, or it will be deemed waived. ^ And it may be conclusively waived by submitting to the jurisdiction of the circuit court, by taking testimony, and by delay for an unreasonable time to object.* Where the application is made too late the case will not be remanded.5 §§ 17 f-g REMAXDrXG CAUSE. 178 1 Kauffman r. MoNutt, 3 Cent. L. J. 408; Kain v. Texas Pac. R. R. Co. 3 Cent. L. J. 12; Carriugton v. Florida R. K. Co. 9 BlatcM. 467. 2 Young V. Andes Ins. Co. 1 Flippen, 599. 3 French v. Hay, 22 Wall. 244. 4 French v. Hav, 22 Wall. 244; Ames v. Colorado Cent. K. R. Co. 9 Ch. L. N. 132; Young v. Andes Ins. Co. 3 Cent. L. J. 12; Carrington v. Florida R. R. Co. 9 Blatchf . 467. 5 Kerting v. Amer. Oleograph Co. 10 Fed. Red. 17; Pratt r. Al- bright, 9 Fed. Rep. 634. § 17 f. Effect of remand.— On the order of the cir- cuit court remanding a cause, the jurisdiction of the State court, ijjso facto, re-attaches,i and if no steps are taken to reverse the judgment of the circuit court, the State court may proceed with the cause,2 and the State appellate tribunal cannot interfere by certiorari to oust the jurisdiction. 3 Where the Federal court declines to take jurisdiction and remand the cause, it does not oper- ate as a discontinuance, hut it is deemed to have been pending in the State court.-* If the circuit court does not obtain jurisdiction it cannot, on remanding the cause, give a judgment for costs, and order execution thereon.^ 1 Thatcher r. McWilliams, 47 Ga. 306; 50 Ala. 464; Germania F. Ins. Co. V. Francis, 52 Miss. 457. 2 Thompson v. Kendricks, 5 Ilayt. 115. 3 Jenkins v. Switzer, 33 Leg. Int. 232. 4 Germania F. Ins. Co. i'. Francis, 52 Miss. 457. 5 Mayor v. Cooper, 6 Wall. 247. § 17 g. Error and appeal.— The action of the cir- cuit court in remanding or refusing to remand is re- viewable on error or appeal in the supreme court of the United States.! "When a Federal court orders a cause remanded, the State supreme court will not issue a mandamus or other process to restrain the State court from proceeding with the cause until the revisory power of the United States supreme court has been invoked. ^ The appeal is intended as a substitute for mandamus, the former remedy .3 An order of the circuit court re- manding the cause because not filed in time is review- able in the supreme court, regardless of the amount 179 PROCEEDLNGS AFTER REMOVAL. §§ 18-18 a involved.^ A writ of error to the circuit court, issued out of the supreme court to review the action of the circuit court on the order to remand, will not operate as a stay of proceedings; it operates as a stay of execution. 5 On error the supreme court will direct it to be remand- ed; ^ and if the circuit court entertains jurisdiction where it has none, the supreme court will reverse its judgment, with direction to remand the cause.'^ Where the suit was removed, and the papers were afterwards destroyed by fire, and the parties stipulated that the transfer was made in accordance with the statutes, the supreme court will presume that requisite citizenship was shown.s 1 Ins. Co. V. Dunn, 19 Wall. 223; Gordon v. Longest, 16 Peters, 97; Green t'. Custard, 23 How. 484; Fasnacht v. Frank, 23 Wall. 416; Gaines v. Fuentes, 92 U. S. 10; State v. Johnson, 29 La. An. 399; Ayers V. Chicago, 101 U. S. 184; Germania F. Ins. Co. v. Francis. .02 Miss. 457; Atlas Ills. Co. V. BjTus, 45 Ind. 133; liailroad Co. v. Mississippi, 102 U. S. 135; Babbitt V. Clark, 2 Morr. Trans. 606; Hoadleyi;. San Francisco, 94 U. S. 4; Railroad Co. v. Wiswall, 23 Wall. 507; Aj^ers v. Chicago, 101 U. S. 184. 2 Ex parte State Ins. Co. of Alabama, 5 Ala. 464. 3 Babbitt v. Clark, 2 Morr. Trans. 606. 4 Babbitt v. Clark, 2 Morr. Trans. 606. 5 National Union Bk. of Dover v. Dodge, 11 Fed. Hep. 641; Suy- dam V. Adm'rs of Hoyt, 1 Dutch. 230. 6 Gibson v. Johnson, 1 Peters, 44; Pollard v. Dwight, 4 Cranch, 421, 7 Knappen v. Troy & B. Pv. Pv. Co. 20 Wall. 117 8 Railroad Co. r. Ramsey, 22 Wall. 322. § 18. Proceedings.— That the circuit court of the United States shall, in all suits removed under the provisions of this act, proceed therein as if the suit had been orirjinally commenced in said circuit court, and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said State court prior to its removal. Act of March 3, 1875, § 6. § 18 a. Jurisdiction.— To give the United States courts jurisdiction on the ground of citizenship, the controversy must be wholly between citizens of different States; i and unless the circuit court can take jurisdiction of the whole cause, it cannot be removed.^ Mere temporary residence § 18 a PROCEEDIXGS AFTER REMOVAL. 180 will not confer citizenship. ^ It will not be presumed that a party was a citizen at the institution of the suit merely because he was such at the time of the transaction out of which it grew.-i If the order of bail obtained on the oath of plaintiff states that defendant is not a citizen of the State, there is no need of any further proof of that fact.5 The decision of the State court is not conclusive as to the right of removal.6 The circuit court is not precluded thereby from determining for itself whether the removal was made in time." Whether the cause has been removed may be decided by either court, but in case of conflict the decision of the Federal court will prevail.^ The jurisdic- tion of the State court is not dislodged except by full compliance with the requirements of the statute. ^ The statute contemplates such cases only as are liable to re- moval.i" So if a partj^ is not strictly entitled to remove, the State court is bound to maintain its jurisdiction.!! For although a suit might haA'e been brought in the cir- cuit court, it cannot be removed unless provision is made for its removal by statute. i^ AVhere there is a Federal question involved in the suit, the circuit court has juris- diction without regard to the citizenship of the parties.i^ The questions involved need not all be of a Federal char- acter; if a single one exists it is sufficient.!'* A controversy between a maker of certain notes secured by trust deed and a national bank attempting to enforce such deed, is a Federal question. is The dissolution of an injunction in- volves no Federal question ; i6 nor a suit to recover State taxes. 1' So a suit to declare the right of a candidate elected under a State law involves no Federal question.i^ The question whether the title of the true owner of lands is extinguished by adverse possession is not a Federal question.!^ Where it appears at the trial that there is no question involved in the case which it is competent for the court to decide, the case will be dismissed.20 1 Walsh V. Memphis C, & N. W. E. R. Co. 6 Fed. Rep. 797. 2 State V. Babcock, 4 Wash. C. C. 345; Beardsley v. Torrey, 1 Wash. C. C. 286: Smith v. Kines, 2 Sum. 338. 181 PROCEEDINGS AFTEK REMOVAL § 18 b 3 Prentiss v. Barton, 1 Brock. 3S9. 4 Mining & Manuf. Co. r. Bradley, 4 Morr. Trans. 384. 5 Brown v. Crippen, 4 Hen. & M. 173. 6 Hunter v. Royal Canadian Ins. Co. 3 Hughes, 234; Cobb v. Globe Z\Iut. L. Ins. Co. 3 Hughes, 452. 7 Traders* B'k v. Tallmadge, 9 Fed. Rep. 363. 8 National Union B'k v. Dodge, 11 The Reporter, 641. 9 Burdick v. Hale, 7 Biss. 96. 10 .Smith V. Rines, 2 Sum. 338. 11 Gaughran v. N. "W. F. Ins. Co. 3 Biss. 485; Kingsbury r. Kings- bury, 3 Biss. 500; State v. C. & A. R. R. Co. OBiss. 107; Yuleer. Vose,!:4 U. S.539; Robinson v. Potter, 43 N. H. 188; Short v. "Wilson, 1 Bush, 350; Amory I'. Aniory, 96 U. S. 186; Cooley v. Lawrence, 5 Duer, 605; Brian v. Ponder, 23 Ga. 480; Redmond v. Ilussell, 12 Johns. 153; Fish v. Fish, 4 Martin N. S. 676; Darst v. Bates, 51 111. 439. 12 Dennistoun v. X. Y. & N. H. R. R. Co. 2 Abb. Pr. 415. 13 Crescent City L. S. Co. v. Butchers' Union Co. 12 Fed. Kep. 225. 14 Cohens v. Virginia, 6 Wheat. 379. 15 Swope V. Lefflngwell, 3 Morr. Trans. 602. 16 Fashnacht r. Frank, 23 Wall 416. 17 Berger v. Douglas Co. 5 Fed. Rep. 23. 18 Dubuelet r. State, 2 Morr. Trans. 559. 19 Poppe V. Langford, 3 Morr. Trans. 762. 20 Blanchard v. Sprague, 1 Cliff. 288. § 18 b. Procedure. — The procedure in the circuit court is as of original cognizance,^ and as in all cases originally brought therein.^ The jurisdiction of the cir- cuit court is in no sense appellate,-^ and questions passed upon in the State court cannot be reviewed.^ It will not review the orders and rulings made by the State court.^ If the State court refused to set aside a summons when tlie party is exempt from service, the decision on a plea in abatement cannot be reviewed or reversed. 6 The res is transferred with the case;"^ but funds in the hands of a sheriff are no part of the subject-matter, and the court lias no control over them; § but it may require, after re- moval, the receiver appointed by the State court to account for funds in his hands, and make him chargeable with interest.9 Property in custody in a replevin suit should be sold, and the proceeds brought into coart.io The suit brings along with it as an incident all the costs wliich accrued or attached under the State law. The acts Desty Removal.— IC. § 18 C TRIAL. 182 of Congress apply only to subsequent costs. u If the amount recovered is less tban Jive hundred dollars, the plaintiff cannot recover costs.i-^ If the petitioner has complied with the requirements of the act, he may, by answer, raise the question of loss of jurisdiction by reason of the proceedings for removal ; i-3 and it is not necessary for him to j)lead the proceedings to the jurisdiction.i'^ So u non-resident filing a jietition and bond for removal is, not a waiver of his right to object to the service on him while attending as a witness in another State.i-s 1 "Wertliein v. Continental R. & T. Co. 12 Fed. Rep. 690; Karns v. Atlantic & O. R. Co. 10 Fed. Kep. 309. 2 Bills V. X. O. St. L. etc. R. R. Co. 13 Blatchf. 227. See Howe S. M. Co. V. Edwards, 15 Blatclif. 403; Kelly v. Virginia P. Ins. Co. 3 Hughes, 449. 3 Bushnell v. Kennedy, 9 Wall. 387. 4 Brooks V. Farwell, 4 Fed. Rep. 166. 5 Smith V. Schwed, 11 The Reporter, 730. 6 Brooks v. Farwell, 4 Fed. Rep. 166. 7 Osgood V. Chicago etc. R. R. Co. 7 Ch. L. N. 241; 2 Cent. L. J. 275, 283. 8 Smith V. Schwed, 9 Fed. Rep. 483. 9 Hinckley v. Railroad Co. 100 U. S 153. 10 Dennistoim v. Draper, 5 Blatchf. 336. 11 Warren v. Ives, 1 Flippen, 356; Scupps v. Campbell, 3 Cent. L. J. 521. Contra: Coggill v. Lawrence, 2 Blatchf. 304. 12 Brooks v. Phoenix Mat. L. Ins. Co. 16 Blatchf. 182. 13 Shaft V. Peoenis M. L. Ins. Co. 67 N. C. 544; DeCamp v. N. J. M. L. Ins. Co. 2 Sweeny, 481. 14 Kanouse v. Martin, 15 How. 198. 15 Atchison V. Morris, 11 Fed. Rep. 582. § 18 c. Authority of court.— Proceedings had in the State court are not vacated by the removal. i The removal takes the case in the condition in which it was when the State court was deprived of its jurisdiction;^ and where an action commenced in a State court in which the distinction between legal and equitable pro- cedure is done away with is removed, it is removed to that side of the court where appropriate relief can be obtained.3 And for the purposes of jurisdiction the cir- cuit court has power to ascertain the real matter in dis- 183 TRIAL. § 19 pute, and arrange the parties on one side or the other.* The circuit court has no jurisdiction to enjoin the pro- ceedings of a State court.s Xor can it stay proceedings in the State court; 6 but it has jurisdiction to grant a provisional remedy before the first day of the next term on which a party must enter a copy of his record;" and it may protect a party by injunction against a judgment in tlie State court, rendered after a proper application for removaljS but ex ^jarte orders to restrain proceedings Avill be issued only where there is danger from irrepar- able injury from delay.^ The Federal courts may protect a party by injunction after a proper application to re- move has been made.i'' So the right of intervenors to an injunction follows as a matter of course. n An applica- tion to dissolve an injunction cannot be heard before the return day, when it involves the consideration of the case as an entirety, and the dissolution could not be granted without changing the status of the parties. i^ 1 Harrison Wire Co. v. "Wlieeler, 11 Fed. Rep. 206; Kern v. Huide- koper, 2 Morr. Trans. 617; Biggs v. Wolcott, 4 Cranch, 379. 2 Bell V. Dix, 49 N. Y. 232; Fisk v. Union Pac. R. R. Co. 6 Blatelaf. 362. 3 Commercial & Sav. Bk. v. Corbett, 5 Sawy. 172; following Malio- ney Mlu. Co. v. Bennett, 4 rsawy. 289. 4 French v. Hay, 22 Wall. 250. 5 People V. Detroit Sup. Ct. Judges, 41 Mich. 31. 6 French v. Hay, 22 Wall. 250. 7 In re Bamesville & Moorhead R. Co. 4 Fed. Rep. 10. 8 X. O. City R. R. Co. v. Crescent City R. R. Co. 5 Fed. Rep. 160. 9 Duncan v. Gegan, 101 U. S. 810. 10 Smith V. Schwed, 11 The Reporter, 730; Duncan v. Green, 101 U. S. slO. 11 Benedict v. Williams, 10 Fed. Rep. 208. i2 Pacific R. R. Co. V. Ketchum, 101 U. S. 29i5. § 19. Issues of fact -when to be tried by jury.— The trial of issues of fact in the circuit court shall be hij jury, except in cases of eeiuity and of admiralty and maritime j urisdiction, and except as othenoise provided in proceedings in bankruptcy, and by the next section. Rev. Stats. § 648. §§ 19 a-20 a trial. 184 § 19 a. Trial of issues of fact.— The trial of issues of fact shall be by jury, except in cases of equity or admir- alty and maritime jurisdiction.! A circuit court cannot order a peremptory nonsuit against the will of the plaint- iff.- Nor can it refer the case to a referee without consent of both parties.3 1 Town of Lyons v. Lvons Nat. Bank, 8 Fed. Rep. 371. See Howe S. M. Co. V. Edwards, 15 Blatchf. 4U5. 2 Castle r. BuUard, 23 How. 172; Elmore v. Grymes, 1 Peters, 469; D'WolftJ. Raband, 1 Peters, 476; Crane r. Morris, 6 Peters, 598; Silsby V. Foote, 1 BlatcM. 445. 3 Howe S. M. Co. v. Edwards, 15 Blatchf. 405; U. S. v. Eatlibone, 2 Paine, 578. § 20. Issues of fact tried by the court.— Issues of fact in civil cases in any circuit court may he tried and de- termined by the court, v)ithoiit the intervention of a jury, v^henever the parties, or their attorneys of record, file loith the clerk a stipulation in loriting waivinr/ a jury. The find- ing of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury. Rev. Stats. ^649; 13 U. S. Stats. 501. XoTE. — This section is not repealed by the Act of March 3, 1875, §3. Phillips v. Moore, 100 U. S. 208. Question discussed in Town of Lyons v. Lyons Nat. Bank, 8 Fed. Rep. 371; and § 700 of the Revised Statutes was enacted to carry out its provisions. Town of Lyons v. Lyons Nat. Bank, 8 Fed. Rep. 371. This section does not conflict with § 914, Revised Statutes, but leaves it in full force. "Wear V. Mayer, 6 Fed. Rep. G60. This section and § 700, Revised Statutes, relate only to the circuit court. Howard v. Crompton, li Blatchf. 333. § 20 a. "Waiver of jury trial. — There must be an agreement to waive a jury trial to enable the court to try an issue of fact;i but parties may waive without a written stipulation, yet they must tile their stipulation if they desire to secure the right of a review in the supreme court on any question of law arising in the trial.- Then 185 Di^^isiON OF opixiox. §§ 20 b-21 tlie stipulation must be in writing, and be liled with the clerk.3 The court has no power to order a reference and deprive defendant of his riglit.-* 1 Morgan v. Gav, 19 Wall. 81. See Robinson v. Mut. Ben. L. Ins. Co. 16 Blatclif. 201. ' 2 Kearny's Case, 12 Wall. 275. See Town of Lyons v. Lyons Nat. Bank, 8 Fed. Kep.371. 3 Kearny's Case, 12 Wall. 275. 4 Howe S. M. Co. v. Edwards, 15 Blatclif. 405. § 20 b. Findings by the court.— The findings may- be general or special ; i and whether general or special, they have the same effect as the verdict of a jury;'^ and there must be a finding, either general or special, to au- thorize a judgment; 3 but if the court omits to file a find- ing it may do so at a subsequent term.'* If a general finding includes mixed questions of law and fact, it con- cludes both, except so far as they may be saved by exception.5 All that is essential in a special finding is that it shall find the ultimate facts.6 It is not a mere report of the evidence, but a statement of the ultimate facts on which the rights of the parties must be deter- mined.'^ 1 Norris v. Jackson, 9 Wall. 125; Marye v. Strouse, 5 Fed. Rep. 497. See Insurance Asso. v. Boon, ^b U. S. 117. 2 U. S. V. Dawson, 101 U. S. 569; Xorrls v. Jackson, 9 Wall. 125. 3 Insurance Asso. v. Boon, 95 U. S. 117. 4 Insurance Asso. r. Boon, 95 U. S. 117. 5 Norris v. Jackson, 9 Wall. 125. 6 Mining Co. v. Taylor, 100 U. S. 37. 7 Norris v. Jackson, 9 Wall. 125. § 21. Division of opinion in civil causes— de- cision by presiding judge.— F/ieneter, in any civil suit or proceedinf/ in a circuit court held hy a circuit justice and a circuit judge or a district judrje, or hy a circuit judge and a district judge, there occurs any difference of opinion be- tween the judges as to any matter or thing to be decided, ruled, or ordered hy the court, the opinion of the presiding justice or judge shaJl prevail, and be considered the opinion of the court for the time being. Rev. Stats. § 650; 17 U. S. Stats. 196. §§ 22-22 a Dn-isioN of opln'io>\ 186 Note.— No civil suit can be taken to the supreme court except upon final judgment and on appeal or writ of error. Bobbins v. Fireman's F. Ins. Co. 16 Blatchf. 232. The district judge cannot sit in the circuit court in a case brought there by writ of error from the district court, and sucli cause cannot be brought to the supreme court on certificate of division. U. S. v. Lancaster, 5 Wheat. 434. Upon the hearing in the circuit court of an appeal from a judgment of the district court, the district judge who ren- dered the decision appealed from, although he may, for tlie information of the court, assign his reasons for that decision, is prohibited from voting or taking part in the judgment of the circuit court. United States t". Emholt, 11 Fed. Rep. 190, note. On appeal to this court, if it finds that the judgment as rendered is correct, it may simply affirm it; but if it is reversed, all questions certified which are considered in the final determination of the case should be answered. United States v. Reese, 92 U. S. 214. § 22. Division of opinion in criminal causes- certificate. — Whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court upon which the judges are divided in opinion, the point upon u-hich they disagree shall, during the same term, upon the request of either party , or of their counsel, he stated under the direction of the judges, and certified, under the seal of the court, to the supreme court at their next session; but 7iothing herein contained shall prevent the cause from pro- ceeding, if, in the opinion of the court, further proceedings can be had loithout prejudice to the merits. Imprisonment shall not be allowed nor x>unishment inflicted in any case where the judges of such court are divided in opinion upon the question touching the said imprisonment or punishment. Rev. stats. §651; 2 U. S. Stats. 159; 17 U. S. Stats. 196. § 22 a. Criminal causes.— A certificate that the judges differ in oiiinion is not sufficient unless it states the points on which they differ.^ The supreme court can- 187 Divisiox OF opixiox. §§ 23-23 a not take cognizance of a division of opinion on a motion to quash an indictment:- nor determine on a certificate of division whether or not a new trial should be granted. ^ So where the jury found the value of the property, and the judges, being opposed in opinion, certified the case, the laAV creates the offense and defines the i^uuishment, and no value need be found by the jury.-* 1 United States v. Bailev, 9 Peters, 267; United States v. Briggs, 5 How. 208; United States v. Ross, 3 Wheat. 600. 2 United States v. Rosenburgli, 7 Wall. 580. 3 United States v. Daniel, 6 Wheat. 542. 4 United States v. Tj'ler, 7 Cranch, 285. § 23. Division of opinion in civil causes— certifi- cate. — When a final judf/ment or decree is entered in any civil suit or proceeding before any circuit court held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and. a district judge, in the trial or hearing lohereof any question has occurred upon which the opinions of the judges v:ere opposed, the point -upon lohich they so disagreed shall, during the same term, be stated under the direction of the judges, and certified, and such certificate shall be entered of record. Rev. Stats. §652; 2 U. S. Stats. 159; 17 U. S. Stats. 19(j. § 23 a. Civil suits.— A certificate of division will not be granted in a civil suit where the matter in dispute does not exceed five thousand dollars.^ Although the motion under argument was addressed to the discretion of the court, yet if the questions involved the right of the mat- ter they may be certified;-^ but where the division of oiiinion arises from some proceeding subsequent to the decision, it cannot be certified.^ The time, the process, and the manner are subject to the absolute control of Congress.4 The questions which may be certified are those which arise on the trial, and such as may be presented on the final hearing or plea to the jurisdiction.^ The ques- tion certified must involve a distinct legal point, and suf- ficient facts must be set forth to show its bearing on the § 23 a Divisicx OF opixiox. 188 rights of the parties.^ A division on a motion within the discretion of the court does not present a point which can be certitied ; ■^ so a question whether a plaintiff in eject- ment may enlarge the term of the demise cannot be certi- iied;8 nor a question in any equity case relating to prac- tice;^ nor has this court jurisdiction on the question of costs. 10 The question certified must be a question of law and not of fact.i^ A certificate that the judges differ in opinion is not sufficient unless it states the points on which they differ. i^ There must be a distinct statement of what the question is;i3 ^ point of law, in precise form, upon a part of the case, settled and stated;!^ a single material point in the progress of the cause, i^ and not on the whole facts of the case;iG where the point of differ- ence is to be ascertained from the whole record, jurisdic- tion will be refused;!" and the cause remauded.is The power of review is strictly confined to the questions cer- tified.19 Where several questions are certified, one being of jurisdiction, the question of jurisdiction must be first determined.-'^ AVhere the supreme court is equally di- vided, the case will be remitted to enable the court below to take such action as it may be advised.-J- 1 Robbins r. Fireman's F. Ins. Co. 16 Blatclif, 232. 2 U. S. r. Chicago, 7 How. 185. See instances: Hepburn v. EUzey 2 Crancb. 445; Grant v. Raymond, 6 Peters, 220; Lutber v. Borden, 7 How. 1; Waymaui'. Soutbard, 10 Wbeat. 1. 3 Devereaux v. Marr, 12 Wbeat. 212. 4 Ex parte Crane, 5 Peters, 20o. 5 Davis V. Braden, 10 Peters, 2S6. 6 Havemeyertj. Iowa Co. 3 "Wall. 234. 7 Davis V. Braden, 10 Peters, 288. 8 Smitb V. Yaugban, 10 Peters, 3G6. 9 Packer v. Nixon, 10 Peters, 410. 10 Bank of U. S. v. Green, G Peters, 26. U Wilson V. Barnum, 8 How. 253; Dennistouu v. Stewart, 18 How. 565; U. S. V. City Bank. 19 How. 355; Brobst v. Brobst, 4 Wall. 2. 12 Wolf V. Usber, 3 Peters, 269; Sadler v. Hoover, 7 How. 646. 13 Sadler v. Hoover, 7 How. 646. 14 Daniel v. Railroad Co. 3 Wall. 250. 15 White V. Turk, 12 Peters, 238. 16 Adams v. Jones, 12 Peters, 207. 189 coKPOKATiONS. §§ 24-24 a 17 Wolf V. Usher, 3 Peters, 269; Sauuders r. Gould, 4 Peters, 392; Nesmitli v. Sheldou, 6 How. 41. 18 "Webster v. Cooper, 10 How. 54. 19 Ward V. Cliamberlaiii, 2 Black, 430 20 Sillimau v. Hudson Riv. K. Co. 1 Black, 582. 21 Hannauer v. Woodruff, 10 Wall. 482. § 24. Removal of suits against corporations or- ganized under a law of United Sta.tes.—An>j sidt commenced in any court other than a circuit or district court of the United States, ar/ainst any corporation other than a hanking corporation, orrjanized under a law of the United States, or against any tnemljer thereof as such member for any alleged liability of such corporation, or of such member as a member thereof, may be removed for trial in the circuit court for the district ichere 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 laiv of the United States. Such removal, in all other respects, shall be governed by the ptrovisions of the preceding section. Kev. Stats. §640; 14 U. S. Stats. 306; 15 U. S. Stats. 227. Note. — This section is not repealed by the Act of March 3, 1875. Kain v. Texas Pac. R. R. Co. 3 Cent. L. J. 12; Ely r. Northern Pac. R. R. Co. 36 Leg. Int. 164. § 24 a. Corporations created by congressional legislation.— This section applies only to a case in which the corporation or a member thereof was sole defendant. i It does not apply to corporations created by foreign gov- ernments or by the several States,'^ nor to national banks; 3 it expressly excludes national banks, but not so as to deprive them of the right of removal if their cause is within any other act relating to removals.^ For juris- dictional imrposes they are deemed citizens of the State in which they are located and have their place of busi- ness; 5 but neither under the Revised Statutes nor under the national banking act have receivers of national banks, as such, the right to remove causes.^ If suit is brought § 24 a CORPORATIONS. 190 against a banking company, it has no right to remove." Under this act a corporation seeking a removal must show that it was organized under the laws of the United States, or that there is a defense arising under the Fed- eral Constitution, or under some law or treaty of the United States.^ The fact that it was one organized under the laws of the United States is not alone suffi- cient.'-^ Proceedings for removal may be instituted by the corporation or by any member thereof. i** Where a member petitions, he must be one who was a member when suit was commenced; n and all must join in the peti- tion; i^ but each, or as many as see fit, may petition without waiting for the others. ^3 The petition must state that the cori^oration or member thereof has a defense arising under and by virtue of the Constitution, a treaty, or a law of the United States, but the matter thereof need not be stated ; i^ and if it says the defense arises under an act of Congress, it is sufficient.i-5 The particular part of the Constitution or of the act of Congress need not be set up.iG A suit under this section may be removed at any time before trial or final hearing.i^ The word "suit" embraces a suit brought by a State as well as by an individual.is If the corporation is created by the laws of the State it cannot remove the cause.i-' There is nothing to prevent an insolvent corjioration whose property is in the hands of a receiver to appear in an attachment suit, and remove the cause.-'^ The existence of a suit by stock- holders does not affect the right to remove.-i 1 Hazard r. Dnrand, R. I. 60n ; beld otherwise : Fisk v. Union Pac. K. K. Co. 6 Blatchf. 362; S. C. 8 Elatclif. 299. 2 Jones V. Oceanic St. Nav. Co. 11 Blatchf. 406. 3 Jones V. Oceanic St. Nav. Co. 11 Blatchf. 406. 4 Chatham Nat. Bank v. Merchants' Nat. Bank of West Va. 1 Hun, TO.'; Ludlow r.Kldd, 3 Ohio, 48. 5 Chatham Nat. Bank ?•. Merchants' Nat. Bank of West Va. 1 Hun, 702; Cooker. State Nat. Bank, 52 N. Y. 96; Davis r. Cook,9Nev. 134; Manuf. Nat. Baa'c r. Baack, 2 Abb. TJ. S. 232; S. G. 8 Blatchf. 137. See Ludlow V. Kidd, 3 Ohio, 48. 6 Bird's Ex'rs v. Cockrem, 2 Woods. 32. 7 Pettilon v. Noble, 7 Biss. 449. 191 CIVIL RIGHTS. § 2d 8 Northern Line P. Co. v. Binninger, 70 111. 571. 9 Ma?ee v. Union Pac. U. R. Co. 2 Sawy. 447. Contra : Turton v. Union Pac. R. K. Co. 3 Dill. 366. See Bauman v. Union Pac. Pi. K. Co. 3 Dill. 367. 10 risk V. Union Pac. Pv. R. Co. 6 Blatchf. 362. 11 Fisk V. Union Pac. R. R. Co. 6 BlatcM. 362; and ownership of stock is necessary to membership: Fisk r. Uuioa Pac. R. R. Co. 6 Blatchf. 362. See Burke v. Flood, 6 Sawy. 220; S. C. 1 Fed. Rep. 541; Hawes v. Contra Costa W. Co. 11 Fed. Rep. 93, note. A member not otherwise a party than as a member cannot remove the cause without consent of the corporation: Gard v. Durant, 4 Cliff. 113. 12 Gardw. Durant, 4 Cliff. 113. 13 Fisk V. Union Pac. R. R. Co. 8 BlatcM. 243. 14 Jones V. Oceanic St. Nav. Co. 11 Blatchf. 406; The Mayor v. Cooper, 6 Wall. 247; Dennistonn v. Draper. 5 Blatchf. 336; Clark v. Opdyke, 17 N. Y. Supr. 3S3; Magee v. Union Pac. R. R. Co. 2 Sawj-. 447. 15 Jones V. Oceanic .St. Xay. Co. 11 Blatchf. 406. 16 Kaiur. Texas Pac. R. R. Co. 3 Cent. L. J. 12. 17 Ely V. Northern Pac. R. R. Co. 36 Leg. Int. 164. 18 Texas v. Texas & Pac. R. R. Co. 3 Woods, 308. 19 Copeland v. 'SI. & C. R. R. Co. 3 Woods, 651. See Terry v. Insur- ance Co. 3 Dill. 408. 20 Second Nat. Bank v. N. Y. Silk Manuf . Co. 11 Fed. Rep. 532. 21 Scott V. Clinton & S. R. R. Co. 6 Biss. 520. § 25, Removal of causes against persons denied any civil rights, etc. — When any civil suit or criminal Xjrosecution is commenced in any State court, for any cause icJiatsoever, against any person loho is denied or cannot en- force in the judicial tribunals of the State, or in the part of the State ichere such suit or prosecution is pending, any right secured to him by any lau) providing for the equal civil rights of citizens of the United States, or of all j^ersons ivithin the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment, or other trespasses or wrongs, made or com- mitted by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refus- ing to do any act on the ground that it xoould be inconsistent vnth such law, such suit or prosecution may, upon the petition of such defendant, fded in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next circuit court to be held in the district where it is pending. Upon the § 25 CIVIL RIGHTS. 192 filing of such petition all farther proceedings in the State courts shall cease, and shall not be resumed except as herein- after provided. But all hall and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleadings, depo- sition, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the circuit court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process ; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the circuit co^trt, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and iipon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or compjlalnt in the cause ; and, in case of his default, may order a nonsuit, and dismiss the case at the costs of the pjlaintiff, and such dismiss- al shall be a bar to any further suit touching the matter in controversy. But if, lolthout such refusal or neglect of said clerk to furnish such copies and proof thereof , the petitioner for removal fails to file copies in the circuit court as herein provided, a certificate, under the seal of the circuit court, stating such failure, shall be given, and upon the production thereof in said State court, the cause shall proceed therein as if no petition for a removal had been filed. Kev. Stats. § 641; 16 U. S. Stats. 144; 14 id. 27; 12 id. 756; 14 id. 46. Note.— This section is uot in conflict with the Constitu- tion of the United States. Strauder v. West Ya. 100 U. S. 303; Fitzgerald v. Allman, 22 Alb. L. J. 218; State v. Dun- lap, 65 X. C. 491: Capehart v. Stewart, 80 N. C. 101. Un- der the Acts of 1863 and 1866, it is indispensable that the petition filed be properly verified. Florence v. Butler, 9 Abb. Pr. N. S. 63. That the Act of March 3, 1863, em- bodied in this section is constitutional, see McCormick 193 CIVIL RIGHTS. § 25 a V. Humphrey, 27 Ind. 144; McCormick v. Mayfield, 27 lud. 143; State v. Common Pleas, 15 Ohio St. 377; Hodgson v. Millward, 3 Grant, 412; Kulp v. Eicketts, 3 Grant, 420. § 25 a. Denial of civil rights.— The Constitution and laws of the United States make the rights and responsi- bilities, civil and criminal, of the white and colored races exactly the same ; i and Congress has power under the Fourteenth Amendment to secure the rights of the colored race, and enforce their recognition, by providing for the removal of causes into the Federal courts where these rights will be acknowledged, if denied to them in the State courts; 2 and this section was intended as a protec- tion to them against State action, and against that alone.^ It is only when some State law, ordinance, regulation, or custom hostile to these rights is alleged to exist, that a re- moval can be had under the first clause of this section. ^ A colored person cannot remove his cause unless he can show that the denial of his civil rights arises from an act of the civil government of the State. » This section does not apply where the denial of equal rights, or an inability to enforce them, results from the action of the judiciary; '^ it must be a denial or inability resulting from the Con- stitution or laws of the State;" and it refers to legal disabilities and legal impediments, and not to i^rivate in- fringements by prejudice or otherwise, when the laws themselves are impartial and sufficient, s 1 Virginia v. Elves, 100 U. S. 313. 2 Virginia v. Rives, 100 U. S. 313. 3 Virginia v. Rives, 100 U. S. 313. 4 In re Wells, 3 Woods, 128. 5 Fowlkes V. Fowlkes, 8 Cli. L. N. 41. 6 Ex parte Virginia, 100 U. S. 339. 7 Ex parte Virginia, 100 U. S. 339. 8 Strauder v. West Virginia, 100 U. S. 303; State v. Gaines, 3 Woods, 342, In re Wells, 3 WoodsT 128; Thomas v. State, 58 Ala. 365; State v. Gleason. 12 Fla. 190; Fitzgerald r. Allman. 82 N. C. 492; State v. Small, II Rich S. C. 262; State v. Dubuclet, 10 Ch. L. N. 132; Le Grand v. United States, 12 Fed. Rep. 577, note, 583. Contra: State v. Dimlap,65 N. C. 491. DESTY REMOVAL.— it. § 25 b cn'iL RIGHTS. 194 § 25 b. In criminal cases. — A criminal case cannot be removed prior to finding an indictment. i If indicted for an offense, a colored person may remove the cause if the State law allows none but white men to serve as jurors ; 2 but the mere fact that a grand or petit jury is not a mixed jury does not give the right to a removal; ^ but a statute singling out colored persons, and denying them the right to act as jurors, denies them the equal protec- tion of the laws.4 Color of ofHce is an apparent or prima facie right, an appearance of right or authority; 5 and autliority means a proper legal and constitutional authority.^ An officer who is acting in good faith under a warrant is acting under color of authority.^ An action for an arrest by the officer of a municipal corporation cannot be removed. 8 Although the petition states that he was an officer, yet it must also state the wrong charged, and that it was done by virtue of authority derived from the law.9 A person who denies participation in the arrest, and charges it upon a Federal soldier, cannot re- move. i'' ^Vhere a negro indicted for a felony ijetitions on the ground that persons of African descent were ex- cluded from the jury, the petition may be denied.i^ The trial of a cause for rape is removable. 12 1 Com. 17. Artman, 3 Gratt. 436; see People v. Murray, 5 Parker Cr. C. 577. 2 Strauder v. West Virginia, 100 U. S. 303. 3 Ex parte Virginia, 100 U. S. 339. Contra: Ex parte Burwell, 3 Hughes, 559. 4 Strauder v. West Virginia, 100 U. S. 303. See Cases of Coiinty Judges, 3 Hughes, 576. 5 Hodgson V. MiUward, 3 Grant, 412; Kulpr. Kicketts, 3 Grant, 420. 6 State V. Bliss, 3 Grant, 427. 7 State i;. Common Pleas, 15 Ohio St. 377; Hodgson v. MiUward, 3 Grant, 418. 8 'Woodson v. Fleck, Chase, 305. 9 Short V. Wilson, 1 Bush, 350 ; Skeen v. Huntington^ 25 Ind. 510. 10 Elfort V. Bevins, 1 Bush, 460. 11 Neal V. State, 103 U. S. 370. 12 NeaU'. State. 103 U. S. 370; Strauder v. West Virginia, 100 U. S. 303; Vii-ginia v. Eives, 100 U. S. 313; Ex parte Virginia, 100 U. S. 339. 195 CIVIL RIGHTS. § 25 c § 25 c, In general— Proceedings.— Under tins sec- tion each defendant may alone remove the cause. i Upon filing a verified petition the party is entitled to a removal as of course; 2 but the petition must show which of the rights secured under the civil rights bill have been denied by the State court; ^ it must aflirmatively show that the case is of a class described in the statute as removable.* The act provides for removing the whole suit, no matter who the parties are, nor what relief is sought.^ To entitle defendant to the order of removal, there must be some color of substance in the questions raised ; ^ and if counter affidavits are admitted without objection, he is not enti- tled to remove if the legal results of the case presented show that he has no rights." It is not necessary to obtain the assent of the State court under this section.^ The jurisdiction of the circuit court under this section was not taken away by the Act of 1867.^ On petition filed, the Federal court is entitled to assert its jurisdiction by proper process, and it is the duty of the State court to yield obedience thereto; lo and if the State court proceeds to try a party in a criminal case after the filing of the petition, the sentence will be void.^i The removal au- thorized is before trial or final hearing, but judicial in- fractions of constitutional rights, after trial commenced, are left to the revisory power of the Federal courts. i^ A suit to try title to a State office cannot be removed on the alleged grounds that by bribery and threats colored voters were prevented from voting.i^ An action of ejectment is not within the provisions of this section.i-* 1 State r. Common Pleas, 15 Ohio St. 377. 2 Siebrecht r. Butler, 2 Abb. Pr. N. S. 361; State v. Common Pleas, 15 Oliio St. 377. 3 State V. Gleason, 12 Fla. 190. 4 Patrie v. Mm-ray, 43 Barb. 323; Hodgson r. MiUwarcl, 3 Grant, 412. Fisk V. Union Pac. K. Ft. Co. 6 Blatchf . 362. 6 Jones r. Seward, 40 Barb. 563. 7 Short V. Wilson, 1 Bush, 350. 8 Bell V. Dix, 49 N. Y. 232. 9 Gazaway v. Dana, 10 Blatchf. 34. §§ 26-27 ACTIONS AGAINST OFFICERS. 196 10 In re Wells, 3 Woods, 123. 11 Ex parte Reynolds, 3 Hughes, 559. 12 Virginia v. Kives, 100 U. S. 313. 13 Dubuclet v. State, 103 U. S. 550 ;2 Morr. Trans. 509. 14 BigeloTV V. Forrest, 9 Wall, 339; Martin c. Snowden, 18 Gratt. 100. § 26. When petitioner is in actual custody of State court.— When all the acts necessary for the removal of any suit or prosecution, as provided in the pr-eceding sec- tion, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall he the duty of the clerk of said circuit court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said lorit, to take the body of the de- fendant into his custody, to be dealt with in said circuit court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file icith 01 deliver to the clerk of said State court a duplicate copy of said lorit. Rev. Stats. § 642; 14 U. S. Stats. 385; 12 id. 756; 14 id. 46; 14 id. 27. § 26 a. Habeas corpus. — The writ of habeas corpus must be allowed by the judge before it can be issued It may be issued by tlie circuit court for tbe purpose of se- curing jurisdiction.! 1 In re Wells, 3 Woods, 128. § 27. Removal of suits and prosecutions against revenue officers and officers acting under registra- tion laws. — When any civil suit or criminal prosecution is commenced in any court of a State against any officer ap- pointed under or acting by authority of any revenue laio of of the United States noio or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done wider color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such laic; or is commenced against any x>erson h'dding ^rroperty or es- tate by title derived from any such officer, and affects the 197 ACTIONS AGAIXST OFl-ICERS. § 27 validity of any such revenue law; or is commenced arjainst any officer of the United States, or other person, on account of any act done under the provisions of Title XXVI., •' The Elective Franchise" or on account of any right, title, or authority claimed by any such officer or other person under any of the said pjrovis ions — the said suit or prosecution may, at any time before tJie trial or final hearinrj thereof, be re- moved for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant to saidcircuit court, and in the following manner : Said petition shall set forth the nature of the sicit or prosecu- tion, and be verified by affidavit; and, together icitha certifi- cate signed by an attorney or counselor at law of so^me court of record of the State ivhere such suit or prosecution is com- menced or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against him, and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be pre- sented to the said circuit court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the cir- cuit court, and shall proceed as a cause originally com- menced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and exe- cution in the State court. When the suit is commenced in the State court by summons, subp(£na, petition, or other pro- cess except capias, the clerk of the circuit court shall issue a writ of certiorari to the State court, requiring it to send to the circuit court the record and ^jroceedAngs in the cause. When it is commenced by capias, or by any other similar form of proceeding by ichich a personal arrest is ordered, he shall issue a icrit of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the State court, or left at his office by the marshal of the district or his deputy, or by some person duly authorized thereto ; and thereupon it shall be the duty of the State court to stay all further proceed- § 27 a ACTIONS AGAINST OFFICERS. 198 i7i(/s in the cause, and the suit or xirosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the circuit court, and any further pro- ceedings, trial, or judgment therein in the State court shall be void. And if the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the tcrit of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt icith in the cause according to law and the order of the circuit court, or, in vacation, of any judge thereof; and if, 'upon the removal of such suit or prosecution, it is made to appear to the circuit court that no cojyyofthe record and proceedings therein in the State court can be obtained, the circuit court may allow and require the pjlaintiff to pro- ceed de novo, and to file a declaration of his cause of action, and the ptarties may thereupon proceed as in actions origi- nally brought in said circuit court. On failure of the jjlaintiff so to proceed, judgment of non prosequitur may be rendered against him, tcith costs for the defendant. Eev. Stats. § &43; 4 U. S. Stats. 633; 14 id. 171; 16 id. 433. XoTE.— This section ia not in conflict with the Consti- tution. Venahle v. Richards, 1 Hughes, 326; Tennessee V. Davis, 100 U. S. 257; State v. Port, 3 Fed. Rep. 119; Findley r. Satterfield, 3 Woods, 504; State v. Hoskins, 77 X. C. 530; State v. Deaver, 77 X. C. 555. And is not super- seded by the Act of March 3, 1875. Yenable v. Richards, 4 Morr. Trans. G89. Similar provisions are to be found in the Act of July 13, 18GG, relating to internal taxation, and in the Act of March 2, 1833, j)roviding for the collec- tion of duties on imports. Yenuble r. Richards, 4 Morr. Trans. G89. § 27 a. In general — This section contemplates a change of tribunal, and not of prosecuting oflScers.i The object being to take from the State court jurisdiction of all cases that fall within its terms as soon as they are commenced.- The jurisdiction of the circuit court in 199 ACTIONS AGAINST OFFICERS. § 27 b original suits between citizens of the same State in in- ternal revenue cases conferred by the Act of June 30, 1864, was taken away by the Act of July 13, 1866,3 but it is saved by the latter act, if the justice of the circuit court is of opinion that the cause would be removable under such act.* This section was previously held to be in force as to the removal of revenue causes, except those arising under the internal revenue laws.^ A re- moA^al under this section does not bring with it the State law as to costs. They are subject to the twelfth section of the Judiciary Act. 6 The government is responsible for clerks' charges for necessary services, on the removal of election cases." Where plaintiff appeals, defendant cannot remove.^ 1 State V. Emerson, 8 Fed. Rep. 411. 2 State V. Port, 3 Fed. Rep. 121. 3 Ins. Co. V. Ritchie, 5 Wall. 541. 4 City of Pliiladelphia v. Tlie Collector, 5 "WaU. 720. 5 Pej'ton V. Bliss, 1 VToolw. 170; Stevens v. Mack, 5 Blatchf. 514. 6 Wood f. Matthews, 2 Blatchf. 370. 7 In re Clerks' Charges, 5 Fed. Rep. 440. 8 Price v. Sommers, 8 Ch. L. N. 290. § 27 b. Suits removable.— Any law which provides for the assessment and collection of a tax to defray the expenses of government is a revenue law.i So an act that imposes a direct tax is a revenue law.- The duty paid for the carriage of letters by the agency of the gov- ernment is a branch of the public revenue.3 A suit against an officer may be removed, although he is sued individually, and is sought to be held as a wrong-doer ; * so an action of slander against a revenue officer is re- movable ;5 or an action against a collector of internal revenue to recover money alleged to have been illegally exacted; 6 or against a postmaster for a wrongful refusal to deliver a letter." The riglit to remove is given in any case provided for without regard to the amount in con- ta"0versy,8 and without regard to the expense or incon- § 27 C ACTIONS AGAINST OFFICERS. 200 venience ot the parties. 9 A suit by an informer against a collector to recover a share of a forfeiture may be removed.i'^ A commissioner, sued for fees illegally ex- acted, cannot remove the suit.n A member of a return- ing board is a State officer. i^ A marshal sued for tres- pass in taking goods on execution cannot remove. i^ 1 Peyton v. Bliss, 1 Woolw. 170. See Warner v. Fowler, 4 Blatcbf . 311. 2 Peyton v. Bliss, 1 Woolw. 170. 3 Warner v. Fowler, 4 Blatchf. 311. 4 Van Zandt i-. Maxwell, 2 Blatchf. 421. 5 Buttner v. Miller, 1 Woods, 620. 6 Philadelphia v. Collector, 5 Wall. 720; Salt Co. v. Wilkinson, 8 Blatchf. ao. Contra: Stevens r. Mack, 5 Blatchf. 514. 7 Warner v. Fowler, 4 Blatchf. 311. 8 Wood V. Matthews, 2 Blatchf. 370. 9 Wood V. Matthews, 2 Blatchf. 370. 10 VanZandtr. Maxwell, 2 Blatchf. 421. 11 Benchley v. Gilbert, 8 Blatchf. 147. 12 Ex parte Anderson, 3 Woods, 124. 13 McKee v. Rains, 10 Wall. 22. § 27 c. Criminal cases.— This section applies to crim- inal cases where the defense arises under a law of the United States.^ A criminal proceeding is not commenced till the warrant is issued;^ but is commenced as soon as the warrant is issued; 3 and when the warrant is issued, it is removable, although issued by a justice of the peace.^ If removed after arrest and before commitment, the pre- liminary examination may be taken before the court; ^ and if removed before indictment, the indictment may be found by the grand jury of the circuit court.6 A party indicted in a State court for an action done under color of the revenue laws may remove the cause into the Federal court;" but a jjerson indicted for maintaining a nuisance under the laws of a State cannot remove the cause. s If a criminal case is removed, it must be determined according to the law of the State.9 1 Findley t\ Satterfield, 3 Woods, 504; State v. Davis, 12 S. C. 528. 2 State V. Port, 3 Fed. Kep. 117. 201 ACTIOKS AGAINST OFFICERS. 27 d 3 State V. Bolton, 11 Fed. Rep. 217. 4 State V. Port, 3 Fed. Rep. 117; State v. Bolton, 11 Fed. Eep. 217, 5 State V. Port, 3 Fed. Rep. 117. 6 State V. Port, 3 Fed. Rep. 117. 7 Georgia v. O'Grady, 3 Woods, 469; Findlay v. Satterfleld, 3 Woods, 504; Tennessee v. Davis, 100 U. S. L'57; State v. Hoskins, 77 N. C. 530. 8 Com. V. Casey, 94 Mass. 214. 9 Tennessee v. Davis, 100 U. S. 257; Georgia v. O'Grady, 3 Woods, 469;Find.eyr. Satterfleld, 3 Woods, 504. § 27 d. Practice and procedure.— Under this section a removal may be had without regard to the amount in controversy.! The proceedings are confined to action in the circuit court; the statute addresses the State court wholly by inhibition .2 All that the statute requires is that it shall appear from the petition that defendant was sued on account of acts done by liim under the laws of tlie United States; 3 and the petition must show a case arising under such laws, and must show a defense thereto that, upon the facts, it may appear that some material question may arise under those laws.^ It must specify the act done ; ^ but it need not state the particular in-ocess or writ.6 This act applies to every case where the offense alleged is committed under the color of office;" and the question whether propertj^ was seized by defendant in the jierformance of his official duties is a matter involved in the merits, and not to be raised on a motion to dismiss the suit. 8 A suit against a T'lited States officer is not remov- able under the Act of 1833, on the ground that the act complained of was done under the instructions of the treasury department.^ The statute requires, when the proper petition and certificate have been filed, that the clerk shall file said petition, and "sliall enter" the cause upon the docket of the circuit court as pending, and "shall issue" duplicate writs, etc.i^ The criminal prose- cution is commenced, within the meaning of this section, as soon as a warrant has been issued, aud is then remov- able; ^ and the filing of the petition and the service on the State court of a duplicate of the writ of habeas corpus 27 e ACTIONS AGATNST OFFICERS. 202 cum causa, ipsofacio removes the prosecution. 12 It is the duty of the clerk in vacation to see that the petition con- tains the averments necessary to bring the case within the statute. 13 1 Wood V. Mattliews, 2 BlatcM. 370. 2 risk V. Union Pac. E. K. Co. 6 Blatchf . 362. 3 Abranches v. Schell, 4 Blatchf. 256. 4 Salem & Lowell R. R. Co. v. Boston & Lowell K. R. Co. 21 Law Re- porter, 210. 5 Ex parte Anderson, 3 Woods, 124. 6 Abranches v. Schell, 4 Blatchf. 256. 7 Venable r. Richartls, 1 Hughes, 326; Findley v. Satterfield, 3 Woods, 504. 8 Wood V. Matthews, 2 Blatchf. 370. 9 Vietor v. Cisco, 5 Blatchf. 128. But see Benchley v. Gilbert, 8 Blatchf. 147; Salt Co. v. Wilkinson, 8 Blatchf. 30. 10 In re Clarke's Charge, 5 Fed. Rep. 441. 11 'State V. Bolton, 11 Fed. Rep. 217. 12 State V. Port, 3 Fed. Rep. 124. 13 Salem & Lowell R. R. Co. v. Boston & L. R. R. Co. 21 Law. Rep. 210. § 27 e. Enforcing rem.o^dil.— Certiorari will lie to bring the record, and if the defendant is in custody Aa6eas corpus lies to bring the i^arty.i They issue for these pur- pose only,2 and their issuance is only a mode of notitica- tion to the State court.3 Service by leaving a duplicate with the clerk of the State court is sufficient;-* and if delivered to or left at the office of the clerk, the case is ipso facto removed,^ and no return is necessary. 6 An application for a certiorari must state facts sufficient to show a cause within the i)rovision of the statute; it is not sufficient to state facts generally, as that he intends to rely on the revenue laws of the State." 1 State r. Hoskins, 77 N. C. 530. See Com. v. Casey, 94 Mass. 214; People z;. Murray, 5 Parker Cr. C. 577. 2 Abranches v. Schell, 4 Blatchf. 256. 3 Fisk V. Union Pac. R. R. Co. 6 Blatchf. 362. 4 Abranches r. Schell, 4 Blatchf. 256. 5 Fisk V. Union Pac. R. R. Co. 6 Blatchf. 362. 6 Fisk V. Union Pac. R. R. Co. 6 Blatchf. 362. 7 Salem & Lowell R. R. Co. v, Boston & L. R. R. Co. 11 The Re- porter, 210. 203 SPECL\L PROVISIOXS. §§ 28-31 § 28. Removal of suits by aliens in a particular case. — Whenever a personal action has been or shall be brought in any State court by an alien against any citizen of a State loho is, or at the time the alleged action accrued xoas, a civil officer of the United States, being a non-resident of that State ivherein jurisdiction is obtained by the State court, by personal service of process, such action may be re- moved into the circuit court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a State court by the pro- visions of the preceding section. Rev. Stats. § 644; 17 U. S. Stats. 44. § 29.—/;?. all cases of removal of suits from the courts of the State of Georgia to the courts of the United States in the southern district of Georgia, such removal shall be to the United States courts in the division in lohich the county is situated from v:hich the removal is made ; and the time within which the removal shall be perfected, in so far as it refers to or is regulated by the terms of the United States courts, shall be deemed to refer to the terms of the United States courts in such division. § 7 of Act of Jan. 29, 1880; 21 U. S. Stats. 63. § 30.— In all cases of removal of suits from the courts of the State of Ohio to the courts of the United States in the southern district of Ohio, such removal shall be to the United States courts in the division in ichich the county is situated from which the removal is made ; and the time icithin ivhich the removal shall be perfected, in so far as it refers to or is regulated by the terms of the United States courts, shall be deemed to refer to the terms of the United States courts in such division. § 8 of Act of Feb. 4, 1880; 21 U. S. Stats. 64. § 31.— In all cases of removal of suits from the courts of the State of Tennessee to the courts of the United States in §§ 32-33 LOCAL STATUTES. 204 the eastern district of Tennessee, such removal shall he to the United States courts in the division in ichich the county is situated from which the removal is made; and the time with- in which the removal shall he perfected, in so far as it refers to or is regulated hu the terms of the United States courts, shall he deemed to refer to the terms of the United States courts in such division. g 8 of Act of June 11, 1380; 21 U. S. Stats. 171. § 32. Business of the circuit court for the two districts of Missouri transferred, how.— The circuit court for the eastern district of Missouri is vested with full and complete jurisdiction to hear, determine, and dispose of, according to the usual course of judicial proceedings, all suits, causes, motions, and other matters which were pending in the circuit court of the United States in and for the dis- tricts of Missouri at the time the said circuit court for the eastern district of Missouri loas created, on the eighth daij of June, eighteen hundred and seventy-two, and also all other matters which have since arisen that pertain to said suits or causes, and also to make all orders and issue of * all iirocesses lohich said circuit court of the United States in and for the districts of 3Iissouri might have done if it had not ceased to exist; and said circuit court for said eastern district of Missouri is vested icith jurisdiction and authority to do all and singular that may in the due course of judicial proceedings pertain to any of said suits, causes, or unfinished husiness as fully as the said circuit court in and for the dis- tricts of Missouri might have done if said circuit court had not ceased to exist. -Rev. Stats. § 653; 17 U. S. Stats. 476. § 33. Process issued out of former circuit court for Missouri. — The service of process, mesne or final, issued oiit of said circuit court of the United States in and for the districts of Missouri, which service ivas had after the eighth day of June, eighteen hundred and seventy-two, and all lev- * The worU of in the roll redundant. 205 LOCAL STATUTES. §§ 34-35 ies, seizures, and sales made thereunder, also all service, seiz- ure, levies, and sales made under any process lohich issued as out of said court after the said eighth day of June, eigh- teen hundred and. seventy-two, are made valid, and all said processes are to he decerned returnable to said circuit court of the United. States in and for the eastern district of Missouri, as of the return day thereof. Rev. Stats. § 654; 17 U. S. Stats. 476. § 34. Transfer of cases between eastern and ■western districts.— Z/^/iC/- of the circuit courts for the eastern and for the icestern district of Missouri may order any suit, cause, or other matter pending therein, and com- menced prior to the creation of said neio court, to be trans- ferred for trial or determination to the other of said circuit courts ichen, in the opinion of the court, said transfer ought to be made; and the court to lohich said transfer is made shall have as full authority and jurisdiction over the same from the date the certified transcript of the record thereof is filed as if the same had been originally pending therein. Rev. Stats. § 655; 17 U. S. Stats. 476. § 35. Custody of books, papers, etc., of circuit court of Missouri.— r/iai the clerk of the circuit court for the eastern district of Missouri, and his successors in office, shall have the custody of all records, books, papers, and prop- erty belonging or in any vnse appertaining to said circuit court of the United States in and for the districts of Missouri, and, as such custodians and the successors of the clerk of said last-named court, they are hereby invested vnth the same powers and authority vnth respect thereto as the clerk there- of had during the existence of said last-named circuit court. Said circuit court for the eastern district of Missouri is here- by made the successor of said circuit court of the United States in and for the districts of Missouri as to all suits, causes, and unfinished business therein, or in any wise per- taining thereto, except as hereinbefore provided. 17 U. S. Stats. 476; Rev. Stats. § 656. Desty Removal.— 18. §§ 36-36 a LOCAL statutes. 206 § 36. Circuit court for southern district of New York, how limited. — The original jurisdiction of the cir- cuit court for the southern district of New York shall not he construed to extend to causes of action arising loithin the northern district of said State. Kev. Stats. § 657; 3 U. S. Stats. 415. § 36 a. Jurisdiction.— The prorisions of this section extend to a suit in equity, founded on letters patent for an infringement occurring in the northern district of Kew York;i but the objection for the want of jurisdic- tion may be waived, and is waived in a suit in equity where it is not raised in tlie answer.2 This section does not exclude from the jurisdiction of the circuit court of the United States for the southern district of Kew York causes of action arising out of the State. 3 1 Hodge V. Hudson Eiver E. K. Co. 6 Blatchf. 85 2 Black V. Thome, 10 BlatcM . 66. 3 Wbeeler v. McCormick, 8 Blatchf. 268. PEECEDE]:^TS. PETITION AXD BOND. [Under Act of 1875, reported in Kemoval Cases, 100 U. S. 463.] In the Circuit Court of Delaioare County, loiva. The Delaware Hailroad Construction Co. vs. Lewis H. Meyer and Willia3i Dennison, Trustees. Now come your petitioners, Lewis H. Meyer and AVm. Dennison, trustees, and state : That the Delaware Kailroad Construction Company and all persons who have come in as intervenors in the above-entitled cause are citizens of the State of Iowa; that Lewis H. Meyer is a citizen of the State of New York, and William Dennison a citizen of the State of Ohio. That they have reason to believe and do believe that from prejudice or local influence they will not be able to secure justice, by reason of such prejudice or local influ- ence. That said cause can be fully and finally determined in the United States circuit court for the district of Ohio. That the amount in controversy in said cause amounts to more than the sum of five hundred dollars, exclusive of costs, and they make and file in this court a bond, with good and sufficient security, for their entering in sucli circuit court, on the first day of its next session, a copy of the records in said suit, and for i^aying all costs that may be awarded by said circuit court, if said court shall hold that said suit shall be wrongfully or imjproperly trans- ferred thereto, and also for the appearing and entering special bail in such suit, if special bail was originally re- 208' PRECEDENTS. quisite therein ; and they pray of said court to accept said petition and bond, and order the transfer of the said cause to the said circuit court of the United States. This petition was not signed or sworn to, but was ac- companied by a bond, as follows: In the Circuit Court of Delaware County, Iowa. Know all men by these presents, that we, Lewis H, Meyer and AYilliam Dennison, principals, and John E. Henry and Charles Whitaker, as sureties, are held and firmly bound unto the Delaware Railroad Construction Company, and all other persons whom it may concern, in the penal sum of one thousand dollars, to which payment we bind ourselves and each of us by these presents. Given under our hands this lifteenth day of May, 1875. The conditions of this obligation are these: The said Lewis H. Meyer and William Dennison have applied to the circuit court of said county to remove a certain cause pending in said court, wherein the Delaware Railroad Construction Company are plaintiffs, and the said Lewis H. Meyer, trustee, successor to John Edgar Thompson, and William Dennison, trustees, and many others are de- fendants, from the said circuit court to the circuit court of the United States for the district of Iowa: Xow if said Meyer and Dennison shall enter in the said circuit court of the United States for the district of Iowa, on the first day of the next term thereof, a copy of the record of said suit, and shall pay all the costs that may accrue or be awarded by said circuit court if it shall hold that said suit was Avrongf ully or improperly removed thereto, and shall also appear and enter special bail in said circuit court in said suit if special bail was originally required therein, then this obligation shall be void; otherwise, in full force. William Dexxisox and L. H. Meyer, Trustees. By Grant & Smith, Their Att'ys. C. Whitaker, John E. Henry, Sureties. BUKKE VS. FLOOD. 209 BuEKE VS. Flood. (Reported 6 Sawy. 220.) PETITION. [Under first clause of sec. 2, Stats. 1875.] In the District Court of the Twelfth Judicial District of the State of California, in and for the Cit)j and County of Sa7i Francisco. John H. Burke, Plaintiff, vs. James C. Flood, John W. jNLickay, James G. Fair, Pacific Wood, Lumber, AND Flume Company, and the Consolidated Virginia Mining Company, Defendants. To the Honorable the Twelfth District Court of the State of California : Your petitioners, James C. Flood, Jolm AV. Mackay, James G. Fair, Pacific ^Yood, Lumber, and Flume Com- pany, and the Consolidated Virginia Mining Company, respectfully show that they are the defendants in the above-entitled action, which was commenced on the day of October, 1878, and is now pending in the said court, and that at the time of the commencement of said action, the plaintiff, and also James C. Flood, the Pacific Wood, Lumber, and Flume Company, and the Consoli- dated Virginia Mining Company, three of the defendants named, were and still are, each and all of them, citizens and residents of the State of California; and the defend- ants John W. Mackay and James G. Fair were then and still are citizens and residents of the State of Nevada. Your petitioners further state that in the complaint in said action it is alleged that the plaintiff is a stockholder in the Consolidated Virginia Mining Company, defendant, and that the defendants James C. Flood, John W. Mackay, and James G. Fair were formerly directors in the said corporation, and while acting in such capacity were guilty of various breaches of trust in making illegal 210 PRECEDENTS. contracts ou behalf of the corporation, for their own profit and advantage, and in wrongfully using and dealing with the corporate property, for their own private benefit; and that the Pacific Wood, Lumber, and Flume Company, de- fendant, was at the time a corporation controlled by the said three defendants last named, and colluding and co- operating with them and each of them in the acts consti- tuting the alleged breaches of trust; and the relief sought is a recovery by the Consolidated Virginia Mining Com- pany, defendant, against said other defendants, of the damages alleged to have been sustained by said Consoli- dated Virginia Mining Company, by reason of the alleged wrongful acts and breaches of trust charged in the com- plaint. Your i^etitioners further state that the matter in dispute in said action exceeds the sum of five hundred dollars, exclusive of costs; that all of the defendants have ap- peared therein; but that the same has not been tried, nor has any answer been filed therein by any of the defend- ants, but the same is now pending on demurrer to the complaint. Your petitioners further aver that the said suit is one in which there can be a final determination of the contro- versy so far as concerns the said John W. Mackay and James G. Fair, without the presence of either of the other defendants as parties in the cause, the Consolidated Vir- ginia Mining ComjDany, named as defendant, being in fact only nominally a defendant, against whom no relief is sought, and whose interest in the controversy, so far as any exists, is identical with that of the plaintiff. Your i^etitioners further aver that the controversy in said suit, so far as it resx)ects said John W. Mackay and James G. Fair, is wholly between citizens of different States, and can be fully determined as between them. Your petitioners desire to remove the said suit into the circuit court of the United States for the District of Cali- fornia, in pursuance to the Acts of Congress in that behalf, BURKE VS. FLOOD. 211 provided and herewith offer their bond executed by of as surety in the penal sum of two thou- sand dollars, conditioned as by said acts of Congress re- quired. Your petitioners therefore pray 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 the District of California, pursuant to the Acts of Con- gress in such case made and provided, and that no further proceedings may be had therein, in this court ; and your petitioners will ever pray, etc. McAllisters & Bergix, Atty's and Solicitors for Petitioners. State of Caltforxli, ) City and County of San Francisco. ) John W. Mackay, being duly sworn, says that the facts stated in the foregoing i^etition are true. J. Mackay. Subscribed and sworn to before me, this 10th day of May, 1879. [seal.] Holland Smith, Notary Puhlic. Another petition (under Rev. Stats, sec. 639, second subd.) was filed in this case by two of the foregoing de- fendants who were non-residents, differing from the above petition only in the following phrases : Your petitioners, John W. Mackay and James G, Fair, respectfully show that they are two of the defendants in the above-entitled action. And each of your petitioners was then and still is a citizen and resident of the State of Nevada. That the defendant James C. Flood and your i^etitioners were formerly directors. Your petitioners further aver that the said suit is one in which there can be a linal determination of the contro- 212 PKECEDENTS. versy, so far as concerns both and eacli of your petitioners, ATitbout the presence, etc. Your iietitioners further aver that the controversy in said court, so far as it respects your petitioners, is wholly between citizens of different States, and can be fully determined as between them. Your petitioners desire to remove the said suit, in so far as concerns both and each of them, into the circuit court. BOND. Know all men by these presents, that we, John W. Mackay as principal, and Cornelius O'Connor, of the city of San Francisco, as surety, are hereby held and firmly bound unto John H. Burke, in the penal sum of two thousand ($2,000) dollars, lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves jointly and severally firmly by these presents. The condition of this obligation is such that if the defendants hereinafter named shall enter and file or cause to be entered and filed in the next circuit court of the United States in and for the District of California, on the first day of its session, copies of all process, plead- ings, depositions, testimony, and other proceedings in a certain suit or action now pending in the District Court of the Twelfth Judicial District in and for the city and county of San Francisco, State of California, in which John H. Burke is plaintiff, and James C. Flood, John W. Mackay, James G. Fair, Pacific Wood, Lumber, and Flume Company, and the Consolidated Virginia Mining Company are defendants; and shall do such other appro- priate acts as by the Acts 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 May 10th. 1879. J. Mackay, C. O'CONXOR. burke vs. flood. 213 State of California, / City and County of San Francisco, j ^^• I, Cornelius O'Conaor, of said county, the surety named in the foregoing bond, being duly sworn, do depose and say that I am a resident of the State of Cali- fornia, and a property holder therein, and am worth the sum of four thousand dollars over and above my just debts and liabilities, and exclusive of property by law exempt from execution, and that I have property in the State of California liable to execution of the value of more than four thousand dollars. C. O'Connor. Subscribed and sworn to before me this 10th day of ]\Iay, 1879. Holland Smith, [seal.] Notary Public. ORDER TRANSFERRING- CAUSE. In the District Court of the Seventeenth Judicial District of the State of California in and for the City and County of San Francisco. John H. Burke, Plaintiff, vs. James C. Flood, John W. IMackay, James G. Fair, Pacific Wood, Lumber, AND Flume Company, and Consolidated Yirginla. Mining Co^epany, Defendants. A petition having been filed by all the defendants in this cause on the 12tli day of May, 1870, praying for the removal thereof into the circuit court of the United States, Ninth Circuit, in and for the District of California, pursu- ant to the statutes of the United States in such cases made and provided, and the said petitioner having also made and tiled with said petition a bond, with good and sufficient surety, for their entering in said circuit court on the first day of its then next session, a copy of the record in this suit, and for paying all costs that may be awarded by the said circuit court, if said circuit court shall hold that their suit was wrongfully or imi)roperly removed 214 PRECEDENTS. thereby. Xow, on motion of McAllister & Bergin, at- torneys for all the defendants herein, it is hereby ordered that this court accepts the said bond and surety offered by the petitioner (the defendants), and that this cause be -wholly removed and transferred for trial, or further or other proceedings, into the said circuit court of the United States, Xinth Circuit, in and for the District of California. Dated June 2nd, 1879. S. B. McKee, District Judge of the Third Judicial District of the State of California, and acting Judge of the District Court of the Twelfth Judicial District of the State of California, in and for the city and county of San Francisco. NOTICE. In the Circuit Court of the United States for the District of California, Ninth Circuit. JoHX H. BcRKE, Complainant, vs. jAiiES C. Flood, John W. 3IACKAY, JA3IES G. FaIR, PACIFIC MiLL AND MIN- ING C03IPANY, and Consolidated Virginia Mining CoDJPANT, Defendants. Xo. 2,145. Please take notice that on 29th day of July. 1879, the plaintiff will move ths court, at the opening thereof on that day, or as soon thereafter as counsel can be heard, to remand said cause to the Twelfth District Court, from whence it came, on the ground that the said circuit court has no jurisdiction in the action, neither of the subject- matter thereof, nor of the defendants therein, nor of any of them. Said motion will be based on the papers on file in the cause. July 24th, 1879. s. w. holliday, John Trehane, Attorneys for Plaintiff. To Messrs. McAllister & Bergin, Defendants' Attor- neys. CUMMINGS VS. AXDERSOX. 215 ORDER REMAXDIXG CAUSE. John H. Burke et al. vs. James C. Flood et al. No. 2,144. This cause, coining on this day for further argument upon the motion to remand this cause to the district court of the Twelfth Judicial District, S. W. Holliday, Esq., appearing on behalf of said motion and complainants, and Curtis J. Hillyer, Esq., on behalf of the defendants and against said motion, was argued and submitted to the court for consideration and decision; and the same having been duly considered, it is ordered that said motion be and the same hereby is granted, and the cause is hereby remanded to the Superior Court of the city and county of San Francisco. On motion of Hall McAllister, Esq., on behalf of defendants, it is ordered that a stay of i)roceed- ings herein be granted for the period of twenty-four hours. Jan. 14th, 1880. CuMMiNGS VS. Anderson. [Eesident vs. Non-resident.] PETITION AKD ORDER REMOVING CAUSE. In the Superior Court of the Cittj and County of San Fran- cisco, State of California, Department 6. Daniel Cummln-gs, Plaintiff, vs. John Anderson, De- fendant. No. 5,022. The petition of John Anderson, the above-named de- fendant, shows to the court as follows : That the above suit was begun against your petitioner John Anderson, in the Superior Court of the city and county of San Francisco, State of California, by the filing of a complaint and the service of a summons and copy of the complaint therein, on the 26th day of August, 1881. 216 PRECEDENTS. That your petitioner has not yet filed his answer, but that, as to your petitioner, said cause is now pending. That said cause has not been tried, and that this is the lirst term of said Sui^erior Court at which the same could bj^ any probability be tried. That at the time said suit was begun, and at the present time, the plaintiff was and is a citizen and resident of the State of California, and the defendant John Anderson was and is a citizen and resident of the State of New York, That the matters in dispute in said suit, and for which said suit is brought, exceed the sum of five hundred (.?500) dollars, exclusive of costs. And the defendant hereby offers John Rosenfeld and B. Speier, of the city and county of San Francisco, State of California, as sureties for his entering in the circuit court of the United States for the district wherein said suit is pending, on the first day of the next session of said court, or before, a copy of the record in said suit, and for paying all costs that may be awarded by said circuit court, if said court should hold that said suit was wrongfully or im- properly removed thereto; and also for his appearing and entering special bail in such suit, if special bail was originally requisite therein; and for his complying in all respects with the provisions, in the premises, of the Act of Congress of the United States, passed March 3rd, 1875, entitled, "An Act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes." Wherefore defendant prays this honorable court that said case be removed into the circuit court of the United States, Xinth Circuit, District of California, and that this court proceed no farther in the premises. JOHX ANDERSON. W. H. L. Barnes, Attorney for Defendant. cummings vs. anderson. 217 State of California, | City and County of San Francisco. ) ^^" Jolin Anderson, being duly sworn, deposes and says that he is the above-named petitioner in the above-entitled ac- tion; that he has read the foregoing petition subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters that he believes it to be true. John Anderson. Subscribed and sworn to before me this 29th day of August, 1881. William Habney, [seal.] Notarrj Public. UXDERTAKIXG. Know all men by these presents, that I, John Anderson, A citizen and resident of the State of New York, as prin- cipal, and John Eosenfeld of the city and county of San Francisco, State of California, and B. Speier of the same place, as sureties, are jointly and severally held and firmly bound unto Daniel Cummings of the city and county of San Francisco, State of California, in the sum of five hundred (S500) dollars, for which well and truly to be paid unto the said Daniel Cummings, his heirs, exec- utors, administrators, and assigns, we bind ourselves, our heirs, executors, administrators, successors, and assigns, firmly by these presents. Sealed with our seals, and dated this 29th day of August, A. D. 1881. The condition of this obligation is such that if the said John Anderson, defendant in a suit now pending in the Superior Court of the city and county of San Francisco, State of California, shall enter in the circuit court of the United States for the Ninth Circuit, District of California, on the first day of the next session thereof, a copy of the record in said suit; and shall pay all costs that may be awarded by said circuit court, if said court shall hold that Desty Removal.— 19 218 PRECEDENTS. said suit was wrongfully and improperly removed tliereto; and shall also then appear and enter special bail in said suit, if special bail be requisite therein ; and shall enter appearance of said John Anderson in said court — then this obligation to be void; and otherwise to remain in full force and effect. In witness whereof the said obligors have hereunto set their hands and seals this 29th day of August, A. D. 1881. John Anderson. [seal.] John Rosenfeld. [seal.] B. Speier. [seal.] State of California, } City and County of San Francisco. | ^^• On the fourteenth day of October, A. D. one thousand eight hundred and eighty-one, before me, William Har- ney, a notary jDublic in and for said city and county, residing therein, duly commissioned and sworn, j)erson- ally appeared John Rosenfeld and B. Speier, known to me to be the persons described in, whose names are sub- scribed to, and who executed the within instrument, and they duly acknowledged to me that they executed the same. In witness whereof I have hereunto set my hand and affixed my official seal, at my office, in the city and county of San Francisco, the day and year last above written. William Harney, [seal.] notary Public. ORDER OF REMOVAL. Li the Superior Court of the City and County of San Fran- cisco, State of California, Department 6. Daniel Cummings, Plaintiff, vs. John Anderson, Defend- ant. No. 5,022. On the pleadings and proceedings herein, and on the petition and bond filed herein by the defendant John Anderson, under the i^ro visions of an Act of the Congress CUMMENGS VS. ANDERSON. 219 of the United States, passed March 3rd, 1875, entitled, "An Act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes," and on motion of W. H. L. Barnes, Esq., of counsel for defendant, it is ordered that the security offered by the said defendant John Anderson be approved, and that the State court proceed no farther in this cause, and that this cause be removed into the circuit court of the United States for the Ninth Circuit, State of California. Dated this 17th day of October, 1881. M. A. Edjviunds, Judge. NOTICE OF FILING TRANSCRIPT OF RECORD. In the Circuit Court of the United States for the Ninth Cir- cuit, District of California. Daniel Cummings, Plaintiff, vs. John Anderson, De- fendant. To Messrs. D. Sullivan and W. G. Holmes, Attorneys for Plaintiff. Dear Sir — You will please take notice that on the 17th day of October, A. D. 1881, by an order of the Superior Court of the city and county of San Francisco, State of California, this cause was duly transferred to the circuit court of the United States for the Ninth Circuit, District of California, and that on the 1st day of November, A. D. 1881, a transcript of the record in said case was filed in said circuit court. Yours, etc., W. H. L. Barnes, Def'ts Att'y. San Francisco, November 2nd, 1881. 220 PRBCEDEXTS. flALSTON" VS. SbQARON", [Resident plaintiff vs. non-resident defendant and resident defendant who lias disclaimed all interest in the action.] PETITIOX TO REMOVE CAUSE, UNDERTAKING AND ORDER. In the Superior Court of the City and County of San Fran- cisco, State of California. Lizzie F. Ralston, Plaintiff, vs. Wzlliam Sharon and Alexander D. Sbaron, Defendants. The petition of William Sharon, one of the above-named defendants, shows to the court as follows: That the above suit was begun against your petitioner, William Sharon and Alexander D. Sharon, in the Superior Court of the city and county of San Francisco, State of California, by the filing of a complaint and the service of a summons and copy of the complaint therein, on the 11th day of October, 1880. That the defendant Alexander D. Sharon tiled his answer in said cause on the twenty- fourth day of November, 1880. That your petitioner has not yet filed his answer; but that, as to your petitioner, said cause is now j)ending on his motion to strike out portions of the complaint herein; that said cause has not been tried, and that this is the first term of said Superior Court at which the same could by any probability be tried. That at the time said suit was begun, and at the present time, the plaintiff was and is a citizen and resident of the State of California, and the defendant William Sharon was and is a citizen and resident of the State of Nevada; and that the said defendant Alexander D. Sharon was and is a citizen and resident of the State of California. That the matters in dispute in said suit, and for which said suit is brought, exceeds the sum of five hundred dol- lars, exclusive of costs. That the defendant Alexander D. Sharon has no interest in said action or the matters in dispute therein, or in any of the property therein men- RALSTON VS. SHARON. 221 tioned, and has filed bis answer disclaiming any interest of any name or nature in the same, or in the property described therein, and the same is wholly and solely the property of the defendant William Sharon. And the defendant hereby offers James H. Dobinson and Robert F. Morrow, of the city and county of San Francisco, State of California, as sureties for his entering in the circuit court of the United States for the district wherein said suit is pending, on the first day of the next session of said court, or before, a copy of the record in the said suit, and for paying all costs that may be awarded by said circuit court, if said court should hold that said suit was wrongfully or improperly removed thereto, and also for his appearing and entering special bail in such suit, if special bail was originally requisite therein ; and for his complying in all respects with the provisions, in the premises, of the Act of Congress of the United States, passed March 3rd, 1875, entitled, "An Act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes." Wherefore, defendants pray this honorable court that said case be removed into the circuit court of the United States, Ninth Circuit, District of California, and that this court proceed no farther in the premises. Wm. Shakon, Lloyd, Xewlands, & Wood, AWfs for Deft Wm. Sharon. State of California, / City and County of San Francisco. ) ^^• William Sharon, being duly sworn, deposes and says that he is the above-named petitioner, and one of the de- fendants in the above-entitled action; that he has read the foregoing petition subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on 222 PRECEDENTS. information and belief, and as to those matters that he believes it to be true. AYm. Sharon. Subscribed and sworn to before me, this 24:th day of November, A. D. 1880. John J. INIone, Court Commissioner of the cit>j and county of San Francisco. Indorsed. Filed November 24:th, 1880. Wm. a. Stuart, Clei'k. By M. H. Weed, Deimty Clerk. UNDERTAKINa ON EEMOYAL OF CAUSE. Know all men by these presents, that I, William Sharon, a citizen of the State of Nevada, as princij^al, and James H. Dobinsou, of the city and county of San Francisco, State of California, and Robert F. Morrow, of the same place, as sureties, are jointly and severally held and firmly bound unto Lizzie F. Ealston, of the city and county of San Francisco, State of California, in the sum of five hundred (SoOO) dollars, for which well and truly to be paid unto the said Lizzie F. Ralston, her heirs, ex- ecutors, administrators, and assigns, we bind ourselves, our heirs, executors, administrators, successors, and as- signs, firmly by these presents, sealed with our seals, and dated this 18th day of November, A. D. 1880. The condition of this obligation is such that if the said William Sharon, one of the defendants in a suit now pending in the Superior Court of the city and county of San Francisco, State of California, shall enter in the cir- cuit court of the United States for the Ninth Circuit, District of California, on the first day of the next session thereof, a copy of the record in said suit, and shall pay all costs that may be awarded by said circuit court, if said court shall hold that said suit was wrongfully and improperly removed thereto ; and shall also then appear and enter special bail in said suit, if special bail be re- RALSTOX r.S. SHARON. 223 quisite thereiu; and shall enter appearance of said Wil- liam Sharon in said court— then this obligation to be void; and otherwise to remain in full force and effect. In -witness whereof the said obligors have hereunto set their hands and seals this 18th day of November, A. D. 1880. William Sharox. [seal.] Jas. H. Doben'sgn. [seal.] R. F. Morrow. [seal.] Indorsed. Filed November 24th, 1880. William A. Stuart, Clerk. By M. H. Weed, Deputy Clerk. ORDER OF COURT. In the Superior Court, Clt;/ and County of San Francisco, State of California. Lizzie F. Ralstox, Plaintiff, vs. Williaj^i Sharon and Alexander D. Sharon, Defendants. On the pleadings and proceedings herein, and on the petition and bond tiled herein by the defendant William Sharon, tinder the provisions of an Act of the Congress of the United States, passed March 3rd, 1875, entitled, "An Act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes," and on motion of W. H. L. Barnes, Esq., of counsel for defendants, it is ordered that the security offered by the said defendant William Sharon be approved, and that the State court proceed no farther in this cause, and that this cause be removed into the circuit court of the United States for the Ninth Circuit, State of California. J. F. Sullivan, Judge. November 24th, 1880. Indorsed. Filed November 24th, 1880. William A. Stuart, Clerk. By M. H. Weed, Deputy Clerk. 224 precedents. Moore vs. Menzies. [Citizens vs. Aliens.] PETITIOX FOR REMOVAL. In the Superior Court in and for the County of Marin, State of California. Warrex Duttox and A. D. Moore, Plaintiffs, vs. James D. Walker, Thomas JNIenzies, and Henry D. Har- rison, Defendants. No. 236. The petition of James D, Walker, one of the above- named defendants, shows to the court as follows: Tliat the above suit was begun against your petitioners, James D. Walker, Thomas Menzies, and Henry D. Har- rison, in the Superior Court of the county of Marin, State of California, by the tiling of a complaint, and the service of a summons and a copy of the complaint herein on the defendants. That your petitioners have not yet filed their answer, but that, as to your petitioners, said cause is now pend- ing, that said cause has not been tried, and that this is the first term of said Superior Court at which the same could by any probability be tried. That at the time said suit was begun, and at the present time, the plaintiffs are citizens and residents of the State of California, and the defendants are aliens and subjects of the United Kingdom of Great Britain and Ireland; the said defendant James D. Walker being a resident of the county of Marin, and the said Thomas Menzies and Henry D. Harrison residents of the county of Alameda, State of California. That the matters in dispute in said suit, and for which said suit is brouglit, exceeds the sum of five hundred (500) dollars, exclusive of costs. And these defendants hereby offer J. A. Jones and F. R. Catton, of the city and county of San Francisco, State MOORE VS. MENZIES. 225 of California, as sureties for their entering in tlie circuit court of the United States for the district wherein said suit is pending, on the first day of the next session of said court, or before, a copy of tlie record in said suit, and for paying all costs that may be awarded by said circuit court, if said court should hold that said suit was wrong- fully Qv improperly removed thereto; and also for their appearing and entering special bail in such suit, if special bail was originally requisite therein; and for their com- plying in all respects with the provisions in the premises of the Act of Congress of the United States, passed March 3rd, 1875, entitled, " An Act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other pur- poses." Wherefore defendants pray this honorable court that said case be removed into the circuit court of the United States, Ninth Circuit, District of California, and that this court proceed no farther in the premises. Jas. D. Walker. W. H. L. Barnes, Attorney for Defendants. State of California, ) City and County of San Francisco. | ^^• James D. Walker, being duly sworn, deposes and says that he is the above-named petitioner, and one of the de- fendants in the above-entitled action; that he has read the foregoing petition subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on in- formation and belief, and as to those matters that he believes it to be true. Jas. D. Walker. Subscribed and sworn to before me this 18th day of February, A. D. 1882. Geo, T. Knox, [seal.] Notary Public. 226 PRECEDENTS. ORDER OF REMOVAL. In the Superior Court in and for the County of Marin, State of Califorala. Warren Button and A. D. Moore, Plaintiffs, vs. James D. Walker, Thomas Menzies, and Henry D. Har- rison, Defendants. No. 236. On tlie pleadings and proceedings herein, and on the petition and bond filed herein by the defendants in the above-entitled action under the provisions of an Act of the Congress of the United States, passed March 3rd, 1875, entitled, "An Act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes," and on motion of W. H. L. Barnes, Esq., of counsel for de- fendants, it is ordered that the security offered by the said defendants James D. Walker, Thomas Menzies, and Henry D. Harrison be approved, and that the State court proceed no farther in the cause, and that this cause be removed into the circuit court of the United States for the Ninth Circuit, State of California. Dated this 11th day of March, 1882. Thos. J. Bowers, Sup. Judge. UNDERTAIONG. Know all men by these presents, that I, James D. Walker, as principal, and J. A. Jones of the city and county of San Francisco, State of California, and F. R. Catton of the same place, as sureties, are jointly and sev- erally held and firmly bound unto William Dutton and A. D. Moore, of the city and county of San Francisco, State of California, in the sum of five hundred (§500) dollars, for which well and truly to be paid unto the said William Dutton and A. D. Moore, tlieir heirs, executors, administrators, and assigns, we bind ourselves our heirs. MOORE VS. MENZIES. 227 executors, administrators, successors, aud assigns firmly by these presents. Sealed with our seals and dated this 18th day of Feb- ruary, A. D. 1882. The condition of this obligation is such that if the said James D. Walker, Thomas Menzies, and Henry D. Har- rison, defendants in a suit now pending in the Superior Court of the county of Marin, State of California, shall enter in the circuit court of the United States for the Jsinth Circuit, District of California, on the first day of the next session thereof, a copy of the record in said suit; and shall pay all costs that may be awarded by said cir- cuit court, if said court shall hold that said suit was wrongfully and improperly removed thereto; and shall also then appear and enter special bail in said suit, if special bail be requisite therein; and shall enter appear- ance of said James D. Walker, Thomas Menzies, and Henry D. Harrison in said court— then this obligation to be void; and otherwise to remain in full force and effect. In witness whereof the said obligors have hereunto set their hands and seals this eighteenth day of February, A. D. 1882. Jas. D. Walker, [seal.] J. A. Jones. [seal] F. R. Cattox. [seal.] State of California, ) City and County of San Francisco, j ^^• On the eighteenth day of February, A. D. one thousand eight hundred and eighty-two, before me, Geo. T. Knox, a notary public in and for said city and county, residing therein, duly commissioned and sworn, personally ap- peared James D. Walker, J. A. Jones, F. R. Catton, known to me to be the persons described in, whose names are subscribed to, and who executed the within instru- ment, and they duly acknowledged to me that they executed the same. In witness whereof, I have hereunto set my hand and 228 PRECEDENTS. affixed my official seal, at my office in the city and county of San Francisco, the day and year last above written. Geo. T. Knox, [seal.] Notain/ Public. County Clerk's Office, State or Californla., County of Marin. I, Geo. W. Davis, county clerk of the county of Marin, State of California, and clerk of the Superior Court, do hereby certify that I have compared the foregoing copy of the original undertaking on removal of cause in the within-entitled cause, and of the indorsements thereupon, with the original records of the same remaining in this office, and that the same is a correct copy thereof, and of the whole of said original record. Witness my hand and the seal of said court this 14th day of March, 1882. Geo. W. Davis, Clerk. [seal.] By Daniel T. Taylor, Deputy Clerk. NOTICE OF ke:moval. United States of A^ierica. Circuit Court of the United States for the Ninth Circuit, District of California. "Warren Dutton and A. D, Moore, Plaintiffs, vs. James D. Walker, Thomas Menzies, and Henry D. Har- rison, Defendants. To Hosmer p. McKoon, Esq., Plaintiffs' Attorneys. You will please take notice that on Tuesday, the llth day of March, 1882, by an order of the Superior Court of the county of Marin, State of California, this cause was duly transferred to the circuit court of the United States for the Ninth Circuit, District of California. W. H. L. Barnes, Defendants' Attorney. San Francisco, March 16th, 1882. TABLE OF OASES. The small superior figures correspond with the reference figures in the sections, and show the sentences to which the cases are cited. Abercrombie c. Dupins, 1 Cranch, 343, §§ 11 b 3; 17 b si. Ableman v. Booth, 21 How, 506; S. C. 3 Wis. 1, §§ 1 e 2; 1 f 2. Abranches r. Schell. 4 Blatchf. 256, §§ 11 ll W; 17 b 5; 27 d3, e; 27 e 2, \ Adams v. Board, McCalion, 235, § 1 d i^. Adams v. Jones, 12 Peters, 207, § 23 a ic. Adams Express Co. v. Trego, 35 Md. 47, § 11 f u, ^^. Akerly v. Vilas, 2 Biss. 110; S. C 2 Abb. 284, §§ 4 c S; 7 b 22; 10 m 5; 11 g 15; 11 i 2 ; H m 5, S; 14 c 1, 2, 4. Akerlv v. Vilas, 24 Wis. 165, § 11 f 2, 20. Alabama Gold L. Ins. Co. v. Girardy , 9 Fed. Eep. 142, § 1 ri6. Albright v. Empire Trans. Co. 18 Alb. L. J. 313, § 2 c 6, 7. Aldrich v. Crouch, 10 Fed. Eep. 305, §§ 7 b 20; 11 ds, 24; H e 10. Allegheny Co. v. Cleveland & P. E. Co. 51 Pa St. 228, §10 k^, 20. Allen V. Blunt. 1 Blatchf. 480, §§ 1 g 12, iS; 2 a2. s. Allen r. Eyerson, 2 Dill. 501, §§ 6 ai* ; 6 b 4; 10 q i; 11 b a5 Allin r. Eobinson, 1 Dill. 119, §§ 6 C S; 10 c - ; 10 m w. American Bible Soci. v. Grove, 101 U. S. 610, §§ 4 c "; 7 a 2; 7bi; 10 j^ 8; 10 pi-; 11 d i; 11 e 2:^; 11 g 6. Amer. Ins. Co. r. Canter, 1 Peters, 511, § 1 a^. Amer. U. Tel. Co. v. Bell Telephone Co. 1 Fed. Eep. 698, § 14 d 15. Ames V. Colorado Cent. E. E. Co. 4 Dill. 251; S. C. 4 Cent. L. J. 199; 9 Ch. L. N. 132, §§ 4 e i; 10 g 6; 11 d i; 17 Amory v. Amory, 96 U. S. 186; 36 N. Y. Sup. 520, §§ 4 d i4, 13; 10 q ', 6, 5; 11 b 1«, 10, S; 18 a 11. Anderson, Ex parte, 3 Woods, 124, §§ 11 b^; 27 bi2; 27 d^. Anderson v. Gerding, 3 Woods, 487, §§ 1 d i6; 10 o^'. Anderson r. Manuf . Bank, 14 Abb. Pr. 436, § 10 1 2. Destt eemoval.— so. 230 TABLE OF CASES. Anderson v. Shaffer, 10 Fed. Eep. 266, §§ 1 qS; 2 b2, s. Andrews, Ex parte, 40 Ala. 639, §§ 6 b i, 2; 6 C lO; 10 C 5; 10 j w. Andrews v. Garrett, 1 Flippen, 445, §§ 4 a 2; 10 g i. Andrews r. Garrett, 3 Cent. L. J. 797; S. C. Ch. L. N. 132, §§10g4; 10 ge. Andrews v. Smith, 5 Fed. Eep. 833, § 1 ris. Anonymous, 1 Dill 298, note, § 7 bs, 9. Anthony v. Carroll, 9 Off. Gaz. 199, § 1 g 15. Arapahoe Co. v. Kansas Pac. R. Co. 4 Dill. 277, §§ 10 k"; 10 ml, 21; 10 111; 10 oi, is. Arjo V. Mouteiro, 1 Caines, 248, § 5 a H Aroma, Town of, v. Auditor, 2 Fed. Rep. 33, § 10 m2o. Atchison v. Morris, 11 Fed. Eep. 682, § 18bi5. Atlas Mut. Ins. Co. v. Byrus, 45 Ind. 133, §§ 1 k i2; 17 g \ Atlee V. Potter, 4 Dill. 559, § 11 di3, i4. Att.-Gen. v. Eumford Wks. 9 Off. Gaz. 1062, § 1 gi3. Aurora v. West, (> Wall. 139; S. C. 25 Ind. 148, § 4 b2i. Ayer v. Carver, 17 How. 595, § 10 b is. Ayers v. Chicago, 101 U. S. 184, §§ 4 c lO; 10 n 6; 17 g i. Ayres v. Western R. R. Corp. 32 How. Pr. 351; S. C. 48 Barb. 132, §§ 5 a^i ; 10 U. Babbitt v. Clark, 2 Morr. Trans. 606, §§ 7 b20; 11 d^; 17 Bailey i;.' Amer. Cent. Ins. Co. 13 The Reporter, 571, § 10 13. Bailey v. New York Sav. B'k, 18 Blatchf. 77: S. C. 2 Fed. Rep. 14, § 10 n 12, 3-2. Baird v. Byrne, 3 Wall. Jr. 1, § 1 m c, o, 10. Baker v. Peterson, 4 Dill. 562, §§ 10 g^; 17 ds. Baker v. Portland, 5 Sawv. 566, §1 f is. Baker v. Riddle, Bald. 394, § 1 c3, I6. Baltimore & O. R. Co. v. Carv, 28 Ohio St. 208, §§ 1 k^; 10 k 4, 6^ 12. Bait. & O. R. Co. V. Harris, 12 Wall. 65, § 10 k25. Bait. & Ohio R. R. Co. v. Koontz, 3 Morr. Tr. 34, § 1 ku. Bait. & O. R. R. Co. v. New Albany R. R. Co. 53 Ind. 597, §7b2, 6. B'k of Omaha v. Douglas Co. 3 Dill. 298, § 1 ki3. Bank v. Deveaux, 5 Cranch, 61, §§1 aS; 1 k 3, 5; 1 lis. Bank v. Roberts, 4 Conn. 323, 1 f 5; 1 1 1, Bank v. Slocomb, 14 Peters, 60, ^§ 1 j H; 1 k 3. Bank v. Turnbull, 16 Wall. 190, § 10 bs. Bank of U. S. v. Daniel, 12 Peters, 32, § 4 bi7. Bank of U. S. v. Green, 6 Peters, 26, § 23 a 10. Bank of U. S. v. Martin, 5 Peters, 479, § 1 113. Bank of U. S. v. Northumberland B'k, 4 Wash. 0. C. 108, §111. TABLE OF CASES. 231 Bank v. Wistar, 2 Peters, 318, § 1 p i^. Bantou r. Wilson. 4 Tex. 400. § 1 ai. Barber v. Barber, 21 How. 582, § 1 c i3. Barbery. St. Louis etc. R. II. Co. 43 Iowa, 323, §§ 7 a^; 11 d2; llf22. Barclay i'. Levee Comm'rs, 1 AYoods, 254, §§ 1 k^, 16; 10 11; 11 s^; 11m 9, 11. Barnesville & Moorhead R. Co., In re, 4 Fed. Rep. 10, §§ 14 bi; 18 c^. Barnett v. Butterworth, 11 How, GG9, § 1 c^. Barney v. Baltimore, G Wall. 280, §§ 1 j '•'; 1 qS; 5 b 3; 10 n^: 10 pis. Barney v. Globe Bank. 5 Blatclif. 107, §§ 1 p^J, s^; Ik^; 10 a^ 2,; 10 cw; 10 k 2; 10 IS; 11 g^; 15 aC; 15 b2; 16 a 4. Barney v. Latham, 103 U. S. 205; S. C. 11 The Reporter, 721; 2 Morr. Trans. G38, §§ 6 note i; 10 i i*^; 10 m g, 13; 10 11 21; 10 O 1, 3, T, IG; 10 q 1'. Barrow v. Hunton, 99 U. S. 80, §§ 10 a 19; 10 b^. Barrowcliffe y. La Caisse Generale, 58 How. Pr. 131, §§ 10 d2; 10j9. Bates V. Days, 11 Fed. Rep. 529. §§ 10 ii3, i3; 10 ni5. Bauman r. Union Pacif. R. R. Co. 3 Dill. 337, § 24 a 9. Bean v. Smith, 2 Mason, 252, § 1 p 36. Beardsley v. Torrey, 1 Wash. C. C. 286, §§ 5 b i, C; 6 C^; 11 g 5; 18 a2 Beebe v. Armstrong, 11 Mart. 440, § 11 b i*. Beebe v. Cheeney, 11 The Reporter, 3G0; S. C. 5 Fed. Rep. 388, §§10ji; lib 24; 11 c w. Beecher v. Gillett, 1 Dill. 308, § 10 c s. Beede v. Cheeney, 5 Fed. Rep. 388; S. C. 11 The Reporter, 360, §§17ai; 17 b". Beery v. Chicago, R. L & P. R. Co. 64 Mo. 533, §§ 11 g 15; Hill; 10e«. Beerv v. Irick, 22 Gratt. 484, §§ 5 bi; 10 j 3; 10 pi"; 11 f25; 11 g 3. Bell v. Dix, 49 N. Y. 232, §§ 11 g lO; 11 j 5; 14 d^; 18 C 2; 25 C8. Benchley c. Gilbert, 8 Blatchf. 147, §§ 27 bH; 27 d^. Benedict v. Williams, 10 Fed. Rep 208, § 18 c n. Bennett v. Bennett, Deady, 300, § 1 a 3. Bennetts. Butterworth, 8 How. 124, § 1 d 5. Bennington v. Park, 50 Vt. 178, 1 o •*. Berger v. Douglas Co. 5 Fed. Rep. 23, §§ lOf i2; 101 is ; 18 a 1". Berlin v. Jones, 1 Woods, 638, § 11 b 19. Berrian v. Chetwood, 9 Fed. Rep. 678, f§ 10 a20; 10 i 2. Besser v. Munford, 63 Ga. 446, § 10 b ">. L'oli TABLE OF CASES. Best V. K Y. Life Ins. Co. 2 Cin. Rep. 329, §§ 11 b 30; H Biddle, Ex parte, 2 Mason, 472, § 1 c lo. Bigelow V. Forrest, 9 Wall. 339, §§ 10 c 7; 25 c i^. Bills V. N. O. St. L. etc. R. R. Co. 13 Blatchf. 227, §§ 11 k 8; 11 mS; 15 bS; 18 b2 Bingham v. Cabbot, 3 Dall. 19, 382, § 11 b3 Bird V. Murray, Cole. & C. Cas. 63, § 5 ai4. Bird's Ex'rs v. Cockrem, 2 Woods, 32, § 24 a 6. Bixby V. Couse, 8 Blatchf. 73, §§ 6 b3, 4; lo j 7, lOj iq p23. Black V. Thorne, 10 Blatchf. 66, § 36 a 2. Blackwell v. Brown, 1 Fed. Rep. 351, § 11 ei3. Blair v. West Point etc. Co. 7 Neb. 146, §§ 11 b 8; 11 gi5; llhis, H^2. Blake v. McKim, 103 U. S. 336, §§ 6 note i; 10 i 3; 10 n 1,2; 10 O 3. Blanchard v. Dwight, 12 Wend. 192, § 11 c6 Blanchard v. Sprague, 1 Cliff. 288. § 1 gS; 18 a 20. Blank v. Manuf. Co. 3 Wall. Jr. 196, § 1 g23. Blight V. Fisher, Peters C. C. 41, § 2 a^. Bliss V. Rawson. 43 Ga. 181, §§ 7 b-i; 10 p w, 8. Bliven v. X. E. Screw Co. 3 Blatchf. Ill, §§ 1 k3; 10 b2; 10 k 27; 11 g 5 Bloomer v. Gilpin, 4 Fish. Pat. Cas. 50, § 1 g^ i". Board of Foreign Missions v. McMaster, 4 Am. Law Reg. 529, § 10 p 1^. Board v. Kansas Pac. R. Co. 4 Dill. 277, §§ 7 a2; 10 o26, 7. Bobyshall v. Oppenheimer, 4 Wash. C. C. 482, § 1 p". Boggs V. Willard, 3 Biss. 256; S. C. 70 111. 315, § 11 f 27. Bollman, Ex parte, 4 Cranch, 75, § 1 n i*^. Bonaparte v. Camden & A. R. R. Co. Bald. 205, §§ 1 k^; 1 m 17, 14. Bonnafee v. Williams, 3 How. 574, § 1 p is. Boom Co. V. Patterson, 98 U. S. 403, § 10 c 12. Boone v. Iowa & M. Const. Co. 10 Fed. Rep. 401, § 10 o 20. Boucicault v. Hart, 13 Blatchf. 47, § 1 h -*. Boudurant v. Watson, 103 U. S. 281, §§ 10 a22, 23; H bu. Bowen v. Chase, 7 Blatchf. 255, §§ 7 b-, '■>, is, u, 17 ; H b35. Bo wen v. Kendall, 23 The Reporter, 538, § 14 b^. Boyce v. Grundy, 3 Peters, 215, § 1 C 12. Boyd V. Bradsheet, 10 Fed. Rep. 406, § 17 b9. Bradford v. Jenks, 2 McLean, 130, § 1 p i". Bradley v. Rhines, 8 Wall. 393, § 1 p^o. Bradley r. Williams, 3 Hughes, 26, § 1 p 3o. Bradstreet, Ex parte, 7 Peters, 634. § 1 di^. Bragg V. Tibbs, 44 Ga. 294, § 11 li 10. Breedlove v. Kicolet, 7 Peters, 413, § 1 ini4. Brian v. Ponder, 23 Ga. 480, § 18 a n. TABLE OF CASES. 233 Brice v. Somers. 1 Flippen, 574, § 11 fw 24. Bridges v. Sheldon, 7 Fed. Rep. 41, § 1 ri. Briges v. Sperrv, 95 U. S. 401, § 11 k 9. Briggs V. French, 2 Sum. 251, §§ 1 o i, "; 1 pi2. Bright V. Milwaukee B. R. Co. 1 Abb. K C. 14: criticised in 4 Cent. L. J. 492; S. C. 14 Blatch. 366, §§ 11 d22; 11 e23; 17 c2. Bristol V. Chapman, 34 How. Pr. 140, §§ 5 a.^; 11 a 9. British Prisoners, The, 1 Wood. & M. 66, § 1 b -. Broadnax v. Eisner, 13 Blatchf. 366, §§11 e iS; 14 de, T; 17 c 2. Broadway Bank v. Adams, 130 Mass. 431, § 10 a i^. Brobst r. Brobst, 4 Wall. 2, § 23 a ". Broderick's Will, 21 Wall. 503, § 1 c ii>. Brooks V. Bailey, 9 Fed. Rep. 438, § 1 j i. Brooks V. Farwell, 4 Fed. Rep. 166, §§ 2 a^; 18 b 6, 4. Brooks r. PhcEnix Mut. L. Ins. Co. 16 Blatchf. 182, §§ 4 b 23; 18 b 12 Brooks v. Stolley, 3 McLean, 523, § 1 g *, lo. Browel v. T. & B. R. Co. 3 Fed. Rep. 761, § 2 C 7. Brown v. Crippen, 4 Hen. & M. 173, §§ 11 c 4, 14; 11 16; 18 a 5. Brown v. Keene, 8 Peters, 112, §§ 1 m^; lib 3. Browne v. Arbuncle, 1 Wash. C. C. 484, § 1 o^. Browne v. Browne, 1 Wash. C. C. 429, § 1 o^. Browne v. Strode, 5 Cranch, 303, §§ 1 mi, 5; 5 b 12, Brownell v. Trov & B. R. R. Co. 3 Fed. Rep. 761, § 1 k n. Brownell v. Gordon, 1 McAlL 207, § 17 c^. Bruce v. Gibson, 9 Fed. Rep. 540. § 10 j 1, 2. Bryan V. Ponder, 23 Ga. 480, §§ 5 b 1, 15; n b 2s. Bryant v. Rich. 106 Mass. 180; S. C. 21 Wall. 41, §§ 5 b S; 10 j 7,10; 10 1123; 11 f 21. Bryant v. Scott, 67 N. C. 391. §§ 7 b 2i; 10 j S; 10 p 9. Buckman v. Palisades Land Co. 1 Fed. Rep. 367, § 10 j 6. Buckner v. Finley, 2 Peters, 586, § 1 p i^. Buford V. Strother, 10 Fed. Rep. 406, §§ 10 h 5; 17 b 9, lo. Bullard v. Bell, 1 Mason, 243, § 1 p i^ i^. Burch V. Davenport & St. P. R. Co. 46 Iowa, 449. §§ 6 note 2; 6 b 11; 10 j 10; 10 11 1, 3; 10 o i. '; 11 h 6. Burdick v. Hale, 7 Biss. 96. §§ 7 a2; liB a 9. Burdick v. Peterson, 6 Fed. Rep. 840; S. C. 11 The Re- porter, 829, §§ 10 o 1^; 11 b 2^; 11 e ». Burke v. Flood, 6 Saw v. 220; S. C. 1 Fed. Rep. 541; S. C. 4 Pac. C. L. J. 501, §^ 4 c 10; 10 j 3; 10 o i', iS; 24 a n. Burlington, P. & C. R. R. Co. v. X. A. & S. R. R. Co. 53 Ind. 597, §7 bs. Burnham v. 1). & M. R. Co. 4 Dill. 503, § 10 O 26. Burr V. Gregory, 2 Paine, 426, § 1 g 6, ". 234 TABLE OF CASES, Burson v. Kat. Park Bank, 10 lud. 173, § 11 f ^9. Burt V. Keves, 1 Flippeu, 61. §§ 1 r ^-i; 11 m ". Burts V. Loyd, 45 Ga. 104, § 6 C 20. Burwell, Ex parte, 3 Hughes, 559, § 25 b 3. Bushnell r. Kennedy, 9 Wall. 389, §§ 1 p i, 4- 10 1 1 15; llg4, 5, 8; iini s 18 b 3. Butler V. Farnsworth, 4 Wash. C. C. 101. § 1 k 1. Butterfield v. Home Ins. Co. 14 Minn. 410, § 11 i 6. Buttuer v. Miller, 1 Woods, 620, §§ 17 b ^i; 27 b 5. Bybee v. Hawkett, 5 Fed. Eep. 1, §§ 10 n i; 10 o u. Byers v. Fowler, 12 Ark. 218, § 1 a i-\ Byrdeck v. Hale, 7 Biss. 96; 8 Cli. L. X. 192, § 11 c 7. Byrne v. Holt, 2 Wash. C. C. 282, § 1 j 6, Cabrera, Ex parte. 1 Wash. C. C. 235, §§ 1 a3; 1 b 1. Calder v. Bull, 3 Dall. 399, § 1 e6, «. Calderwood v. Braly, 28 Cal. 97, § 5 bi. Calderwood v. Hager, 20 Cal. 167, §§ 5 bi, 6, 7^ 8; 11 b23. Callahan v. Louisville etc. E. Co. 11 Fed. Eep. 536, § 10 ke. Calloway r. Ore Knob Co. 74 X. C 200, § 10 mi, 14. Campbell v. Jordan, Hemp. 534, § 1 p^. Campbell v. Wallen, 1 Mart. & Y. 266, § 11 c «, n. Cape Giradeau E. E. Co. v. Winston, 4 Cent. L. J. 127, § 6 ci". Capehartu. Stewart, SOX. C. 101, § 25 note. Capron v. Van Xoorden, 2 Cranch, 126, § 11 b 3. Carpenter v. X. Y. & X. H. E. E. Co. 11 How. Pr. 481, §§ 5 a 11; 11 j 5. Carraher r. Brennan, 7 Biss. 497, §§ 6 note 2; 10 ni; 10 O 1, ", 26. Carrington v. Florida E. E. Co. 9 Blatchf. 467, §§ 17 a"; 17 e 1, 4. Carswell r. Schley, 59 Ga. 17. §§ 10 QiS; 11 b2o, 27; n ^8; 11 h 3, 1. Carter v. Tread well, 3 Story, 25, § 4 d i". Cary v. Curtis, 3 How. 236, §§ 1 aS, O; 1 b 4, Case V. Clarke, 5 Mason, 70, §§ 1 m^; 10 d<5. Case V. Douglass, 1 Dill. 299, § 10 p n, 12. Castle V. Bullard. 23 How. 172, § 19 a 2. Catlett r. Pacilic Ins. Co. 1 Paine, 5^)4, § 1 m^. Celluloid Manuf . Co. v. Goodyear D. V. Co. 13 Blatchf. 375. ^§lfii; Igii; 1 i 10. Central C. E. E. Co. v. Twenty-third St. E. E. Co. 54 How. Pr. 168, § 1 e 4. Cessel V. McDonald, 57 How. Pr. 175; S. C. 16 Blatchf. 150, §§4 6 4; lOpiS; 10qi2: 11 j 9. Chaffee v. Hay ward. 20 How. 208, § 2 b i. Chaffraix v. Board of Liquidation, 11 Fed. Eep. 638, § 10 n3i. TABLE OF CASES. 235 Chamberlain v. Amer. L. & T. Co. 18 N. Y. Supr. 370, §§ 11 g 11 ; 11 j 1, '->, 10. Chamberlain v. Eckert, 2 Biss. 126, § 1 pi^. Chambers v. Holland, 11 Fed. Rep. 209, §§ 10 ii2; 10 o3. Chandler v. Coe, 56 N. H. 184, § 11 f i^, '^^ Chapman v. Barger, 4 Dill. 557, §§ 10 b 13; 10 h^. Chappedelaine v. Dechenaux,4 Cranch, 308, §§1 m i, is, 16; Ips. Charter Oak Co. v. Star Ins. Co. Blatchf. 208, § 10 a 6, 14. Chatham Xat. Bank v. Merchants' Nat. Bank of West Va. 1 Hun. 702, §§112; 5 aiS; 24 a 1, 5. Cherokee Xa. v. Georgia, 5 Peters, 1, § 1 m n. Chester v. Chester, 7 Fed. Rep. 1, §§ 10 bi9; 10 n26; U b29. Chicago V. Gage, 6 Biss. 467: S. C. 8 Ch. L.N. 49, §§ 6 note 2; 10 n 2, 17, 18; 10 O 2, ',26. Chicago & N. \Y. R. R. Co. v. Chicago & P. R. R. Co. 6 Biss. 219, § Iks, 25. Chicago & N. W. R. Co. v. Whitton, 13 Wall. 270, §§ 7 a i; 10 k 25. Chicago B. & Q. R. Co. v. Welch, 44 Iowa, 665, § 11 e 13, Chicago & W. I. R. Co. v. L. S. & M. S. R. Co. 5 Fed. Rep. 19; S. C. 11 The Reporter, 323, § 10 ki5, 2\ 24. Chicago, St. L. & N. O. R. Co. v. McComb, 17 Blatchf. 371, §§ 1114; 10 j 1,6. Childress v. Emerv, 8 Wheat. 642, §§ 1 pS; 4 d". Chisholm v. Ga. 2 ball. 419, § 1 i 7. Chittenden v. State, 9 Fed. Rep. 226, § 10 h i. Claflin V. McDermott, 12 Fed. Rep. 375, § 10 b 5. Clark V. Chicago, M. & St. P. R. Co. 11 Fed. Rep. 355, §§ 6 note 3; 10n35; lOO^, 23; lib 42; 11 g 2, 12; 11112; 17 b 26. Clark V. Chicago, R. I. & P. R. R. Co. 11 Fed. Rep. 355, § 6 notei. Clark V. Delaware etc. Can. Co. 11 R. I. 36, § 14 a 3. Clark V. Dick, 1 Dill. 8, § 4 ai, s. Clark V. Janesville. 1 Biss. 98, § 1 p 33. Clark V. Opdvke, 17 N. Y. Supr. 383, §§ 10 hi; 10 n23; 11 h5; 24 a 14. Clark V. Smith, 13 Peters, 195, § 1 c 6, i^. Clarke v. Delaware & H. Can. Co. 11 R. I. 36, § 11 f « Clarke r. F. C. & M. Ins. Co. 21 Law Reporter, 394, §§ 15 b5; 16a2. Clarke v. Jones ville, 4 Am. Law Reg. 593, § 1 a^, Clarke r. Mathewson, 12 Peters, 164, § 4 di6. Clarke v. Navigation Co. 1 Story, 531, § 2 e 4. Clarkson v. Manson, 4 Fed. Rep. 257; S. C. 18 Blatchf, 443 §§4bi', 21; 10 el, 3,7, 236 TABLE OF CASES. Clearwater v. Meredith, 21 How. 489, §§ 1 j H; 5 b3; 10 11^. Clerks' Charges, In re, 5 Fed. Eep. 440, §§ 27 a"; 27 dio. Clippinger v. Missouri Val. L. Ins. Co. 8 Ch. L. N. 115, §§llac; 11 ji; 14 b^ s 17 ci. Clippinger v. :Missouri Val. Ins. Co. 26 Ohio St. 404, § 11 C 3:2, 33. Coal Co. V. Blatchford, 11 Wall. 172. §§ 1 j lo, u- 4 ^it; 10 p-5; 17 b^-*. Cobb r. Globe Mut. L. Ins. Co. 3 Hughes, 452, §§ 11 gi^'; 17 c^; 18 a c. Cobb V. X. E. Ins. Co. 6 Gray, 192, § 4 a 9. Codwise r. Gleason, 3 Day, 3, § 1 p -^. Coffee V. Planters' Bank, 13 How. 183, § 1 p -i, -3. Coffin V. Haggin, 11 Fed. Eep, 219, §§ 1 o 4; 1 r 13; 10 1 13, Coggill V. Lawrence, 2 Blatchf. 304, § 18 b n. Cohens v. Virginia. G Wheat. 264. §§ 1 ci; 1 e 1 2; 1 f i; liio; 10 f^; 10 m", H; 18 a i^. Colcord V. Wall, 2 Miles. 459, §§ 10 g S; 10 1 1. Cole V. La Chambre, 31 La. An. 41. §§ 11 dS; He 21. Colson V. Lewis, 2 Wheat. 377, § 12 a 2, 7. Commercial & Sav. B'k r. Corbett, 5 Sawy. 172, §§ 11 j 3- 14 a2; 14d4, 9; 18 cs. Commercial etc. B'k v. Slocomb, 14 Peters, 65, §§ 2 e^; 5 b3; 1011^3. Commercial Xat. B'k v. Summons, 6 Ch. L. N. 344; S. C. 8 id. 164, §§1 ki3; 1 1 4, '. Com. r. Artman, 3 Gratt. 43G, ^ 25 b 1. Com. V. Casev, 94 Mass. 214, §§ 27 cS; 27 ei. Conolly V. Tavlor, 2 Peters, 556, § 1 j2, 4 Connor r. Scott, 4 Dill. 242, §§ 10 f \ ^, \ 9; 11 b 35- H h 3; 11 j 1. Continental Ins. Co. v. Kasey, 27 Gratt. 216, §§ 1 k i^: 4 a 10; llf W 20. Cook V. Ford, 4 Cent. L. J. 560, §§ 5 note; 6 note 2 Cook V. Whitney, 3 Woods. 715, §§ 10 h 3; 10 p 7; 14 d3, 4; 17 C6. Cooke V. Seligman, 7 Fed. Eep. 263, §§ 10 j iS; 10 m -; 11 b 22, 31, 32; 11 c 23. So. Cooke V. State Xat. Bank, 52 N. Y. 96; S. C. 1 Lans. 494; 50 Barb. 339, §§ 112; 7 b^; 10 j 7; 10 p 27; 10 j lO; 11 j5; 24 a 5. Coolev V. Lawrence, 12 How. Pr. 176: S. C. 5 Duer, 605, §§5 a 15; 11 h J; 18 all. Cooper V. Condon, 15 Kan. 572, § 7 b 8. Cooper V. Galbrarth, 3 Wash. C. C. 546, §§ 1 j '; 1 ki; 1 ni4; 10 dc. Cooper V. Thompson, 13 Blatchf. 434, § 1 p 33. J TABLE OF CASES. 237 Copeland v. M. & C. R. R. Co. 3 Woods, 651, § 24 a w. Corbin v. Van Brunt, 4 Morr. Trans. 818, § 10 ui3. Corp. V. Vermilye, 3 Johns. 145, § 11 b i4. Cortes Co., The, v. Thanhauser, 9 Fed. Rep. 226, §§ 10 b »; 10 111. Cox V. East Teun. V. &G. E. R. Co. 62 Ga. 103, § 11 f 9, ^. County Judges, Cases of, 3 Hughes, 576, §§ 16 a 6; 25 b*. Covington D. Co. v. Shepherd, 20 How. 227, § 1 k 3. Cowles V. Mercer Co. 7 Wall. 118, §§ 1 k is, ii- 10 ks. Cragie?;. McArthur, 4 Dill. 474; S. C. 15 Alb. L. J. 120; 4 Cent. L. J. 273; 9 Ch. L. N. 156, §§10 a i-^; 10 a i3. Crane, Ex parte, 5 Peters, 206, §^ 11 gS; 23 a i. Crane v. Morris, 6 Peters, 598, § 19 a 2. Crane v. Eeeder, 15 Alb. L. J. 103, § 10 g 4, 6. Crane v. Reeder, 28 Mich. 527, §§ 5 a i; 10 p ", 15; 11 f 2 28. Crawford v. Burnham, 4 Am. L. T. 228, § 1 d 8. Crescent Citv L. S. Co. v. Butchers' Union Co. 12 Fed. Rep. 225," §18 a 13. Cromie, In re, 2 Biss. 160, § 14 d i4. Cropper v. Coburn, 2 Curt. 465, § 1 c n. Cross V. Del Valle, 1 Wall. 5, § 10 b is. Culbertson v. Wabash Nav. Co. 4 McLean, 544, § 1 k ». Culver V. Crawford Co. 4 Dill. 239, §§ 1 d 2, 4^ 6j 4 b 7; 10 e 4, 5, Cunningham v. Co. of Rales, 1 Fed. Rep. 274, § 1 r ?. Curtin v. Decker, 5 Fed. Rep. 385, §10 j 1, ". Curtin v. Decker, 11 The Reporter, 290, § 4 d 12. Daniel v. Railroad Co. 3 Wall. 250, § 23 a ". Dannmever v. Coleman, 11 Fed. Rep. 97, § 10 d 9. Danville Banking & T. Co. v. Parks, 88 111. 170, §§ 10 m 19; 11 d 1, 8. Darst V. Bates, 51 111. 439, §§ 6 b H; 11 b i^; 11 C 21; 18 a 11. Dart V. Arms, 19 How. Pr. 429, § 5 a i^. Dart V. McKlnney, 9 Blatchf. 359, §§ 11 f 22 24^ 23, 29. n m 3, 5, 9. Dart V. Walker, 4 Daly, 188; S. C. 43 How. Pr. 29, §§ 6 b 3; 10 j 3; 10 PS 21; 10 q §, 16; 11 b 37, 33 ; U f 28. Dartmouth Coll. v. AVoodward, 4 Wheat. 625, § 1 e c. Davies v. Lathrop, 12 Fed. I'.ep. 353, § 10 c n. Davis V. Braden, 10 Peters, 286, § 23 a s, 7. Davis V. Cook, 9 Nev. 134, §§ 1 1 2; 5 a i; 5 b i3; 10 O is- 10 p 15; 10 q 9, 12; 11 b 23; 24 a 5. Davis V. Life Asso. of America, 11 Fed. Rep. 781, § 1 r i» Davis V. Packard, 6 Peters, 41; 7 Peters, 276, § 4 a 9. Day V. Newark Manuf'g Co. 1 Blatchf. 628, §§ 2 b i; 2 c i. De Camp v. N. J. M. L. Ins. Co. 2 Sweeny, 481, §§ 1 k 12 7 b 4; 11 b 2, 3G. 11 c 27; 11 h 8; 18 b 13. 238 TABLE OF CASES. Decker v. New York B. & P. Co. 11 Blatchf . 76, §§ 2 c i ; 2 el". De Laveaga v. Williams, 5 Sawy. 573, §§ 1 o 2, 4; iq 1 7. Delaware R. Constr. Co. v. D. & St. P. E,. Co. 46 Iowa, 406, §§ 11 b 46; 11 e 25; 11 h 6; H i 9. Dennick r. Eailroad Co. 103 U. S. 11, § 1 r i. Dennis v. Alachura Co. 3 ^Yoods, 683, 5§ 7 a 2; 7b': 11 b31, 33; lie 15; 14d3, 4; 17 b 11; 17 5; 17 d 2, 5. Dennison v. Lamed, 6 McLean, 496, § 1 p 23, Denniston?'. Potts, 19 Miss. 35, §§4 d S; 5 b i; 10 b 2; 10 d4, 8;llgO. Dennistoun v. Draper, 5 Blatchf. 336, §§ 10 c «; 11 i"; llgio; 17 a 2, 5^ 8; 17 b 1,2; 18 b !« ; 24ai4; 10 cs. Dennistoun v. N. Y. & N. H. E. E. Co. 1 Hilt. 62; S. C. 2 Abb. Pr. 278, 415, §§ 1 k 3; 5 b 2; 5 b 5; 10 k 4; 18 a 12. Dennistoun v. Stewart, 18 How. 565, § 23 a n. Deshler v. Dodge, 16 How. 622, § 1 p e, 7. Deveraux v. Marr, 12 Wheat. 212, § 23 a 3. Dexter r. Smith, 2 Mason. 303, § 1 p 35. Dibble r. Augur, 7 Blatchf. 86, § 1 g 21. Diggs V. Wolcott, 4 Cranch, 379, § 18 C 1. Disbrow r. Driggs, 8 Abb. Pr. 305, note, §§ 4 b 4; 5 a 19, 20; 11 h 7, 8^ n Dodge r. X. W. U. Pack. Co. 13 Minn. 458, § 7 b ^ n. Dodge V. Perkins, 4 Mason, 435, § 4 d i". Dodge V. Woolsey, 18 How. 331, § 1 c is. Donobue v. Mariposa L. & M. Co. 5 Sawy. 163; S. C. 6 Cent. L. J. 487, §§ 6 c 3; 10 b i5, 20; 10 u 3; 17 b \ Doremus v. Bennet, 4 McLean, 224, § 1 j i3. Douglas V. Caldwell, Co X. C. 248, § 11 f 25, 26. Do well V. Oris wold, 5 Sawv. 39, § 1 f 7, 8, 13. Doyle V. Continental Ins." Co. 94 U. S. 535; 15 Alb. L. J. 267, §§ 1 k 14; 4 a 10; 4 a H; 10 k n. Dromgoole v. Bank, 2 How. 241, § 1 p2i. Dubuelet v. State, 2 Morr. Trans. 559, §§ 10 f i3; 18aiS: 25 c 13. Ducat V. Chicago, 10 Wall. 415, § 4 a 9. Dugan V. U. S. 3 Wheat. 172, § 1 i 4. Duncan v. Gegan, 101 U. S. 810, § 18 c 9, w. Dundas r. Bowler, 3 McLean, 204, § 1 p28. Dunham v. Bau:d, 2 Week. Notes, 52, § 11 h^. Dunn V. Waggoner, 3 Yerg, 59, §§ 5 b i; 6 c 2-2. Durand v. Hollius, 3 Duer, 686, § 5 a i4. Durham v. Southern L. Ins. Co. 46 Tex. 182, § 11 g i^. Durousseau v. U. S. 6 Cranch, 307, § 1 i ^. Dustin V. Dickinson, 2 Mich. N. P. 6, § 10 p ". Du Vivier v. Hopkins, 116 Mass. 128, §§ 10 a 12 ; 10 C i9; 11 g IS; 11 k C. TABLE OF CASES. 239 Duwell V. Bohmer, 10 Ch. L. N. 356, § 1 h 2. Dwight V. Centr. Vt. R. Co. 9 Fed. Rep. 785, § 1 r 4. D'Wolf v. Raband, 1 Peters, 476; S. C. Paine, 580, §§ 10 d 6; 19 a 2. Easton v. Rucker, 1 ^larsb. J. J. 232, §§ 11 b 17, 45; 17 c 5. Edgertou v. Gilpin, 3 Woods, 277. §§ 10 m i; 17 a 12. Edwards v. Ward, 3 Bush, 606, § 11 i 6. Ehrman v Teutonia Ins. Co. 1 Fed. Rep. 471, § 2 c 6, Elfort V. Bevins, 1 Busb, 4G0, § 25 b w. Ellerman v. New Orleans R. R. Co. 2 Woods, 120, §§ 1 k 12; 10 06, 26, 23; 14 dio. Ellis V. Sisson, 11 Fed. Rep. 353, §§ 10 h 7; 10 i H; 10 O 1. Elmore v. Grymes, 1 Peters, 469, § 19 a 2. Ely V. Korth. P. R. R. Co. 7 Week. Notes, 145; S. C. 36 Leg. Int. 164, §§ 11 f'^; 24 note; 24 ai-. Empire Trans. Co. v. Richards, 88 111. 4G4, § 11 c 22. Erie R. R. Co. v. Stringer, 32 Ohio St. 468, §§ 1 k U; 11 Erwin v. Lowry, 7 How. 172, § 1 a 12. Eureka Consol. M. Co. v. The Richmond Consol. M. Co. 2 Fed. Rep. 829, § 10 d s. Evans v. Bollen, 4 Dall. 342, § 1 n 7. Evans v. Faxon, 10 Fed. Rep. 312, §§ 10 o 5, 6^ H; 17 a 4. Evans v. Gee, 11 Peters, 80, § 1 p 23. Everts, Ex parte, 7 Am. Law Reg. 79, § 1 b ^. Fairchild v. Durand, 8 Abb. Pr. 305, §§ 10 h 6; 10p23; 10qi2. Fallis V. McArthur, 1 Bond, 100, §§ 2 a 9; 5 b iS; 11 b 28. Falls Wire Manuf g Co. v. Broderick, 6 Fed. Rep. 654, ^§4b2i: 10 el. Fargo V. McVicker, 38 How. Pr. 1, § 1 k 3. Farmers' L. & T. Co. r. C. P. & S. R. R. Co. 12 Ch. L. N. 65, §§7 a 2; 10oi2; 17 d 5. Farmers' L. & T. Co. v. Maquillan, 3 Dill. 279, §§ 7 a 5; 7 b9. Farmer v. Calvert Pub. Co. 5 Ch. L. N. 1, § 1 h 3. Farrestr. Edwin Farrest House, 1 Fed. Rep. 489, § 11 d 22. Fasnacht v. Frank, 23 W^all. 416, §§ 10 a 2-5; llf 17; 11 g", 23; 17 gi; 18 a 16. Fenn v. Holme, 21 How. 486, § 1 C 4. Ficklin v. Tarver, 59 Ga. 263, §§ 11 g i^; 11 12; H j 1. Field V. Baker, 1 Code Rep. (N. S.) 292, § 5 a i9. Field V. Blair, 1 Code Rep. (K S.) 361, §§ 5 a 26; H b 26, Field V. Lownsdale, Deady, 288, §§ 2 a 9; 5 a 2; 6 b s 8; 6 c 5; 17 a-; 17 b 6, 8. Field r. Schieffelin, 7 Johns. Ch. 252, § 10 b I6. Fields V. Lamb, Deadv, 430, § 6 b 3. Findlev v. Satterfield, 3 Woods, 504, §§ 27 note: 27 c 1, 7, 9; 27 d 7. 240 TABLE OF CASES. ±irst Nat. Bank v. Bennington, IG Blatclif. 5.3, § 1 1 12. First Nat. Bank v. Douglas Co. 3 Dill. 298, § 1 1 -i, 6, 6. First Nat. Bank v. King W. I. Co. 2 Cent. L. J. 505, § 10 n 5, 17. First Presb. See of G. B. v. Goodrich T. Co. 7 Fed. Rep. 257, ^§ 10 i 0; 10 k 30; 10 o 5, c. Fisk V. Chicago, 11. 1. & V. K. Co. 53 Barb. 472; 3 Abb. Pr. N. S. 453,{^^lki-; 5 b 1, '\ i'; 6ai, ", S; 7b0; 10 j 3- 10 k -G; 16 m 1, 1 ; 10 p 11, 1-; 10 q 5, c. Fish V. Fish, 4 Martin N. IS. G76, §§ 4 c '-»; 5 a 22. n b S2 S3; 18 a 11. Fisk r. N. P. R. R. Co. 6 Blatchf . 362, § 4 a 1. Fisk V. Union Pac. R. R. Co. G Blatclif. 3G2; S. C. 8 Blatclif. l^UO, §^ 2 a '■'; 4 c 1, 3; 4 d i; 10 q •*; 11 c 26 11 f G; 11 g ii,X iG; 11 i \ G; 11 j 5; 11 m 5; 14 b 2 14 d 1-1; 15 a i,'2; 18 c 2; 24 a 1, i", n, iS; 25 c & 27 d 2; 27 es, 6, c. Fitch V. Creighton, 24 How. 159, § 1 c i5, Fitz V. Ilayden. 4 Martin N. S. G53, § 11 C I'J. FitzgerakU'. Allman, 82 N. C. 492; S. C. 22 L. J. 218, §§ 25 note ; 25 a '^. Flanders v. iEtna Ins. Co. 3 Mason, 158, §§ 2 d 9; 2 e 2, 4^ 6. Fletcher v. Morey, 2 Story, 555, § 1 c «, la. Florence v. Butler, 9 Abb. Pr. N. S. G3, §§ 7 b i-t, 15; 25 note. Florence Sew. M. Co. v. Grover & B. Co. 1 Holmes, 235, § 10 j 10. Fonda v. British Am. Ins. Co. 10 Ch. L. N. 309, § 2 c 6. Foote V. Town of Hancock, 15 Blatclif. 343, §§ 1 o i; 101 8. Forbes, Ex parte, 1 Dill. 363, ^ 1 r 20. Forrest v. Keeler, 17 Blatcbf. 622, § 7 b 20; Forstain r. Ravenel, 17 How. 369, § 1 c 3. Forsyth v. Pierson. 9 Fed. Rep. 801, § 2 a n. Fossv. First Nat. Bk. 3 Fed. Rep. 185, § 1 1 6. Fountain r. Town of Angelica, 12 Fed. Rep. 8, § 10 1 1"*. Fouvergne v. New Orleans, 18 How. 470, § J.0 c i". Fowler v. Lindsay, 3 Dall. 411, §118. Fowlkes V. Fowlkes, 8 Ch. L. N. 41. § 25 a 5. Fox V. Ohio, 5 How. 410, §§ 1 b W; 1 f i; 1 r 20. Franciscus v. Surget, 6 Robt. 33, § 14 a <>. Frank G. & S. M. Co. v. Larimer M. & S. Co. 8 Fed. Rep. 724, § 10 f ic. Frazer, In re, 10 Ch. L. N. 390; S. C. 18 Alb. L. J. 353, §§6 CIS; 10 ci"; 10 nil; 10 o is. French v.Hav, 22 AVall. 250, §§ 11 g iC; 17 e 3, 4; 18 c 4 6. Fulton V. Golden, 20 Alb. L. J. 229, §§ 11 d i; 11 g 15; 11 j 1. Gaines v. Chew, 2 How. 619, § 1 c 12. TABLE OF CASES. 241 Gaines v. Fiientes, 92 U. S. 10; S. C. ?> Cent. L. J. 371; 8 Ch. L. N. 225, §§ 1 b "; 4 a 2, 3- 4 e 2; 10 c i3 ig. 10 i5; llg4, 5; 17 gl. Gale V. Babcock, 4 Wash. C. C. 344, §§ 10 b s- 10 C 7; 10 Gallatin v. Irwin. Hopk. Ch. 59, § 10 b 17. Galpin t'. Critchlow, 112 Mass. 3.3<}, § 11 f i^, 22. Galvin v. Boutwell, 9 Blatchf. 470, §§ 4 d ■•; 10 d 2; 17 b 6 20. Garci ?-.'Durant, 4 Cliff. 113, § 24 a ", 12. Garden City Manuf . Co. v. Smith, 1 Dill. 305, §§ 15 b 1 7 8; 16aX5. Gardner v. Brown, 21 Wall. 36, §§ 6 C is, 17 ; 10 p 25. Gardner v. Sharp. 4 Wash. C. C. GOO, § 1 j 7. Garrett v. Bonner, 30 La. An. 1305. § 11 g "■>. Gassies?;. Ballon. (J Peters, 701, §§ 1 j O; 1 k i; 1 m 4. Gate V. Babcock, 4 Wash. C C. 344, § 17 c 4. Gaugliran r. X. W. F. Ins. Co. 3 Biss. 485, § 18 a u. Gaza way v. Dana, 10 Blatchf. 34, § 25 c &. Gelston r. Johnson, 3 N. J. 625, § 5 a 1. George v. Pilcher, 28 Gratt. 299, §§ 6 C 9; 10 j 10, 7, 6; 10 qi2. Georgia v. Atkins, 1 Abb. U. S. 22; S. C. 35 Ga. 315, § 1 f 17. Georgia r. Braislfurd, 2 Dall. 402; 3 Dall. 1, §§ 1 i 7; 1 k is. Goorgia r. INIadrazo, 1 Peters, 116, § 1 i 7, 9. Georgia v. O'Grady, 3 Woods, 469, § 27 c 7, 9. Georgia v. Stanton, 6 Wall. 50, § 1 i 1. Germania F. Ins. Co. v. Francis, 52 Misa. 457, §§ 17 f 1, 4- 17 g 1. Geyer v. Hancock Ins. Co. 50 IT. H. 224, §§ 4 d 14; 6 c 23. Gibson v. Chew, 16 Peters, 315. ? 1 p 21. Gibson r. Johnson, 1 Peters, 44, ^§ 5 a 1, 27; H f 30; 17 g 6. Gilman v. Perkins. 7 Fed. Kep. 887; S. C. 13 The Ptcporter, 257, §§lai-i; 1 r i9. Gindrat r. Dane, 4 Cliff. 260, § 1 r 2^5. Girard, Ex parte, 3 Wall. Jr. 263, §§ 5 b 1, 6- 6 C S; 10 C 7; 10 m 3, -^2. Girardey v. Moore, 3 Woods, 397; S. C. 5 Cent. L. J. 78, §§ 5 note; 6 note 1, 2; 10 o 1, 5, 8, 15^ 21, Gist, Ex parte, 26 Ala. 156, § 1 a 1. Gold W. & W. Co. t'. Keyes, 96 U. S. 199, §§ 1 f i; 10 a i; lOf 1,2,7; 17 a 11. Goodrich v. Hunton, 29 La. An. 372, §§ 5 b i; 7 b 5; 10 b 2, 5, G^ 10; 10 p 11; 10 q 12; 11 b 37, 40. 11 g 14, Goodyear v. Dav, 1 Blatchf. 565, ^§ 1 g 3; 1 j 4. Goodyear v. Union Rub. Co. 4 Blatchf. 63, § 1 g s. Gordon v. Anthony, 16 Off. Gaz. 1135. § 1 g 1. Gordon v. Hobart, 2 Sum. 401, § 1 c n. 13. DESTY KEilOVAL.— »1. 242 ' TABLE OF CASES. Gordon v. Longest, 16 Peters, 97, §§ 1 d 3; 4 b 4, is, 19; 4 C 4, 11; 11 g 14, 16; 11 h 15; 11 i 2, 6; 17 g 1. Gosborn v. Alexander, 2 Bond, 158, § 1 c i", i5. Goshoru V. Supervisors, 1 W. Va. 308, § 10 k 25. Gracie v. Palmer, 8 Wheat. 699, §§ 2 d 6; 2 e 4, Graham, Ex parte, 3 Wash. C. C. 456, §§ 1 q i; 2 d 2. Graham v. Stucken, 4 Blatchf. 50, § 1 m 3. Grant v. Ptaymond, 6 Peters, 220, § 23 a 2. Gravson v. Va. 3 Dall. 320, §117. Greeley v. Smith, 3 Storv, 76, § 1 k s. Greely v. Townsend, 25 Cal. 601, §§ 4 a i; 10 q 2. Green's Administratrix v. Creighton, 23 How. 90, § 4 d i'^. Green v. Custard, 23 How. 484, §§ 4 b 20- 10 1 15; 11 g 4- 1115; 17 gl. Green v. Liter, 8 Cranch, 229, ^ 1 d 8. Green v. U. S. 9 Wall. 653, § 10 c 2, 3. Greene v. Klinger, 10 Cent. L. J. 47; 10 Fed. Eep. 089, §§ 10 m 8, 13; 10 p 30; 11 d 3; 11 e 9; 11 f 7. Green wait v. Tucker, 10 Fed. Pep. 884, § 10 1 u. Gregg V. Weston, 7 Biss. 360, § 1 p n, 2-3. Grimball, Ex parte, 8 Cent. L. J. 151, §§ 6 note i; 6 c 19. Griswold v. Cent. Vt. P. Co. 9 Fed. Eep. 797, § 1 r i^. Griswold v. Sedgwick, 1 Wend. 126, § 1 a 12. Grover v. Amer. Express Co. 11 Fed. Eep. § 2 c 9. Gurnee v. Brunswick Co. 1 Hughes, 270, §§ 7 b 20; 10 c 1^: lid 3, 8; lie 13. Hadley v. Dunlap, 10 Ohio St. 1, §§ 4 c H; 10 m 3; 11 g 5, 14, 16. Hagan v. Walker, 14 How. 29, §§ 5 b 3; 10 n 23. Hall V. Eicketts, 9 Bush, 366, § 11 f lo, 20. Halsey v. Township, 3 Fep. Eep. 364, § 1 p 29. Halstead v. Lyon, 2 McLean, 226, § 1 p is. Haney v. Sharp, 1 Dana, 442, § 1 b 9. Hannauer v. Woodrufe, 10 Wall. 482, § 23 a 21. Hanover F. Ins. Co. v. Keogh, 7 Fed. Eep. 764, §§ 10 j i": 10 n 22, Hanover Nat. B'k v. Smith, 13 Blatchf. 224, § 4 C 13, 14, 15. Hargroves v. Pedd, 43 Ga. 142, § 10 c ^~, is. Harris v. Hess, 10 Fed. Pep. 263, § 1 r 3. Harrison v. Hadley, 2 Dill. 229, § 1 a 3. Harrison v. Powan, Peters C. C. 489, §§ 1 j 5; 2 a iS; 2 e 1^ 3^ 4^ 6,9. Harrison' t\' Shorter, 59 Ga. 112, §§ 5 b i^; 10 b S; 11 b 21. Harrison Wire Co. v. Wheeler, 11 Fed. Eep. 206, §§ 1 r 13; 18 ci. Hartell v. Pilghman, 99 U. S. 547, § 1 g 3. Harter Township v. Kernochan, 2 Morr. Trans. 235, §§10 i8;lle35. TABLE OF CASES. 243 Hartford F. Ins. Co. v. Doyle, 6 Biss. 463; S. C. 6 Cent. L. J. 41, §5 4 a 10, 11; 10 k u. Hartford F. Ins. Co. v. Green, 52 Miss. 332, §§ 11 b 8, 2i; 11 h w. Hartshorne v. Wright, Peters C. C. 64, §§ 1 d S; 1 j 9. Hatch V. Chicago, 11. I. etc. Co. 6 Blatchf. 105, §§ 1 k 4, 12; 4 b 13; 4 C 2, 3; 5 b 6; 7 b 9; 10 k 8; 10 m 3, 15, 18; 11 a 7; 11 g 15; 11 i 2; 11 j 1, 5, 6; 14 q 3; 15 C 6; 16 a 3. Hatch V. Preston, 1 Biss. 19, § 10 a i^. Hatch V. Wallamet Iron B. Co. 11 The Reporter, X. S. 630, §§lf 6; 10 f 2. Havemeyer v. Iowa Co. 3 Wall. 294, § 23 a 6. Hawes v. Contra Costa W. Co. 11 Fed. Rep. 93, note, §§ 10 1 12; 24 a 11. Hayden i\ Androscoggin Mills. 1 Fed. Rep. 93, § 2 c *. Hazard v. Chicago, B. & P. R. R. Co. 4 Biss. 453, § 11 f 31. Hazard v. Durant, 9 R. I. 602, §§ 5 a "; 5 b i 9; 10 j 3- 10 p U, 12; 11 C 1, 8; 11 g5; 24 a 1. Healey v. Prevost, 25 Int. R. R. 240, §§ 4 c 8; 10 o 19; 10 p30. Heath v. Austin, 12 Blatchf. 320, § 17 b i5, 24. Hebert v. Lefevre, 31 La. An. 363, § 10 f 9. Hepburn v. Ellzey, 2 Cranch, 445, §§ 1 j 9; 1 m 4; 10 p IS; 23 a 2. Herndon v. Ridgwav, 17 How. 424, §§ 2 a i; 2 d i; 2 e n Herryford v. Mxna Ins. Co. 42 Mo. 153, §§ 1 k 3, 12; H g 16. Hervey v. Illinois etc. R. Co. 7 Biss. 103; S. C. 3 Fed. Rep. 707; 12 Ch. L. N. 407, §§ 6 note 2; 10 m 2I; 10 n is 20. 10 O 1, 2, 5^ 11, 18, 20; 17 b 18; 17 d 3; H C 29. Hill r. Henderson, 21 Miss. 688, § 11 c 12. . Hill V. Whitcomb. 1 Holmes, 317, § 1 g 9. Hill r. Winne, 1 Biss. 275, § 1 p 23. Hills V. Hompton, 4 Sawy. 195, § 1 f 9. Hinckley v. G. C. & S. R. R. Co. 12 Ch. L. N. 176, § 11 k 3. Hinckley v. Railroad Co. 100 U. S. 153, § 18 b 9. Hoadley v. San Francisco, 94 U. S. 4; S. C. 3 Sawv. 553; 8 Ch. L. N. 1:34, §§ 10 a 4; 10 g 3, 4, 6; 11 f 28; 17 g 1. Hobbs V. Manhattan Ins. Co. 56 Me. 417, §§ 1 k 12; 4 a 9; 10 k 10. Hodge V. Hudson River R. R. Co. 6 Blatchf. 85, § 36 a 1. Hodgkins v. Hayes, 9 Abb. Pr. :N'. S. 87, § 6 b n. Hodgson ■;. Bowerbank, 5 Cranch, 303, §§ 1 a 8; 1 m 4; 4 d2: 10 di; 14 a 8. Hodgson V. Mill ward, 3 Grant, 412. §§ 1 f 3 4; 4 a i; 17 a i*; 17 b 4; 25 note; 25 b 5, 7; 25 c 1 Hodson V. Lake Shore etc. R. M. Co. 13 The Reporter, 41, § 11 e 5. Holden v. Putnam Fire Ins. Co. 46 N. Y. 1, §§ 1 k 3; 5 b 18i 10 k 16; 11 b 12, 13, 24 J 11 h 15; 14 d 12. 244 TABLE OF CASES. Hollingsw'orth v. Adams, 2 Dall. 396, § 2 b i. Holmes v. O. & C R. Co. 5 Fed. Eep. 75, § 1 r 2. Home Ins. Co. v. Curtis, 32 Mich. 402, §§ 4 C 12; 11 a 12. Home Ins. Co. v. Davis, 29 Mich. 238, § 1 k 12 Hope Ins. Co. v. Boardman, 5 Cranch, 57, §§ 1 j i; 1 k 3. Hopkins, Re, 18 Bank Reg. 339, § 11 a 3. Hough V. Western Trans. Co. 1 Biss. 425, § 14 d 14. Houser v. Chiyion, 2 Woods, 273, §§ 10 f 9, 23; U b 35 46 4-; 11 j 11; 1119, 11; 17 b 19. Howard v. Crompton, 14 Blatchf . 333, § 20 note. Howe S. M. Co. v. Edwards, 15 Blatchf. 405, §§ 18 b 2; 19 ai, 3; 20 a 4. Howes V. Kute, 4 Fish. Pat. Cas. 263, § 1 g^. Howland etc. Works v. Brown, 13 Bush, 681, §§ 10 j lO; 10 p 13. Hovt V. Wright, 4 Fed. Rep. 168, §§ 1 o i; 10 1 9; 17 a w. Hubbard v. Bellew, 3 Fed. Rep. 447, § 1 r 5. Hubbard v. Is'orthern R. Co. 3 Blatchf. 84: S. C. 25 Vt.715; §§la3; 5bi, 4, 9; lOpia. Huddv V. Havens, 5 Cent. L. J. 66, § 11 d i. Huder v. Ins. Co. 25 Wis. 143, § 1 k i^. Hulsecamp v. Teel, 2 Dall. 358, §§ 1 d i«; 4 b 19. Hunter v. Royal Canadian Ins. Co. 3 Hughes, 234, §§ 1 k ^; 11 ei5; 18 a 6. Hurst V. INIcXeil, 1 Wash. C. C. 70, § 1 o 7. Hurst V. Railroad Co. 93 U. S. 71, 5§ 10 j 4; 10 p 3, n Hurt V. Hollingsworth, 100 U. S. 100, § 11 1 5. Hyde v. Phoenix Ins. Co. 2 Dill. 525, § 17 c i. Hyde v. Ruble, 3 Morr. Trans. 516, §§ 6 note i, 3; 10 j 3, u 12; 10 n 21. Imbush V. Farwell, 1 Blatchf. 571, § 5 b 3. Imlay v. Railroad Co. 4 Blatchf. 2-27, § 1 g 23. Indiana B. & W. R. Co. i'. Risley, 50 lud. 60, §§ 10 b 7; 11 b 24. Inhab. of School Dist. t'. ^tna Ins. Co. 66 Me. 370, § 11 d 1^ 8. Insurance Asso. v. Boon, 95 U. S. 117, § 20 b i, 3, 4, Insurance Co. v. Bangs, 103 U. S. 435; 2 Morr. Trans. 791, §§ 1 r 26; 2 a 12. Ins. Co. i\ Dunn, 19 Wall. 214, §§ 4 a 2; 4 c w, i^; 7 b 9; 11 f 2, 3; 11 g 13, U 16; 11 h 15; 17 g 1. Insurance Co. v. Francis. 11 Wall. 210, §§ 1 k 12- 10 j 4- lOpi"; llb2i; 17b6. Insurance Co. v. Laettel, 7 Cent. L. J. 378, § 4 d 12. Insurance Co. v. McGuire, 52 Miss. 227, § 11 b 21. Ins. Co. V. Morse, 20 Wall. 445, §§ 10 k 12, i3; 14 d i". Ins. Co. V. Pechner, 95 U. S. 183; S. C. 6 Lans. 411, §§ 5 b 11; lib 24; 11 f 5. TABLE OF CASES. 245 Iowa Home Co. v. Des Moines etc. R. R. Co. 13 The Re- porter, 385, §§ 1 r 8; 10 i is. Iowa & M. Ins. Const. Co. In re, 10 Fed. Rep. 401; 6 Fed. Rep. 799, §§ 7 b ^^; 10 a -^-i; 10 O ^^ 10 p 30; 11 i 8. Ins. Co. V. Ritchie, 5 Wall. 541, § 27 a 3. Irvine v. Lowry, 14 Peters, 293, §§ 1 j ii; 2 d 8. Jackson v. Mutual Ins. Co. 3 Woods, 413; S. C. 60 Ga. 423, §§4di^; llbi3; 11 j 2; 17 ci. Jackson v. Stiles, 4 Johns. 493, §§ 5 a i^^; 6 c «. Jackson v. Twentyman, 2 Peters, 13U, § 1 m '', 6. James v. Thurston, 6 R. I. 428, §§ 10 m -; Hi 2. Jenkins v. Switzer, 33 Leg. Int. 282, § 17 f 3. Jett's Case, 18 Gratt. 942, § 1 r -<>. Jifkins V. Sweetzer, 13 Ch. L. N. 103, §§ 11 e ^s, 30^ 32; n f IS^ 33. Johnson v. Monell, 1 Wool^. 390, §§ 4 a i; 7 a -i; 10 p 7; 10 ql; lib 23; llf 5, 22. Johnson v. Phila. W. & B. R. Co. 9 Fed. Rep. 6, § 10 k Jones I'. Amazon Ins. Co. 9 Ch. L. N. 68, §§ 11 ll 3; 11 j i. Jones V. Andrews, 10 Wall. 327, § 2 e 5; 5 b 3. Jones V. League, 18 How. 76, § 1 o 3. Jones V. Oceanic St. Nav. Co. 11 Blatchf. 406, §§ 14 b 6; 24 a 2, 3, H, 15. Jones 6'. Seward, 41 Barb. 272; S. C. 40 Barb. 563; 26 How. Pr. 433; 17 Abb. Pr. 377, §§ 1 b 6; 1 c i; 11 C 34; H j 2;25ce. Jordan v. Wallace, 5 Fish. Pat. Cas. 185, § 1 g 23. Judson V. Macon Co. 2 Dill. 213, § 1 d le. Juneau Bank v. McSpeden, 5 i^iss. 64, § 2 a 4. Justices V. Murray, 9 Wall. 274, § 15 a -i. Kaeiser v. Illinois Cent. R. R. Co. 6 Fed. Rep. 1, §§ 10 j 2; lib 24; 14 a 9, 10,11. Kaiu t'. Texas Pac. R. R. Co. 3 Cent. L. J. 12, §§ 7 b - ; 17 e 1; 24 note; 24 a lo. Kauouse ?;. Martin, 15 How. 198; S. C. 1 Blatchf. 149, §§ 1 d 3; 4 b 4, 14 20; 4 c 3^ H; 10 e 8; 11 g 13 14 16; 11 ll 15; 18 bl4. Karns v. Atlantic & O. R. Co. 10 Fed. Rep. 309, §§ 10 j 9; 10 n 2; 11 g 8; 18 b 1. Karrahoo v. Adams, 1 Dill. 344, §§ 1 a 3; 1 m 12. Kauffman v. McNutt, 3 Cent. L. J. 408, § 17 e 1. Kearny's Case, 12 Wall. 275, § 20 a 2, 3. Keary i'. Bank, 10 Peters, 89, § 1 p 21. Keith V. Levi, 2 Fed. Rep. 743, §§ 4 b 12, iS; 10 a i''; 10 C 9; 10 e 2; 1019, 14; He". Kellogg V. Hughes, 3 Dill. .357, §§ 11 f 20, 22, 24. Kelly V. Harding, 5 Blatchf. 502, § 1 j 4. 246 TABLE OF CASES. Kelly V. Virginia P. Ins. Co. 3 Hughes, 449, § 18 b 2. Kelsey v. Pennsylvania Pv. Co. 14 Blatclif . 89, § 2 e K Kendall v. U. S. 12 Peters, 616, §§ 1 a 9; 1 b 4. Kennedy v. Gibson, 8 Wall. 498, § 1 1 6. Kennedy v. Woolfolk, 1 Tenn. 453, § 11 i 6. Kentucky v. Ohio, 24 How. 97, § 1 i ^. Kentucky S. M. Co. v. Day, 2 Sawy. 468, § 2 e 7. Kern v. Huidekoper, 2 Morr. Trans. 597, §§ 11 j *; 11 k i; 18 c 1. Kerting v. Amer. Oleograph Co. 10 Fed. Rep. 17, §§ 7 b20; 11 d-i; 17 es. Ketchum v. Black Paver Lum. Co. 4 Fed. Rep. 139, §§ 10 ci; lOo 10. Ketchum v. Farmers' etc. Co. 4 McLean, 1, § 1 j i^. Ketland v. Tlie Cassius, 2 Dall. 365, § 1 n 5. Kidder v. Featteau, 2 Fed. Rep. 616, §§ 14 b 8; 17 C i Kimball v. Evans, 93 U. S. 320, § 11 g -3. King V. Oliver, 2 Wasli. C. C. 429, § 1 m 13. King V. Wilson, 1 Dill. 555, § 1 d 13, u King V. Worthington, 3 Morr. Trans. 101, §§ 10 g 8; 11 1 1-5; 14 b 4. King of Spain v. Oliver, 2 Wash. C. C. 429, § 10 k 26. Kingsburv v. Kingsbury, 3 Biss. 60, §§ 5 a i; 11 a i, 2; 17 b ^1; 18 a 11. Kirkham v. Hamilton, 6 Peters, 20, § 1 p 20. Kirkpatrick c. Hopkins, 2 Miles, 277, §§ 11 b so, 34. n c 8, 9. Kitchen v. Strawbridge, 4 Wash. C. C. 84, §§ 1 j 5; In i". Knapp V. Railroad Co. 20 Wall. 117, §§ 5 b 'J; 10 p 4; 11 Knappen v. Troy & B. R. R. Co. 20 Wall. 117, §§ 10 p ■*; 17 gv. Knickerbocker L. Ins. Co. v. Gerbach, 70 Pa. St. 150, §§ 10 j 5; 10pi6; 10 qO; 11 jio. Knott V. Southern L. Ins. Co. 2 Woods, 479, § 2 c 6 Knowlton v. Congress & Empire S. Co. 13 Blatchf. 170, §§4e5; 11 di; llf23. Knox V. Greenleaf, 4 Dall. 360, § 1 j 6. Kohl V. U. S. 91 U. S. 367, § 1 C y. Kranshaar v. N. H. Steamboat Co. 7 Robt. 357, § 10 k I6. Kulp V Ricketts, 3 Grant, 420, §§ 1 f 4; 4 a i; 25 note; 25 b 5, Ladd V. Tudor, 3 Wood. & M. 325, §§ 1 d 3; 4 b 1, s 8, 9, lO; 4 c 3; 14 a 6; 14 d 13. Lafayette Ins. Co. v. French, 18 How. 404, § 1 k 3. Laird v. Conn. & P. Riv. R R. Co. 55 N. H. 375, § 10 p 6. Lake Shore & M. S. R. Co. v. C. & W. I. R. Co. 5 Fed. Rep. 19, § 10 k 24. TABLE OF CASES. 247 Lalor V. Dunning, 56 How. Pr. 209, §§ 11 b 5; H h 3; 11 j Lamar v. Dana, 10 Blatcf. 34, § 15 a 3. La Mothe Manuf. Co. v. Nat. Tube Wks. 15 BlatcM. 432, §§5 note; 11 a i3; 1114^ o. Langford v. Monteith, 102 U. S. 155, § 1 r^i. Lanuing v. Dolpb, 4 Wash. C. C. 624, § 1 d 8. Lanning v. Lockett, 11 Fed. Rep. 814; S. C. 10 id. 451, § 10 Lanz v'. Randall, 4 Dill. 425, §§ 4 d 6, 7, 8; iq d 5, 6. Latham v. Barney, 10 Ch. L. X. 11, § 10 n H Lauriate v. Stratton, 11 Fed. Rep. 107, § 10 u 30. Lawlor v. Walker, 14 How. 149, § 1 c 2. Lee V. Lee, 8 Peters, 44, § 10 i 5. Lee V. Watson, 1 W^all. 337, § 1 d i. Le Grande v. United States, 12 Fed. Rep. 577, note, 583, §25 a 8. Lehigh Co. v. Central R. R. Co. 4 Week. IT. 187, § 17 a 9. Leon, Ex parte, 1 Edm. Sel. Cas. 301, § 1 b 9. Leonard i\ Jones, 2 Edw. 136, § 5 b 6. Leutz V. Butterfield, 7 Daly, 24; 1 Abb. N. C. 367, §§ 1 j iS; 101 5. Levi V. Columbia L. Ins. Co. 1 Fed. Rep. 206, § 1 r i^. Levy V. Fitzpatrick, 15 Peters, 167, § 2 d 'i. Levy V. O'Neil, 14 Abb. Pr. N. S. 63, § 6 b 13; 6 c ^2. Lewis V. Smythe, 2 Woods, 117, §§ 11 e 3, 26; n f u Lewis V. White, 7 Ch. L. K 116, §§ 6 b "; 10 q i*. Lexington v. Butler, 14 Wall. 282, §§ 1 p 30; 10 1 1, iS; U g 4 6^ Liddle v. Thatcher, 12 How. Pr. 294, § 11 j 7. LifPord V. Beatty, 12 Ohio St. 189, § 5 b lo. Liggett V. Miller, 1 Fed. Rep. 203, § 2 d 3. Little V. Hall, 18 How. 165, § 1 II 5. Littlefield v. Perry, 21 Wall. 205, § 1 g 2; 1 i lo. Livermore v. Jenks, 11 How. Pr. 479, § 11 i 2, 10. Liverpool Ins. Co. v. McGuire, 52 Miss. 227, §§ 11 b 8; 11 Livingston v. Gibbons, 4 Johns. Ch. 94, §§ 5 a 15; 10 m 2; 10 m 3. Livingston v. Jefferson, 1 Brock. 203, § 1 a 3, 4^ 8_ Livingston v. Van Ingen, 1 Paine, 45; S. C 9 Johns. 507, §§la3, 5; lj3, Lockhart v. Horn, 1 Woods, 634, § 10 o 22. Locomotive Co. v. Erie Ry. Co. 10 Blatchf. 292, § 1 q 5. Loring v. Marsh, 2 Cliff. 469, § 1 C 3. Lorman v. Clarke, 2 McLean, 5o8, § 1 c 6, n, 13^ 15. Louisiana State Bank v. Morgan, 4 Martin N. S. 344, § 11 248 TABLE OF CASES. Louisville etc. R. R. Co. v. Letson, 2 How. .314, § 1 k 3. Low V. Waj-ne Bank, 14 Blackf. 449, §§ 10 i lO; 10 O 9. Ludlow r. Kidd, 3 Ohio, 48, §§ 5 b «; 24 a ^ 5. Luther r. Borden, 7 How. 55, §§ 1 i '; 23 a 2. Lyons, Town of, r. Lyons Nat. Bank, 8 Fed. Bep. 371, §§19ai; 20 note; 20 a 2. Magee v. Union Pac. R. R. Co. 2 Sawy. 447, § 24 a 9, ". Magic Ruffle Co. v. Elm City Co. 13 Blatchf. 151, § 1 g Magill't'. Parsons, 4 Conn. 317, §§ 1 b i; 111. Mahone v. Manchester etc. R. Co. Ill Mass. 72, §§ 7 b H; 11 g 13. Mahoney Min. Co. v. Bennett, 4 Sawy. 289, § 18 c 3. Main v. Second Xat. Bank, 6 Biss. 2(5, §§ 11 «; 2 c 3. Maine v. Gilman, 10 Fed. Rep. 214, §§ 4 b 20; 10 j 6; IQ o 4 5 16. Manuf.'Nat. Bank v. Baack, 2 Abb. U. S. 232; S. C. 8 Blatchf. 137, §§112, 3; 24 a 5. Manville & W. U. Tel. Co. 2 Cent. L. J. GIB, § 11 i 3. Marchand v. Frellson, 4 JNIorr. Trans. 431, § 1 r 6. Marion t\ Ellis, 9 Fed. Rep. 367; S. C. 10 Fed. Rep. 410, §§lo4; 1016,12. Marshall v. Bait. & O. R. Co. 16 How. 314, §§ 1 k 3, 9- 10 k2o. Martin v. Coons, 24 La. An. 169, §§ 7 b 2I; 10 j 3; 10 p lO; 11 b 1^. Martin v. Hunter, 1 Wheat. 304, §§ 1 a 6, - ; 1 b H; 1 e 2; 4 a 1, 5. Martin v. Kanouse, 1 Blatchf. 149; S. C. 15 How. 198, §§ 11 13; 14 a 1. Martin v. Snowden, 18 Gratt. 100, §§ 10 c "; 25 c ". Martin v. Taylor, 1 Wash. C. C. 1, §§ 1 d H; 4 c S; 10 o i9. Martindale v. Waas, 12 Fed. Rep. 551, § 11 1 12. Marye v. Strouse, 5 Fed. Rep. 497, § 20 b 1. Mason v. Boom Comp. 3 Wall. Jr. 252, § 4 a ^. Mass. V. R. I. 12 Peters, 755, § 1 i ". Matthews v. Lyall, 6 McLean, 13, §§ 4 c 5; 11 g 15; n i 6, 11. Mauidin v. Carll, 3 Hughes, 249, § 2 b 1. Maxwell v. Levy, 2 Ball. 381, § 1 o 3, -. Maybury v. Madison, 1 Cranch, 137. ^ 1 e 6. Mayo V. Taylor, 8 Ch. L. N. 10, § 11 h 3. Mayor v. Cooper, 6 Wall. 247, §^ 1 b 5; 1 e 2- 1 f 1, 2- 1 p 8; 4 a 1; 10 f 2; 11 hi-; 17 f 5; 24 a 14. Mayor etc. v. Cummins, 47 Ga. 321. § 10 m 1. McBratney v. Usher. 1 Dill. 367, § 14 a 4, 5. McCallon v. Waterman. 1 Flippen, 652; 4 Cent. L. J. 413, §§1012; lle2, 23; llfl. TABLE OF CASES. 249 McCloskey v. CoLb, 2 Bond, 16, §§ 2 a S; 2 e * McComb V. Beard, 10 Blatchf . 350, § 1 g 23. McCormick v. Humphrey, 27 Ind. 144, §§ 4 a i; 25 note. McCormick v. Maylield, 27 Ind. 143, § 25 note. McCoy V. Washington, 3 Phila. 290, §§ 1 k i'; 1 p 32. McCullough V. Sterling S. F. Co. 4 Dill. 563, § 11 d H, 14. McDonald v. Smallev, 1 Peters, 620, § 1 o i. McGinnitv v. White, 3 Dill. 350, §§ 4 b 2, i7- 6 b 5 lo- 6 c ' ; 10 e 3; 10 p 20; 10 q 8; 11 b 23. Mclntyre v. AVood, 7 Cranch, 504, §§ 1 a 9; 1 b 4. McKee v. Rains, 10 AVall. 22, § 27 b i3. McKinley v. Chicago & N. W. R. R. Co. 14 Iowa, 314, § 11 f 25. ^ McLean v. Chicago & St. P. R. Co. 16 Blatchf. 309, §§ 4 d 12; 5 note; 6 note i; 10 O 5 6- n a 9; 11 b 23 *3i. n di; 17ci, 2, 3. McLeod V. Duncan, 5 McLean, 342, §§ 15 c 6; 16 a 3. McMicken v. Webb, 11 Peters, 25, § 1 q 5. McMillin v. Barclay, 5 Fish. Pat. Cas. 189, § 1 g 19, 20. McMurdy V. Insurance Co. 4 Week. No. Cas. 18, §§ 11 b 6; 11 g 15. McMurdy v. Conn. G. L. Ins. Co. 9 Ch. L. K. 324, §§ 17 a 6; 17 c 4; 17 d 5. McStay v. Friedman, 92 U. S. 723, § 10 f 19. McWhinney v. Brinker, 64 Ind. 360, §§ 11 b 8; 11 h 2, w Mead v. Walker, 15 Wis. 499, § 6 c 23. Meade v. Beale, Taney, 339, § 1 c i*. Meador, Matt, of, 1 Abb. U. S. 324, § 1 a u. Meadow V. M. Co. v. Dodds, 7 Nev. 143, § 7 b 3. Mercantile T. Co. v. Portland & O. R. Co. 10 Fed. Rep. 604, §§ 2 a 10; 2 e 12. Merch & Manuf. Nat. Bank v. Wheeler, 13 Blatchf. 218, §§ 10 g 4, 6; 11 b 35; 11 k 7; 11 1 3. Merrill v. Petty, 16 Wall. 338, § 4 b i^. Merserole v. U. P. C. Co. 6 Blatchf. 356, §§ 1 f I6; 1 g H; 1 3 ^• Merwin v. Wexel, 49 How. Pr. 115, §§ 1 p 2t- 6 b 6- 6 c 7- lOj ', 10; 10pl2. Metropolitan L. Ins. Co. v. Harper, 3 Hughes, 260, §§ 1 k 15; 10 k 13. Meyer v. Delaware R. Constr. Co. 100 U. S. 457, §§ 11 b 29, 30, 33; 11 d3; 11 h 4. Meyer v. Norton, 9 Fed. Rep. 433, §§ 11 d 19; 11 e 27. Mich. Cent. R. Co. v. Andes Ins. Co. 9 Ch. L. N. 34, § 11 dl8; 11 e6. Milledollar v. Bell, 2 Wall. Jr. 334, § 1 p 24. Miller v. Finn, 1 Neb. 254, §§ 6 c i; 7 b 7; 10 j lO; 10 n 4- 11CS,21 31j llf2 25. 250 TABLE OF CASES. Miller v. Lynde, 2 Robt. 444, § 5 b 6. Miller v. New York, 13 Blatchf. 4G9, §§ 1 e 9; 1 f 14. Milligan, Ex parte, 4 Wall. 114, § 1 c i. Mills V. Brown, 16 Peters, 525, § 1 C 2. Mining & Manuf. Co. v. Bradley, 4 Morr. Trans. 384, § 18 a 4. Mining Co. v. Taylor, 100 U. S. 37, § 20 b 6 Minnett v. M. & St. P. P. P. Co. 3 Dill. 460, §§ 7 b 9 12. lib 37; 11 f -^0^22. Minot V. Phila. W. & B. P. Co. 2 Abb. (U. S.) 323, §§ 1 k 5; 10 k 25. Mississippi v. Johnson, 4 Wall. 498, § 1 i 1. Mississippi & Mo. P. P. Co. v. Ward, 2 Black, 485, § 1 d i". Missouri K. & T. P. Co. v. Texas & St. L. P. Co. 10 Fed. Pep. 597. § 10 k 21. Mitchell v. Walker, 36 Leg. Int. 64, § 1 1 n. Mix V. Andes Ins. Co. 74 N. Y. 53, §§ 7 b 9 I8; 11 b 33; H Moch ■;'. Va! Fire'& M. Ins. Co. 10 Fed. Rep. 696, § 2 c 5, 7. Moffat V. Soley, 2 Paine, 103, §§ 1 j "; 1 q 1 Moll an V. Torrance, 9 Wheat. 537, § 1 p 2^. Monuett v. Milwaukee etc. P. P. Co. 3 Dill. 460, § 1 k 4, Mooney v. Agnew, 4 Fed. Pep. 7, § 11 e 34. Morgan r. ih\y, 19 Wall. 81, § 20 a 1. Morse v. Ins. Co. 20 Wall. 445; 30 Wis. 496, § 4 a i". Morton v. Mut. L. Ins Co. 105 Mass. 141, §§ 1 k i^^; 10 k 10. Moses Taylor, The, 4 Wall. 411, §§ 1 a C; lb u. Mossman r. Higginson, 4 Dall. 12, §§ 1 a 8; 1 m •*; 4 d 2; 10 di. Mowery v. Indiana & C. P. P. Co. 4 Biss. 80, § 1 i -. Movnahan v. Wilson, 6 Cent. L. J. 28, § 11 g 22. Muller V. Dows, 94 U. S. 444, § 1 k », ^o, Muns V. Dupont, 2 Wash. C C. 463. §§ 1 d3; 4 b 6, «; 4 c8. Murphy v. Howard, Hemp. 205, § 1 d 10. Murray v. Holden, 2 Fed. Pep. 740, §§ 7 b 20; H d 1, 5. Murray v. Patrie, 5 Blatchf. 343, §§ 4 a 1, 4, 12; 17 a 5. Myers v. Dorr, 13 Blatchf. 22, §§ 2 b 3; 2 c 1, 2. Nat. Bank of Lvndon v. Wells Piv. Manuf'g Co. 7 Fed. Pep. 750, § iO m ic, iv. National Union B'k v. Dodge, 11 The Reporter, 641, §§ 10 j 0; 10 o 21. 23; 11 i 8; 11 k 1; 14 d 1; 17 g 5; 18 a s. Neal V. Delaware, 103 U. S. 370, § 25 b n, 12. Nesuiith v. Sheldon, 6 How. 41, § 23 a i". Nesinith v. Calvert, 1 Wood. & M. 34, §§ 1 g •»; Ik 2. Neudecker r. Posenbaum, 11 The Reporter, 254, § 10 g ". Nevins v. Johnson, 3 Blatchf. 80, § 1 g 1. Newby v. Oregon Cent. R. P. Co. 1 Sawy. 63, § 1 o 1. New England Screw Co. v. Bliven, 3 Blatchf. 240, §§ 15 b 2 6. 16 a 4. TABLE OF CASES. 251 New Jersey Zinc Co. v. Trotter, 23 Int. Eev. Rec. 410 §§ 1 i 7; 5 note; 6 note i; 6 a 4; 7 a 2; lo j 7, lO; 10 ni9. New Orleans v. Winter, 1 Wheat. 91, §§ 1 j 8, 9; 1 m 4; 10 p 18. N. O. City R. R. Co. v. Crescent City R. R. Co. 5 Fed. Rep. 160, §§15c5; 18 c 8. New Orleans etc. Co. v. Recorder, 27 La. An. 291, §§ 5 b 6; 1011: lib 8; llhl4. New Orleans M. & T. R. Co. v. Mississippi, 102 U. S. 135, §§ 1 f 1: 4 a "; 4 c W; 10 f i, 2; U b W; 11 g 14. New Orleans, M. & T. R. Co. v. State, 13 Ch. L. N. 93, § 10 f 5. N. Y. r. Conn. 4 Dall. 1, § 1 i 7, s. N. Y. Life Ins. Co. v. Best, 23 Ohio St. 105, §§ 4 a W; 10 k 12. New York Piano Co. v. New Haven Steamboat Co. 2 Abb. Pr. N. S. 357, §§ 1 k i2; 10 k W; 11 h 9. N. Y. Silk Manuf. Co. v. Second Nat. Bank, 10 Fed. Rep. 204, §§ 4 b 22; 10 e 6; 10 ll 4; Hi 4. New York Warehouse etc. v. Loomis, 122 Mass. 431, §§ 11 di. 8; He 22. Noell V. Mitchell, 4 Biss. 346, § 1 p is. Norris v. Jackson, 9 Wall. 125, § 20 b i, 2, 5^ 7. Norris v. Mineral Point Tunnel, 7 Fed. Rep. 272; S. C. 11 The Reporter, 272, §§ 5 note; 11 a 8; H b 37, 41. North V. McDonald, 1 Biss. 57, § 2 b s. North Riv. Steamboat Co. v. Hoffman, 5 Johns. Ch. 299, §§6bi2; lOkn. Northern Ind. R. Co. v. Michigan Cent. R. Co. 15 How. 233, § 2 C 1. Northern Line P. Co. v. Binninger, 70 111. 571, §§ 10 k 17; 24 a 3. Northwestern D. Co. v. Corse, 4 Biss. 514, § 16 a 3. Norton v. Hayes, 4 Denio, 245, §§ 5 a i*->; 5 b iS; H b 28. Nugent V. State, 18 Ala. 521, § 1 a is. Nye V. Nightingale, 6 R. I. 439, §§ 6 c 24- 10 b 10. Oakey v. Bank, 14 La. 515, §§ 1 k 3; 11 h 9. Ober V. Gallagher, 93 U. S. 199, §§ 1 p st; 5 b 37; 10 n 23. Ohio & M. R. Co. V. Wheeler, 1 Black, 286, §§ 1 j i; 1 k 3, 4, 7; 10 k 25. Orner v. Saunders, 3 Dill. 284, § 10 f n. Orosco V. Gagliardo, 22 Cal. 83, §§ 4 d 3; 10 d 3 5; 10 j 9- 11 C 18; 11 h 7. 9. Osborn v. Bank of U. S. 9 Wheat. 738, §§ 1 b 4, 6; 1 c 1, 5• l f i; 1 i 8; 1 1 1; 1 m 2; 10 f 7; 11 b 48. Osborn v. Osborn, 5 Fed. Rep. 389, § 11 f is. Osborne v. Brooklyn City R. R. Co. 5 Blatchf . 366, § 1 o 1. 252 TABLE OF CASES. Osgood V. Chicago etc. E. R. Co. 2 Cent. L. J. 275, 283; 7 Ch. L. N. 2il, §§ 17 b "; 18 b ". Osgood V. Kailroad Co. 6 Biss. 330, §§ 6 note -; 10 o 26; 11 b 35, 4J; 11 j 1; 11 k 1, ^; 12 note; 13 note; 14 d ». Oswald t\ K. Y. 2 JJall. 415, § 1 i ^. Ouachita Co. v. Wolcott, 2 Morr. Trans. 548; S. C. 11 Fed. Rep. 623, § 11 1 13. Owen V. N. Y. Life Ins. Co. 1 Hughes, 322, § 1 k i^. Pacific R. R. Co. v. Ketchum, 101 U. S. 298, § 18 C ^2. Packer v. Nixon, 10 Peters, 410, § 23 a 9. Palmer v. Call, 4 Dill. 5GG, § 11 d w, 15, it. Parish v. Ellis, 16 Peters, 453, § 1 c -i. Park Bank v. Nichols, 4 Biss. 315, § 1 1 3. Parker v. Hotchkiss, 1 Wall. Jr. 269, § 2 a 4, ». Parker v. Overman, 18 How. 137; S. C. Hemp. 692, §§ 10 a 7, IV; 11 b 1^; 11 1 9, 11; 14 a 8; 17 b 1^. Parrott v. Alabama Gold L. Ins. Co. 5 Fed. Rep. 391, §§ 2 ciO; 11 a 5. Parsons v. Bedford, 3 Peters, 433, § 1 c 4, 5. Parsons v. Greenville & C. R. R. Co. 1 Hughes, 279, § 1 k 5. Parsons v. Lyman, 5 Blatchf. 170, §§ 1 a ■*; 1 c ". Partridge v. Insurance Co. 15 AVall. 573, §§ 11 k 6; 11 1 s. Patterson v. Boom Co. 3 Dill. 465; S. C. 98 U. S. 403, § 10 a". Patterson v. Chapman, 13 Blatchf. 395, § 10 n i". Patrie v. Murrav, 43 Barb. 323, § 25 c 4. Pawlet, Town of, v. Clark, 9 Crunch, 292, § 12 a i, 7. Payne v. Hook, 7 Wall. 425; 14 Wall. 252, §§ 1 c 7, 13; 1 r -; 10 a 1^. Payson v. Dietz, 5 Cli. L. N. 434, § 10 f 9. Pechner v. Phoenix Ins. Co. 95 U. S. 183, §§ 5 b iS; 11 b 20. Pennoyer v. Xeff, 95 U. S. 714, § 2 c i«\ Pennsylvania v. Wheeling Br. Co. 13 How. 520, § 1 i 12, Penrose v. Penrose, 1 Fed. Rep. 479, § 11 li i''. People V. Brinkerhoff, 68 N. Y. 259, § 1 e 5. People V. Detroit Sup. Ct. Judges, 41 Mich 31, § 18 C s. People V. Judges, 2 Denio, 197, §§ 4 b 5, ■ ; 10 e s. People V. Judges, 21 Mich. 577, §§ 1 k i^; 11 j 5. People V. Murray, 5 Parker Cr. C. 577, §§ 25 b i; 27 e 1. People V. Superior Court, 34 111. 356, §§ 5 b iS; 11 b 7 24. 11 h 1, '■>, 11, 1^. Perkins v. Morgan, 27 La. An. 229, § 5 b 1. Perry v. Corning, 6 Blatchf. 134, § 1 g 1, i^. Perry v. Littletield, 2 Fed. Rep. 464, § 1 g ^. Perry v. Sharpe, 8 Fed. Rep. 24, §§ 15 a "; 16 a 6. Peters v. Peters, 41 Ga. 242, §§ 6 c 20, 21; 15 c i; 16 a s. Petrocokino v. Stuart, 37 Leg. Int. 30, § 1 m 7. Pettilon V. Noble, 7 Biss. 449, §§ 1 1 «; 10 f S; 10 gS; 11 e 16; 24 a \ TABLE OF CASES. 253 Pettit V. Hope, 2 Fed. Eep. 623, §§ 1 p 3i, 32. Pettus V. Georgia R. R. Co. 3 Woods, 620, § 10 a 8. Peyton v. Bliss, 1 Woolw. 170, §§ 10 f 21; 27 a 5; 27 b 1, 2. Philadelpliia t". Collector, 5 ^Vall. 720, §§ 27 a 4; 27 b 6. Phillips V. Moore, 100 U. S. 208, § 20 note. Phoenix Life Ins. Co. v. Saettel, 33 Ohio St. 278, §§ 11 b si- ll d 3, ^. Picquet v. Swan, 5 Mason, 35, §§ 1 m 4; 1 q 1, 2; 2 b 1, ' ; 10 p IS. Pierpont v. Fowle, 2 Wood. & M. 23, §§ 1 c 3, I6; l h 1. PoUard v. Dwight, 4 Cranch, 421, §§ 1 q 3; 2 b 4- 2 d S; 17 a 5; 17 b 6; 17 g 6. Polte V. Derby, 5 McLean, 328. § 1 h 5. Pomeroy v. Kew York & N. H. P. Co. 4 Blatchf . 120, §§ 1 k -i; 2 c 6. Pond v. Sibley, 7 Fed. Eep. 129, § 10 m le, n Poppe V. Langford, 3 Morr. Trans. 702, § 18 a 19. Porter v. Jane'sville, 3 Fed. Ptep. 617, § 1 p ■2''. Portland, City of, v. Oregonian R, Co. 7 Pac. Coast L. J. 376, § 15 c 3. Postmaster-General v. Cross, 4 Wash. C. C. 326, §§ 1 d i-: 4 C S; 10 O 19. P. M. Genl. v. Early, 12 Wheat. 136, §116. Potter V. Nat. Bank, 102 U. S. 163, § 11 1 15. Pratt V. Albright, 9 Fed. Rep. 634, §§ 10 b 1^; 10 h 2; 11 e3i;17e5. Pratt V. Nonham, 5 Mason, 95, § 1 c '^. Prentiss v. Barton, 1 Brock. 389, §§ 1 j '; 18 a 3. Prentiss v. Brennan, 2 Blatchf. 164, § 1 m 4, 6. Price V. Foreman, 12 Fed. Rep. 641, § 10 u 7, n, 27^ 28. Price V. Sommers, 8 Ch. L. N. 290, §§ 17 b 3, 12, i3; 27 a K Pugsley V. F. S. & T. Co. 2 Tenn. Ch. 130, §§ 5 a 8, 15. 5 b 1; lib 28. Quigley v. C. P. R. R. Co. 11 Kev. 350, §§ 1 k 4; 7 b s, n. Railroad Co. v. Harris, 12 Wall. 65, §§ 1 j 9; 1 k 4. Railroad Co. v. Ketchum, 101 U. S. 289, § 4 c w. Railroad Co. v. Koontz, 3 Morr. Trans. 34, §§ 10 k 1^ ; 11 e33; 11 gl; 11115; 14 b 4. Railroad Co. v. Letson, 2 How. 554, § 1 j 12. Railroad Co. v. Mississippi, 102 U. S. 135, §§ 1 e i; 1 f i; 6 note 1; 10 f ", iS; 11 i i2; 17 a S; 17 g i. Railroad Co. v. Pierce, 27 Ohio St. 155, §§ 4 a lO; 10 k 12. Railroad Co. v. Rock, 4 Wall. 180, § 1 c 2. Railroad Co. v. Wiswall, 23 Wall. 507, § 17 g 1. Railway Co. v. Ramsey, 22 Wall. 328, §§ 11 b 39; 11 19. 14 a": 17 g 8. Railway Co. v. Whitton, 13 Wall. 270, §§ 1 c lO; 1 k s 8 10; 4 a 1, 5; 10 c 11; 10 k 9, 20; u g 8.' Desty Removal.— as. 25i TABLE OF CASES. Raleau v. Bernard, 3 Blatclif. 244, § 1 m 6. Kalpli v. Claiborne, 2 Mart. (La.) 116, § 11 j ^ Eamsey v. Coolbaugh, 13 Iowa, 104, §§ 8 a i; 10 C W; 11 hi»; 11 k^. Eanlett v. Collier White Lead Co. 30 La. An. pt. 1, 56; § 10 b 5, 6. Ratlibone Oil Tract Co. v. Eauch, 5 W. Ya. 79, §§ 4 e 3; lib ^5; 11 f^. Rawle V. Phelps, 8 Fed. Eep. 356, § 4 d u. Kedmond v. Russell, 12 Johns. 153, § 5 a s 3, 4^ i3j 18 a n. Reed v. Bertrand, 4 Wash. C. C. 514, § 1 j ^. Reed v. Calderwood, 22 Cal. 463, § 5 b «. Reife v. Rundle, 103 U. S. 222, § 1 k i^. Removal Cases, 100 U. S. 457, §§ 4 c i''; 6 note 2- 10 g 4; 10 j 1, 3, 6; 10 O 1; 11 C ^; 11 e 4; 11 g 14 15, 16; 11 19. Resp. V. Cobbet, 3 Dall. 467, §§ 10 C -, ^: 10 d i, lo. Reynolds, Ex parte, 3 Hughes, 559, § 25 c n. Rhode Island v. Massachusetts, 12 Peters, 657, § 1 a 2. Rice V. Houston, 13 AN'all. 66, § 4 d i^. Richardson v. Mattison, 5 Biss. 31, § 1 O 3. Richardson v. Packwood, 1 Martin N. S. 290, §§ 5 a i'; 5 b 11. Richmond v. Dreyfous, 1 Sum. 131, § 2 b i. Risley v. Indianapolis B. & W. R. R. Co. 8 N. Y. Supr. 202, § 5 b 11. Rison V. Cribbs, 1 Dill. 184, § 10 c 3. Robb V. Parker, 3 Rich. N. S. 60, § 10 q 3. Robbins v. Fireman's F. Ins. Co. 16 Blatchf. 232, §§ 21 note; 23 a i. Roberts v. Carrington, 2 Hall. 649, § 11 c i. Roberts v. Nelson, 8 Blatchf. 74, §§ 4 b 3, i5, is, 20j 4 c 4. Robinson v. Campbell, 3 W^heat. 212, § 1 c 5, n 13, Robinson v. Potter, 43 N. H. 188, §§ 5 a 9, iS; 11 c «; 18 a 11. Robinson v. Mut. Ben. L. Ins. Co. 16 Blatchf. 201, § 20 a ^ Rogers v. Rogers, 1 Paige, 183, § 10 b 1, w. Romie v. Cassanova, 91 U. S. 380, § 10 f 19. Root V. Lake Shore & Mich. S. R. Co. 11 Fed. Rep. 349, § 10 f 15. Roseufleld v. Adams Expres^ Co. 21 La. An. 233, §§ 1 k 3; 10 k IS; lib 31; llglS. Rubber Co. v. Goodyear, 9 WaU. 809, § 10 b is. Ruble V. Hyde, 3 Fed. Rep. 330, §§ 10 j 6; 10 o iS; 10 q w. Ruckmanu r. Palisades L. Co. 1 Fed. Rep. 367j §§ 6 note 2; lOuSS; lOolS. Rundle y. L>el. & R. Can. Co. 14 How. 80, § 1 k 3. Runkle v. Lamar Ins. Co. 2 Fed. Rep. 9, § 2 c s. 6. TABLE OF CASES, 255 Rush r. Cobbett, 2 Yeates, 275, § 4 b 4, 6^ n. Ryan v. Lee, 10 Fed. Rep. 917, § 1 g 8. Ryan v. Thomas, 4 Wall. 003, § 1 c ^. Ryan v. Young, 11 Ch. L. N. 353, § 10 n 4. Ryan v. Young, 20 Alb. L. J. 79; 8 The Reporter, 229, § 17 a 3. Sackett v. Davis, 3 McLean, 101, § 1 p is. Saddler v. Hudson, 2 Curt. 6, § 2 b i. Sadler r. Hoover, 7 How. 6i6, § 23 a 12, 13. Salem & Lowell R. R. Co. v. Boston & Lowell R. R. Co. 21 Law Reporter, 210, §§ 27 d \ i3; 27 e '. Salt Co. V. Wilkinson, 8 Blatchf. 30, §§ 27 b 6; 27 d 9. Sanders v. Logan, 2 Fish. Pat. Cas. 107, § 1 g i5. Sands v. Smith, 1 Abb. U. S. 368; S. C. 1 Dill. 290, §§ 7 b 5, ^; 10 m 5, 6; 10 p 1, 2; 10 q 5, 6, 10; H g 4 5; H 1 5. 6; Saunders v. Gould, 4 Peters, 392, § 23 a i". Savings Bank v. Benton, 2 Met. (Kv.) 240, §§ 5 a s- 5 b 17. 11 bis, 21, 24. 11 h 13^ 15. Sawyer v. Switzerland M. Ins. Co. 14 Blatchf. 451, §§ 10 d 2; 10 j 9. Sayles v. N. W. Ins. Co. 2 Curt. 212, §§ 10 a 9; 10 k 2", 29. 11 g 4^ 5^ 18. Sayles v. Richmond F. & P. R. R. Co. 3 Hughes, 172, § 1 Schollenberger, Ex parte, 96 U. S. 369, § 2 c e. Schoonmaker v. Gilmore, 102 U. S. 118, § 1 r 24. Schwab V. Hudson, 11 Ch. L. N. 372, § 10 q 12. Scott V. Clinton & Springfield R. R. Co. 6 Biss. 529; S. C. 8 Ch. L. N. 210, §§ 1 i ■■>; 10 a 2I; 11 d s, s 9 is; u fei; 14 d 5; 24 a 21. Scott V. Otis, 10 Ch. L. N. 41, § 11 a 4. Scott V. Sanford, 19 How. 393, § 1 a 3. Scovill V. Shaw, 4 Cliff. 549, § 1 r -5. Scupps V. Campbell, 3 Cent. L. J. 54, § 18 b u. Seckel r. Backhaus, 7 Biss. 354, §i^ 1 o " ; 1 p 26. Second Xat. Bank r. X. Y. Silk Mauuf. Co. 11 Fed. Rep. 532, §§ 10 k 28; 24 a 20. Segee v. Thomas, 3 Blatchf. 11, §§ 2 a i3; 2d'; 2 e ^. Sere v. Pitot, 6 Cranch, 332, § 1 p 3, 'J. Sew. Mach. Cos.' Cas. 18 Wall. 553: S. C. 110 Mass. 70, §§ 1 j 14; 6 b 5; 10 j w; 10 o 1; 10 p 2, is, 22; 10 q n. Seymour v. Phillips, 7 Biss. 460, ^ 1 f i5. Shaft V. Phoenix Mut. L. Ins. Co. 67 K Y. 544, §§ 1 k 4- 11 b 1, 33; 11 g 15^ IT; 11 i 5; 18 b 13. Shainwald v. Lewis, 5 Fed. Rep. 510, § 2 b 6. Sheirburn v. DeCordova, 24 How. 423, § 1 C 4. Shelby v. Hoffman, 7 Ohio St. 453, §§lk3; 5a 24; 5b6; 10 p 19; 11 f 6. 256 TABLE OF CASES. Sheldon v. Keokuk N". W. Line Pack Co. 1 Fed. Eep. 789, § 10 O 13, 22. Sheldon v. Sill, 8 How. 441, §§ 1 a S; 1 b 4; 1 p 2, 28. Shelton v. Tifflin, 6 How. 162, §§ 1 k i; 10 d 6. Shepard v. K. N. L. Pack. Co. 12 Ch. L. N. 220, § 10 O 21. Shepherd v. Young, 1 T. B. Mon. 203, §§ 10 f 22; 11 j 8j 12 a 8. Sherman v. Clark, 3 McLean, 91, § 1 d 7, 8. Sherman v. Windsor Manuf. Co. 11 Fed. Eep. 852, § 17 b 16. Shields v. Barrow, 17 How. 130, §§ 5 b 3; 10 n 23. Short V. Wilson, 1 Bush, 350, §§ 18 a H; 25 b 9; 25 c 7. Shuford V. Cain, 1 Abb. U. S. 302, § 1 p is, 21. Shumway ■;. C. & L R. R. Co. 4 Fed. Eep. 385, §§ 10 a 25; 10U24. Shute V. Davis, Peters C. C. 431, § 1 j 4. Siebrecht v. Butler, 2 Abb. Pr. N. S. 361, § 25 c 2. Silliman v. Hudson Eiv. E. Co. 1 Black, 582, § 23 a 20. Silsby V. Foote, 1 Blatchf . 445, § 19 a 2. Sims V. Sims, 17 Blatchf. 369, §§ 10 g C; 11 f 22. Skeen v. Huntington, 25 Ind. 510, § 25 b ». Slason V. Wright, 14 Vt. 210, § 10 b 1^. Small V. King, 5 McLean, 147, § 1 P -i. Smith, Ex parte, 94 U. S. 455, § 1 f 12. Smith V. Allyn, 1 Paine, 486, § 1 a 3. Smith V. Baker, 31 Leg. Int. 126, § 1 g -3, 25. Smith V. Butler, 38 How. Pr. 192, § 5 b iv. Smith V. Clapp, 15 Peters, 125. § 1 p is. Smith V. Horton, 7 Fed. Eep. 270; 11 The Eeporter, 423, §§ 10] 6; lib 6, 29. Smith V. Jackson, 1 Paine, 453, § 1 b 2. Smith V. Kernochen, 7 How. 198, § 1 O 1. Smith V. McKay, 4 Fed. Eep. 353, §§ 10 j C; 10 o 4, 26. Smith V. Eailroad Co. 99 U. S. 398, § 1 c 6. Smith V. Eines, 2 Sum. 338, §§ 5 b 1, 6; 6 C i"; 10 i 7; 18 a 2, 10. Smith V. Schwed, 11 The Eeporter, 730, §§ 15 c 2, 4; 13 b 5, S; 18 c 10. Smith V. St. Louis M. L. Ins. Co. 2 Tenn. Ch. 656, §§ 10 a 2S; 10 O 6, 26. Smith V. Tuttle, 5 Biss. 159, § 2 a 3. Sneed v. Browulow, 4 Cold. 253, § 11 f 25. Soci. for Prop. Gosp. v. New Haven, 8 Wheat. 464, § 1 m 8. Soustibv V. Keeley, 11 Fed. Rep. 578, and note; § 11 1 13. Southern & A. T. E. Co. v. New Orleans, M. & T. E. Co. 2 Cent. Law J. 88, § 2 c 6. South worth v. Adams, 11 The Eeporter, 46, § 10 c is. Spraggins v. County Court, Cooke, 160, § 14 d i3. TABLE OF CASES. 257 Stanbrough v. Griffin, 52 Iowa, 112, § 10 i i. St. Anthony's F. W. P. Co. v. King Bridge Co. 23 Minn. 186, §§ lie 12; llglS; 11 j 1, 10. St. Lawrence A. & T. K. R. Co. v. Indiana & St. L. R. H. Co. 12 Cb. L. X. 73, § 1 k w. St. Louis Nat. Bk. v. Brinkmau, 1 Fed. Rep. 46, § 1 1 6, 9. Stanley v. Cliicago, R. I. & P. R. R. Co. 3 Cent. L. J. 430; S. C. 62 Mo. 508, §§ 1 k 3; 4 c 5, U; 10 e §; 11 b 3T; 11 Stapleton 'v. Reynolds, 9 Ch. L. N. 33, §§ 10 o 5, w, iS; u e ''. State V. Babcock, 4 Wash. C. C. 345, §§ 1 k iS; 17 b 6; 18 a 2. State V. Bliss, 3 Grant, 427, § 25 b 6. State V. Bolton, 11 Fed. Rep. 217, §§ 27 c 3, 4; 27 d n. State V. Bowen, 8 Rich. N. S. 382, §§ 10 a^; 10 c '-^i; 10 f 3. State V. C. & A. R. R. Co. 6 Biss. 107, §§ 14 d i6; 18 a n. State V. Common Pleas, 15 Ohio St. 377: 3 Ohio, 49, §§ 5 b 6; 25 note; 25 b"; 25 c i, 2. States. Davis, 12 S. C. 528, § 27 c i. State V. Deaver, 77 N. C. 555, § 27 note. State V. Doyle, 40 Wis. 175, 220, §§ 1 k i^; 4 a H; IQ k ^K State V. Dubuclet, 10 Ch. L. X. 132, § 25 a §. State V. Duulap, 65 X. C. 491, §§ 25 note; 25 a «. State V. Emerson, 8 Fed. Rep. 411. § 27 a i. State V. Gaines, 3 Woods, 342, § 25 a «. State V. Gibbons, 1 South, 44, § 14 d 2. State V. Gleason, 12 Fla. 190, §§ 25 a ^^; 25 c 3, State V. Grand Trunk Railway, 3 Fed. Rep. 887, § 10 C 2, 3. State V. Hoskins, 77 K. C. 530, §§ 27 note; 27 c "; 27 e i. State V. Johnson, 29 La. An. 399, §§ 10 c 20 ; 17 g 1. State V. Lewis, 12 Fed. Rep. 1, §§ 1 i u, ^2; 10 d W; 10 m State t'. McBride, Rice, 400, § 1 b «. State v. Port, 3 Fed. Rep. 117, §§ 27 note; 27 a 2; 27 c 2, 4, 5, 6; 27 d 12. State V. Small, 1 Rich. S. C. 262, § 25 a s. State V. Texas Pac. R. R. Co. 3 Woods, 308, § 10 m 12. State V. Tiedermann, 10 Fed. Rep. 20, § 11 C 28. State V. Trust of University, 5 Nat. Bk. Reg. 466, § 1 i n. State Ins. Co. of Alabama, Ex parte, 5 Ala. 464, § 17 g 2. State Lottery Co. v. Fitzpatrick, 3 Wood, 222. § 1 e 7. State Tax Laws, 14 Op. Att.-Gen. 199, § 1 r 23. Steiger v. Bonn, 4 Fed. Rep. 17, § 2 a 6. Stevens v. Cady, 2 Curt. 2U0, § 1 h «. Stevens v. Gladding, 17 How. 447, § 1 h 6. Stevens v. Mack, 5 Blatchf. 514, §§ 27 a S; 27 b 6. Stevens v. Phcenix Ins. Co. 41 N. Y. 149, §§ 1 k i2; 4 c H; lOkie, 17; llgl4, 10. iihii. 258 TABLE OF CASES. Stevens v. Richardson, 13 The Reporter, 678: S. C. 9 Fed. Rep. 191, §§ 2 a 1; 4 c 6, 7; lo o ^\ 24; ii a 9, U; 11 c w ^'''; 17 a 3, Stevenson r. Wilson, 19 Wall. 572, § 11 f --, --', -^. Stewart v. Mordecai, 40 Ga. 1, §§ 6 a i, ^; 6 b &; 7 b 19; 11 Stillwell V. Empire F. Ins. Co. 4 Cent. L. J. 463, § 2 c 6. St. Luke's Hosp. v. Barclay, 3 Blatchf. 259, § 1 m 3. Stoker v. Leavenworth, 7 La. 390, §§ 5 a ^^; 7 b ^; 11 b 20; 11 h 9. Stough V. Hatch, 8 The Reporter, 7; S. C. 16 Blatchf. 233, §§lldi'''; lie w. Straiider v. West Virginia, 100 U. S. 303, §§ 25 note; 25 a ^^ 25 b 2, 4, 12. Strawbridge r. Curtis, 3 Cranch, 267, § 1 j ^^ Strother v. Lucas, 6 Peters, 768; 12 Peters, 410, § 1 C 4. Suydam v. Adni'rs of Hovt, 1 Dutch. 230, § 17 g ^. Suvdam v. Ewing, 2 Blatchf. 359; § 11 1 ", ^ ^. Suydam v. Smith, 1 Denio, 263, §§ 5 a iS; He is. Swann v. Mvers, 70 X. C. 101, § 10 j i". Sweeney v. Comu, 1 Dill. 73, §§ 5 a -, i2; H b 3i, 35. Sweet r. Chicago, R. I. & P. R. R. Co. 11 Fed. Rep. 355, ^§ 6 note 1; 10 O 23; H b ^; 11 g 2, 12; 11 i i:^; 17 b26. Swope V. Leffingwell, 3 Morr. Trans. 602, § 18 a i^. Talcott V. Pine Grove, 1 Flippen, 120, § 11 1 ^i Tanstall v. Madison, 30 La. An. 471, § 1 k ic. Tapley v. Martin, 116 Mass. 275, § 10 p ". Tarver v. Ficklin, 60 Ga. 373, § 10 o i-^; 10 q i^. Tavlor v. Cook, 2 McLean. 516, § 1 j ^i. Tavlor v. Rockefeller, 7 Cent. L. J. 349, ^§ 5 b i; 6 a 5, 6; 10 j 3; 10 U J; 10 O 5, 22; 11 d 1; 11 g W, 13; 11 h 3. Tavlor v. Shaw, 54 N. Y. 75, §§ 7 b »; 11 C 24, 2-5. Taylor v. Ypsilanti, 4 Morr. Trans. 326, § 111 ^s. Teal V. Walker, 10 Ch. L. X. 131, § 1 j «. Tesse v. Phelps, 1 :McA11. 17, § 2 e s. Temple v. Smith, 4 Fed. Rep. 392, §§ 10 1 -i; 10 O 2s. Tennessee v. Davis, 100 U. S. 257: S. C. 10 Cent. L. J. 251, i^^ 1 f 1; 4 a G; 10 f 2; 27 note; 27 c ", '-K TerrV v. Imperial F. Ins. Co. 3 Dill. 408, §§ 4 d ^''; 10 d V; 10 k 26; 24 a ly. Texas v. Texas & Pac. R. R. Co. 3 Woods, 308, §§ 17 b •^; 24 a IS. Texas v. White, 7 Wall. 700, § 1 j 9. Thatcher v. McWilliams, 47 Ga. 306; § 17 f i. Thaxter v. Hatch, 6 McLean, 68, § 1 p i^. Thaver v. Wales, 5 Fish. Pat. Cas. 448, §§ 2 a S; 2 e w. Third Nat. Bk. v. Harrison, 8 Fed. Rep. 721, § 1 1 5. TABLE OF CASES. 259 Thomas v. State, 58 Ala. 365, § 25 a §. Thompson v. Kendricks, 5 Hayw. 115, §§ 12 a 3, i, 5, 6; 17 Thompson v. Eailroad Cos. 6 Wall. 134, §§ 10 1 2; 11 1 5, r. Tliomson v. Lee Co. 3 Wall. 327, § 1 p 32. Tibbatts v. Berrv, 10 Mou. B. 473, §§ 5 b 6; 10 C i". Tifft V. Iron Clad Manuf. Co. 1(3 Blatchf. 48, § 1 f w. Tod V. Fairfield, 15 Ohio St. 377, § 4 a 1. Toland v. Sprague, 12 Peters, 300, §§ 1 q 2; 2 b 1, 2; 2 d 2, 8. Toruey v. Beardsley, 4 Wash. C. C. 242, § 10 c 7. Torrey v. Grant Loco. Wks. 14 Blatchf. 269, §§ 11 c "; 17 d 5, Toucey v. Bowen, 1 Biss. 81, § 11 1 0. ' Towne v. Smith, 1 Wood. & M. 115, § 1 p is. Traders' B'k v. Tallmadge, 9 Fed. Rep. 363, §§ 11 d ^; 11 e20; 18 a '. Trafton v. Xougues, 4 Sawy. 178, §§ 10 a 4; 10 f i", lo, 20 ; lib 4; 17 a 11. Trust Co. V. Maquillan, 3 Dill. 379, § 1 k 4. Tuckerman v. Bigelow, 21 Law Reporter, 208, § 5 b 3. Tunstall v. Madison, 30 La. An. 471, §§ 7 b «, I6; H b 5, 4^; lie 3, 13; 11 h", «, 'J. Turner, Ex parte, 3 Wall. Jr. 258, §§ 5 b 1, ^; 6 C 8; 10 C '; 10 o3'J; 14 di3. Turner v. Athans, 6 Neb. 54, § 1 e 3. Turner r. Bank, 4 Dall. 8, §§ 1 a ^ ^^ 10^ li. 1 b 4; 1 n M; lp40. Turner v. The I. B. & W. R. R. Co. 8 Biss. 280, § 11 g 20^ 21. Turton v. Union Pac. R. R. Co. 3 Dill. 366, §§ 11 h W; 24 a 'J. Tyler v. Hagerty, 10 Ch. L. X. 100, § 10 n s. Union Ins. Co. r. U. S. 6 Wall. 759, §113. Union Mut. L. Ins. Co. v. University of Chicago, 6 Fed. Rep. 443, § 1 r 9. Union Nat. Bank c. Chicago, 3 Ch. L. X. 369, §§ 1 k i3; l 14, 6. U. p. R. R. Co. V. Macomb, 1 Fed. Rep. 799, § 10 f ". Union Sugar Refi. v. Mathiesson, 2 Cliff. 304, § 2 a 2, 6. U. S. V. Alberty, Hemp. 444, §§ 1 a 3, S; 1 n 3. Arredondo, 6 Peters, 691, § 1 a 1. Bailey, 9 Peters, 267, § 22 a 1. Barker, 1 Paine, 156, §114. Bevans, 3 AVheat. 336", § 1 b 6. Bickford, 4 Blatchf. 337, § 1 11 3. Block, 3 Biss. 208, § 1 C i". Bridgman, 8 Am. Law Rec. 541, § 2 a ". Briggs, 5 How. 208, § 22 a 1. Britton, 2 Mason, 464, § 1 n 3. u. , s. V. u. s. V. u. s. V. u. s. V. u. , s. V. u. s. V. u. s. V. u. s. V. u. s. V. 260 TABLE OF CASES. U. S. V. Campbell, 6 Hall L. J. 113, ^ 1 b 9. U. S. V. Chicago, 7 How. 185, § 23 a -. U. S. V. City Bank, 19 How. 385. § 23 a n. U. S. V. Coolidge. 1 Wheat. 415, § 1 n 2. U. S. V. Cornell, 2 Mason, 91, § 1 n 4. U. S. V. Daniel. 6 Wheat. 542, § 22 a 3. U. S. V. Dawson, 101 U. S, 569, § 20 b 2. V. S. V. Drennon, Hemp. 320, § 1 a §. TJ. S. V. Emholt. 11 Fed. Eep. 190, note, § 21 note. U. S. V. French, 1 Gall. 1, § 1 r ^o. U. S. V. Hall, 98 U. S. 34.3, § 1 n 2. U. S. V. Hollidav, 3 Wall. 407, § 1 n i. TJ. S. r. Howland, 4 Wheat. 108, § 1 c n. 12. U. S. V. Hudson, 7 Cranch, 32. §§ 1 a H; 1 n 2. U. S. V. Jackalow, 1 Black, 484. § 1 n 3. TJ. S. V. Jackson, 3 Sawv. 62, ^ 1 e s. U. S. V. Lancaster, 5 Wheat. 4:34, §§ 1 n i^ 21 note. TJ. S- V. Lathrop, 17 Johns. 4, § 1 b 9. TJ. S. V. Mann, 1 Gall. 3, § 1 n 2. U. S. V. McBralney, 3 Morr. Trans. 706, § 1 r 22, TJ. S. V. McDowell, 4 Cranch, 316, § 1 d 12, TJ. S. V. McKee. 4 Dill. 1 ; S. C. 3 Cent. L. J. 292, § 14 d 2, n. TJ. S. V. Isew Bedford Bridge, 1 Wood. & M. 401, §§ 1 b 2, 3- 1 n 63 10, U. S.'?;. Ortega, 11 Wheat. 467, § 1 m 2. TJ. S. V. Ottmau, 1 Hughes, 313, § 15 b •*. U. S. i\ Peters, 5 Cranch, 115, § 1 i ». U. S. V. Planters' Bk. 9 Wheat. 410, § 1 k 3. TJ. S. r. Eathbone, 2 Paine, 578. § 19 a 3. U. S. V. Eavara, 2 Dall. 297, §§ 1 m 2; 1 n 8. U. S. V. Eeese, 4 Sawy. 629, §§^1 n '^•; 21 note. TJ. S. V. Eosenburgh, 7 Wall. 580, § 22 a 2. TJ. S. V. Eoss, 3 AVheat. 600, § 22 a 1. U. S. V. Smith, 1 Hughes, 347, ^112. TJ. S. V. Ta-wan-ga-ca, Hemp. 304. § 1 a w. U. S. V. Terrel, Hemp. 411, 422. § 1 a 3. U. S. V. Tyler. 7 Cranch. 285, § 22 a \ U. S. V. A'an Fosseu, 1 Dill. 411, § 1 r2o. TJ. S. V. Wells, 11 Am. L. Eeg. 424. ^ 1 r 20. U. S. V. Williams, 4 Cranch C. C. 392, § 1 C 1. U. S. V. Williamson, 7 Am. L. Eeg. 11, § 1 b 13. U. S. V. Wood, 2 Wheel. C. C. 325, § 1 n s. U. S. Savings Inst. v. Brockschmidt. 72 111. 370, §§ 11 b 8, 24; lie 19; 11 h". UphoiTt'. Chicago, St. L. & X. O. E. Co. 5 Fed. Eep. 545, §§ 10 k 15. 23. Upton V. i^ew Jersey S. E. E. Co. 25 X. J. Eq. 372, §§ 5 b 18; 6 a 5, Tj 6 c 2; 10 a iC; 10 p n. TABLE OF CASES. 261 Urtetique u. D'Arcy, 9 Peters, 692, § 17 b 6, 25. Van Allen u. Atchison, C. & P. Pv. Co. 3 Fed. Rep. 545, §§ 10 f^ ^0; Hell; 17 d 1,4. Van Antwerp v. Hulburd, 8 Blatchf. 282, §§ 1 j 3; 1 1 lO; 2 6.0, Van Bokkelin v. Cook, 5 Sawy. 587, § 1 p 38, 4i. Van Brunt v. Corbin, 14 Blatchf. 496, §§ 6 C H; 10 C C; 10 O 13. Vandervoort v. Palmer, 4 Duer, 677, §§ 5 b i^; n b 28 so 31, 33; 11 j 2. Vanhorne v. Borrance, 2 Dall. 304, § 1 e 2. Vannevar v. Bryant, 21 Wall. 41: S. G. 106 Mass. 180, §§ 10 j 10; 10 n 23j 10 p 24j ll e 1; 11 f 4, 9, U 21 22 23, 24. Van Zandt v. Maxwell, 2 Blatchf. 421, § 27 b *, lo. Vape V. Mifflin, 4 Wash. C. C. 519, § 10 p is. Varner v. West, 1 Wood, 493, § 1 p i^. Vaughan v. Cent. P. E. R. Co. 14 Pacif. L. Rep. 274, § 1 g 17^ 23 24. Venake u. 'Richards, 1 Hughes, 326, §§ 27 note; 27 d 7. Victor S. M. Co. v. Mingos, 25 Pitts. L. J. 125, § 1 d 9. Victor V. Cisco, 5 Blatchf. 128, § 27 d 9. Virginia, Ex parte, 100 U. S. 339, §§ 25 a 6, 7; 25 b 3, 12. Virginia v. Rives, 100 U. S. 313, §§ 25 a 1, 2, 3 j 25 b 12 ; 25 c 12. Voorhees v. Frisbie, 8 Bank Reg. 154, §§ 1 b W; 1 f 1. Voor V. Fowler, 2 Bond, 294, §§ 1 qS; 2 a s. Vose V. Reed, 1 Woods, 647, § 1 k «. Waggener u. Cheek, 2 Dill. 560, §§ 10 j ', lO; 11 f is, 22^ 24 25. Walker v. Flint, 7 Fed. Rep. 435, § 1 r i3, i5. Walker v. Powers, 3 Morr. Tr. 260, § 10 n 25. Walker v. United States, 4 Wall. 163, § 1 d 1. Walsh V. Memphis C. & N. W. R. R. Co. 6 Fed. Rep. 797, §§ 10 O 6; 18 a 1. Ward V. Arredondo, 1 Paine, 410, §§ 5 a 2, 6^ 24, 25^ 27; 5 b 1, 12, 16; 10 m 1; 11 a 10; 11 f 6; 17 c '. Ward V. Chamberlain, 2 Black, 430, § 23 a 19. Ward V. Todd, 2 Morr. Trans. 1, §§ 1 r H; 11 g 19. Warner v. Fowler, 4 Blatchf. 312, § 27 b 1, 3, t. Warner v. Pennsylvania R. R. Co. 13 Blatchf. 231, § 17 a 13. Warner v. Sisson, 28 N. J. Eq. 117, § 11 d is. Warren v. Ives, 1 Flippen, 356, § 18 b n. Warren v. Pa. R. R. Co. 13 Blatchf. 231, § 11 d 22. Warren v. Wisconsin V. R. R. Co. 6 Biss. 425, § 10 C 12. W^ashington A. & G. R. Co. v. A. & W. R. Co. 19 Gratt. 592, 1§ 5 b 1; 6 f H; 10 j ', i'>; 10 p -, ^^; 11 b 28. 262 TABLE OF CASES. Washington Imp, Co. v. Kansas Pac. E.. Co. 5 DilL 489, § 10 a 11. Waterbury v. City of Laredo, 3 Woods, 371, § 10 1 5. Watt V. White, 40 Tex. 338, §§ 11 d 8; 11 e 2^. Wayman v. Southard, 10 Wheat. 1, § 23 a 2. Wear v. Maver, 6 Fed. Eep. 660, § 20 note. Webber v. Humphreys, 5 Dill. 223, §§ 10 a '^3; 10 h 5. Webre v. Duroc, 15 La. An. 65, § 5 a i; 11 b ^s. Webster r. Cooper, 10 How. 54, § 23 a is. Weed Sew. Mach. Co. v. Smith, 71 111. 204, §§ 11 b s 24; lie 8, 10, n 21; 11 h". Weed Sew. Mach. Co. r. Wicks, 3 Dill. 261, § 11 1 '. AVeeks v. Billings, 55 N. H. 371, §§ 6 C i3, " 16; 10 b i-; 10 p ^6. Wehl 1-. Wald, 18 Blatchf. 163, § 10 f 9. Welch V. Tennent, 4 Cal. 203, §§ 10 p 19; 10 q 2; H b 18 21 _ Wells', In re, 3 Woods, 128; S. C. 17 Alb. L. J. Ill, §§ 14 d5; 25 a^ -^; 25 c i'>; 26 a i. Werthoiu v. Continental E. & T. Co. 12 Fed- Eep. 690, §§111 1, 2; 18b 1. West r. Aurora, 6 Wall. 139, §§ 4 d lO; 5 a ^ 10 b i^; 11 k6, 8. Westcott V. Fairlield, Peters, C C. 45, §§ 1 j 9; 10 p is. AV. U. Tel. Co. V. Dickinson, 40 Ind. 444, §§ 1 k3, i2; 10 ki". West. U. Tel. Co. v. Levi, 47 Ind. 552, §§ 1 d i, «; 4 b i, i9. AVheedon v. Camden & A. E. E. Co. 4 Am. Law Eeg. 296, §lk3. A\"heedon r. Eailroad Co. 1 Grant Cas. 420, § 10 k i". AVheeling v. INIayor, 1 Hughes, 90, § 1 k 9. AVheeling Bridge Cas. 13 How. 421, § 1 c i3. AVheeler v. Liverpool L. Ins. Co. i'6 The Eeporter. - 418, § 11 d 19, 20. AVheeler r. McCormick, 8 Blatchf. 368, § 36 a 3. AVhite r. The Citv, 8 Phila. 241, § 10 b ^\ White V. Fenner, 1 Mason, 520, ^ 1 a 3. AVhite V. Leary, 3 Dill. 378, § 1 p -'». White V. Turk, 12 Peters, 238, § 23 a 15. AVhite V. Vermont & M. E. E. Co. 21 How. 575, § 1 p 30. AVhitehouse v. Continental Ins. Co. 37 Leg. Int. 225: S. C. 2 Fed. Eep. 498, §§ 5 note; 7 a s- 11 d 3, v- H e 13; 11 f 8. Whiting V. AVellington, 10 Fed. Eep. 810, § 1 O 6. Whittier r. Hartford F. Ins. Co. 55 X. H. kl. § 11 f 32. AVickham v. AA'ickham, 27 N. Y. Supr. 239, § 7 a 2. Wiggins r. Chicago & A. E. Co. 11 Fed. Eep. 381, §§ 10:f ": 10 k 19. TABLE OF CASES. 263 Wilcox V. Follett, 10 Ch. L. N. 99, § 17 c -. Wilder v. Union Xat. Bk. 12 Ch. L. X. 75, §§ 10 a 2; 10 f 6. Wilkinson v. Wilkinson, 2 Curt. 582, § 1 p 3, S4. Willes V. Newberry, 4 McLean, 226, § 1 p -i. Williams v. Benedict, 8 How. 107, § 1 c i^. Williams v. Missouri, K. & T. R. Co. 3 Dill. 267, § 10 k 4 Williams v. Town of Xottawa, 3 Morr. Trans. 256, § 1 O 4. Williams v. Price, 5 Munf. 507, § 6 b 12. Williams v. Williams, 24 La. An. 55, §§ 10 p 2S; 11 f :3.5. Williams Mow. & R. Co. v. Eaynor, 7 Biss. 215, §§ 15 a 5. Wilson V. Barnum, 8 How. 258, § 23 a n. Wilson V. Blodgett, 4 McLean, 360, §§ 5 b 1, 3 6- 10 m 3; 10 n 23. Wilson V. City Bank, 5 Bank Reg. 270, § 1 m *. Wilson V. Fisher, Bald. 133, § 1 p 24. Wilson V. Graham, 4 Wash. C C. 53, § 2 d 2, Wilson, County of, v. Nat. Bank, 103 U. S. 770, § 1 1 1. Wilson V. Sandford, 10 How. 99, § 1 g 3. Wilson V. Wall, 6 Wall. 83, § 1 b 9. Wilson Pack Co. v. Hunter, 11 Ch. L. N". 207, § 2 c 8. Winans v. McKean R. &N. Co. 6 Blatchf. 215, §§ 11 g4^ 5. Wisconsin ?j. Duluth, 2 Dill. 406, §§ 1 a 3; 1 i n- 1 k is. Wolf V. Usher, 3 Peters, 269, § 23 a 12, n. Wood V. Davis, 18 How. 467, §§ 5 b 12 ; 10 m i; 11 1 7. Wood V. Dummer, 3 Mason, 308, § 1 p ^'\ Wood V. Matthews, 2 Blatchf. 370, §§ 17 a 5- 27 a 6- 27 bs, 9; 27 d 1,8. Wood V. Wagnan, 2 Cranch, 9, § 11 b S; 17 b is. Wood Paper Co. v. Glen's Falls Co. 8 Blatchf. 513, § 1 g23. Woodman v. Latimer, 2 Fed. Rep. 842, § 1 d 14. Woodson V. Fleck, Chase, 305, § 25 b s. Woolridger. McKenna, 8 Fed. Rep. 650, §§ 2 a H; 10 f 1, 2,9; 11110; 14 b 3. Worcester v. Georgia, 6 Peters. 515, § 1 m n. Wormley v. Wormley, 8 Wheat. 421, § 5 b 12. Wormser v. Dahlman, 16 Blatchf. 319; S. C. 57 How. Pr. 286, §§6 note 1; 6biO; 6cC; 7 a 2; 10 o 5; lOqis. Wormser v. Kline, 57 How. Pr. 280, § 6 note i; 11 b 3i 33. Wright V. Wells, Peters C. C. 220, §§ 4 b is, 20; 4 © 5. Young V. Andes Ins. Co. 3 Cent. L. J. 719, §§ 10 g 2; 11 d 23; 17 a 6; 17 e 2, 4. Young V. Bryan, 6 Wheat. 146, § 1 p 23. Yulee V. Vose, 99 U. S. 539; S. C. 64 N. Y. 449, §§ 5 a i; 6 c4; 10n34; I0qi3; 11 c 25, 26; He 4; H f 10 ; 18 a ^1. Ziuckersen v. Hufschmidt, 1 Cent. L. J. 144, § 4 b 15. INDEX Destt removal.— S3. INDEX. Act— see Eemoval Acts. Actions— against civil officers by aliens, p. 33. action may be removed, pp. 33, 108, § 10 c. to what district removable, p. 34. See Rev. Stats. § 644, and sec. 28 of this book. Alien — jurisdiction over, p. 68, § 1 m. suit against, p. 91, § 5; p. 109, § 10 d. against citizen and, p. 95, § 6. removal of suits in a particular case, p. 203, § 28, Amount— in controversy, p. 56, § 1 d. Amount— in dispute, p. 84, § 4; p. 86, § 4 a. in controversy to authorize removal, jp. 86, § 4 o; p. 110, § 10 e. Ancillary proceedings— jurisdiction over, p. 114, § IDA. Appeal— on remand or refusal to remand, p. 177, § 17 g. Appearance— p. 77, § 2; p. 91, § 5 a. service by publication on failure to appear, p. 78, § 2. Assignee— of chose in action, jurisdiction over, p. V §lp. Assignees— removal of suits by, p. 121, § 10 I. Assignment— to confer jurisdiction, p. 70, § 1 o. Attachment— process by, p. 80, § 2 6. on removal remain in force, p. 168, § 15. in general, p. 169, § 15 a. attachments, power of circuit courts, p. 169, § 15 h. Bail— for appearance, p. 104, § 8 «. Banks— see National. Bond and Security— for removal, p. 142, § 11 c. Cases — arising under Constitution and laws of United States, p. Ill, § 10/. Certiorari — in prosecutions against United States civil officers, p. 202, § 27 e. Citizen — action against alien and, p. 95, § 6. Citizenship— to authorize removal, p. 117, § 10 j. of corporation, p. 118, § 10 k. right of removal dependant on, p. 89, § 4 cZ. qualification as to, p. 93, § 5 6. jurisdiction because of, p. 63, § 1 J 268 CIVIL ACTIONS— CONCURRENT JURISDICTION. Civil actions— removal of, p. 104, § 10. suits removable, p. 105, § 10 a. suits not removable, p. 107, § 10 b. actions removable, p. 108, § 10 c. suits against aliens, p. 109, § 10 d. amount in controversy, p. 110, § 10 e. cases arising under Constitution, laws, and treaties, p. Ill, § 10/. suits pending, p. 113, § 10 .gr, ancillary proceedings, p. 114, § 10 h. controversy between parties, p. 115, § 10 i. citizenship, p. 117, § 10^'. citizenship of corporation, p. 118, § 10 k. assignees, p. 121, § 10 I. nominal parties, p. 123, § 10 m. inseparable controversy, p. 125, § 10 n. the whole controversy removed, p. 128, § 10 o. decisions under Acts of 18GG, 18(j7, p. 131, § 10 p. right to remove, p. 133, § 10 q. Civil cases— in law and equity, p. 54, § 1 c. Civil causes— certificate of division of opinion, p. 187, § 23. Civil rights act— concurrent jurisdiction, p. 5. with district court, p. 29. civil and criminal causes, p. 29. denial of civil rights in State courts, pp. 29, 193, § 25 a. right of removal from State court, p. 30. jurisdiction, how enforced, p. 30. common law when extended, ]i. 30. jurisdictions extended to circuit courts, p. 30. suits for damages for injuries, p. 30. verified petition of defendant, p. 31. certificate of counsel, p. 31. entry on docket of circuit court, p. 31. certiorari to issue to State court, p. 31. habeas corjius when to issue, p. 31. duty of State court, p. 32. proceedings in circuit court, p. 32. misdemeanor to proceed in State court, p. 32. proceedings when a contempt, p. 32. duty of marshal, p. 32. attachments and bail to continue in force, p. 32. default of record, proceedings de novo, p. 32. copies refused, how supplied, p. 33. See Rev. Stats. §§ G41, 042, 646, 643, 645, and sees. 25, 26, 15, 27, 13, of this book. Concurrent jurisdiction— p. 74, § 1 r. CONSTITUTIONAIi PROVISIONS— HABEAS CORPUS ACT. 269 Constitutional provisions— removal of cause, p. 52, § 1 a; p. 85, § 4 a. suits arising under, p. 57, § le; p. Ill, § 10/. Controversies— between citizens of different States, p. 63, § 1 j. final determination of, p. 97, § 6 &. inseparable, p. 125, § 10 7i. the whole must be removed, p. 128, § 10 o. Controversy— between parties, p. 115, § 10 i. Copyright la-ws— suits under, p. 62, § 1 A. Corporations— jurisdiction over, p. do, ^ Ik. service of process on, i?. 81, § 2 c. citizenship of, p. 118, § 10 k. under United States laws, removal of cause by, p. 189, § 24. created by acts of Congress, p. 189, § 24 a. Criminal cases— jurisdiction over, p. 70, § In; p. 194, § 25 6. against United States civil officers, p. 200, § 27 c. Criminal cause — certificate of division of opinion, p. 186, § 22 a. Death of party— revival on, p. 84, § 3. Dismissal— see Eemand. Division of opinion— decision of presiding judge, p. 185, § 21. in criminal causes, p. 186, § 22. certificate, p. 186, § 22 a. in civil causes, certificate, p. 187, § 23. civil suits, p. 187, § 23 a. Error and appeal— from order remanding cause, p. 178, Fact — issues of, tried by jury, p. 184, § 19 a. issues of, tried by court, p. 184, § 20 a. Final determination— of controversy, p. 97, § 6 6. Forms— see Precedents. Georgia— removal of suits in, p. 203, § 29. Government— a party, p. 62, § 1 i. Habeas Corpus— in action against officers, p. 202, § 27 c. Habeas Corpus Act— suits against officers, p. 21. acts during rebellion, p. 21. security for appearance, p. 21. duty of State court to accept security, p. 21. bails discharged, p. 21. copies to be filed iu United States court, p. 21. attachments to remain in force, p. 22. removal of cause to circuit court, i». 22. copies of proceedings to be filed, p. 22. bail and attachment to continue in force, p. 22. 270 HABEAS CORPUS ACT— JURISDICTION. Habeas Corpus Act— Continued. duty of State court, p. 23. appeal or error, when not allowed, p. 23. defendant when to recover double costs, p. 23, right of removal, when may be exercised, p. 23. removal after final judgment, p. 23. further iDroceedings in State court void, p. 24. duty of clerk of State court, p. 24. jurisdiction on refusal of clerk, p. 24. to enforce removal of cause, p. 196, § 26. when petitioner in actual custody, p. 196, § 26 a. See Eev, Stats. 641, 642, 646, and sees. 25, 26, 15, of this book. Injunction — right of removal, p. 96, § 6 a. on removal, remain in force, p. 168, § 15. continuance in force, p. 170, § 15 c. Inseparable controversy— essential to right to remove, p. 125, § 10 n. wliole controversy to be removed, p. 128, § 10 o. Issues— trial by jury, p. 183, § 19. trial by the court, p. 184, § 20. Judicial po"wer — constitutional provisions, p. 52, § 1 a. power of Congress, iJ. 53, § 1 6. Judiciary Act— removal of cause under, p. 13. suits against an alien, p. 13. suits between citizens of different States, p. 13. provisions as to Maine and Kentucky, p. 13. attachments to remain in force, p. 13. actions concerning title to lands, p. 14. amount in dispute, p. 14. trial of issues of fact, p. 14. trials in equity and admiraltv, j). 14. See Eev. Stats. §§ 639, 646, 647, 648, and sees. 4, 12, 15, 19, of this book. Jurisdiction — original, concurrent, appellate, pp. 43, 51. judicial power, constitutional provisions, j). 52, § 1 a. on what authority depends, p. 52, § 1 a. how limited, p. 52, § 1 a. when will be declined, p. 52, § 1 a. power of Congress to confer, ]). 53, § 1 6. when exclusive, j:). 53, § 1 6. when may be qualified, p. 54, § 1 6. power to issue writs, p. 54, § 1 6. civil cases in law and equity, pp. 43, 54, § 1 c amount in controversy, pp. 43, 56, § 1 cZ. suits arising under the Constitution, pp. 43, 57, § 1 e. suits under United States statutes or treaties, pp. 43, 58, § 1/. JURISDICTION" — NEW YORK. 271 Jurisdiction— ron«m?/ec7. suits arising out of patent laws, p. 59, 1 g. suits under copyright and trade-mark, p. 62, § 1 ^. ■where governinent is party, pp. 43, 62, § 1 i. controTersies between citizens of different States, pp. 43, 63, § 1 j. over corporations, p. 65, § 1 k. over national banks, p. 67, § 1 L when alien is party, pp. 43, 68, § 1 m. in criminal cases, pp. 43, 70, § 1 o. concurrent with district court, pp. 4.3, 70, § 1 o. assignment to confer, pp. 43, 70, § 1 o. restriction as to suits by assignee, pp, 44, 70, § 1 o. over assignee of chose in action, p. 71, ^Ip. territorial limit of, pp. 43, 74, § 1 g. concurrent, pp. 43, 74, § 1 r. liens, absent defendants, p. 77, § 2. bow acquired, p. 79, § 2 a. attachment against non-resident, p. 80, § 2 6. process on corporations, p. 81, § 2 c. waiver of irregularities, p. 82, § 2 d. a personal privilege, and may be waived, p. 83, § 2e. revival of suit on death of party, p. 84, § 3. appellate from district court, pp. 44, 52, 76, § 1 r. of circuit court, p. 153, § 11 g. of case removed, p. 180, § 18 a. Jnrisdiction— circuit court of southern district of New York, p. 20(3, § 36 a. Jury — issues of fact, tried by, p. 184, § 19 a. waiver of, p. 184, § 20 a. Kentucky— removal of cause. Judiciary Act, p. 13. causes involving land titles, p. 14. Laws— cases arising,^!!. S. laws, p. Ill, § 10 /; p. 58, § If. coriDorations under U. S. laws, p. 189, § 24. Liens— appearance of parties, p. 77, § 2. jurisdiction, how acquired, p. 79, § 2 a. process by attachment, p. 80, § 2 6. Maine — removal of causes. Judiciary Act, p. 13. causes involving land titles, p. 14. Missouri— transfer of business in courts of, p. 204, § 32. former issuance of process, p. 204, § 33. transfer between eastern and western districts, p. 205, § 34. custody of books, papers, etc., p. 205, § 35. National banks— jurisdiction over, p. 67, § 1 Z; p. 189, § 24. Necessary parties— p. 98, ^Qc. New York— circuit court for southern district, p. 206, § 36. jurisdiction, p. 206. § 36 a. 272 NOMINAL PARTIES — PROCEEDINGS. Nominal parties— not to defeat right to remove, p. 123, § 10 n. Officers — acting under registration laws, removal of suits against, pp. 17, 38, 196, §27. Ohio — removal of suits in. p. 203, § 30. Opinion— division of, pp. 185, 187, §§ 21-23. Parties— necessary, p. 98, § 6 c. controversies "between, p. 115, § 10 j. nominal, not to effect, p. 123, § 10 m. Patent laws — removal of suits under, p. 59, § 1 ^r. Persons— denied civil rights, removal of cause against, p. 191, § 25. denial of civil rights, p. 193, § 25 a. in criminal cases, p. 191, § 25 b. when petitioner in actual custody, p. 196, § 26. habeas corpus, p. 196, § 26 a. Petition— for removal, p. 137, § 11 b. by corporation, p. 190, § 27 fZ. in action against officers, p. 201, § 27 d. See Precedents. Practice and procedure— p. 160, § 11 1. suits against revenue officials, p. 201, § 27 a. Precedents— from liemoval Cases, 100 U. S. 483, p. 207. Burke {resident) v. Flood et al. {residents and non- residents), p. 209. Cummiugs {resident) v. Anderson {non-resident), p. 215. Ealston {resident) v. Sharon et al. {non-resident and resident who has disclaimed all interest in the action), p. 220. Moore (citizen) v. Menzies et al. {aliens), p. 224. Prejudice— and local influence as ground for removal, p. 100, §7. statute construed, p. 101, §7 a. affidavit, requisites of, p. 101, §7 6. bail for appearance, p. 104, § 8 a. Proceedings— ^0 effect removed, p. 103, § 8. for removal of cause, Act of 1875, p. 135, § 11. on entrv of copv of record, p. 104, § 9. effect of, p. 157,"'§ 11 j. application, p. 136, § 11 a. petition, what to contain, p. 137, § 11 6. bond and security, p. 142, § 11 c. at or before the first term, ji. 144, § 11 d. when cause could be first tried, p. 147, § 11 e. time under prior statutes, p. 150, § 11/. jurisdiction of circuit court, when attaches, p. 153, § 11 a. PROCEEDINGS— REM.AXD AND DIS3IISSAL. 273 Proceedings— Continued. proceedings in State courts, i). 155, § 11 h. effect of proceedings for removal, p. 157, § 11 i. order of removal, p. 158, § 11^'. effect of removal, p. 159, § 11 k. practice and procedure in circuit court, p. 160, §11Z. on conflicting land titles, p. 162, § 12 a. Proceedings — on cause removed p. 179, § 18. jurisdiction, when entertained, p. 179, § 18 a. procedure, of original cognizance, p. 181, § 18 b. authority of circuit court, p. 182, § 18 c. issues of fact, when tried by jury, p. 183, § 19. exceptions to trial by jury, p. 184, § 19 a. issues of fact when tried by court, p. 184, §20. waiver of jury trial, p. 184, § 20 a. findings by the court, p. 185, § 20 b. division of opinion; decision by presiding judge, p. 185, §21. division of opinion in criminal causes, p. 186, § 22. criminal cases certified, p. 186, § 22 a. division of opinion in civil causes, j). 187, § 23. civil suits certified, p. 187, § 23 a. Proceedings— in suits on denial of civil rights, p. 195, §25c. Process— issuance of, p. 82, § 2 cZ. waiver of irregularities, p. 82, § 2 cZ. a personal privilege, and may be waived, p. 83, §2 e. not affected by removal, p. 171, § 16. original process, p. 171, § 16 a. Records — procedure on entry of copies of, p. 104, § 9 refusal of clerk to furnish, p. liJ3, § 13. time to file — misfeasance of clerk, p. 1(>4, § 14. certiorari to bring up record, p. 164, § 14. copy of record, p. 165, § 14 a. time to file record, p. 166, § 14 b. duty of clerk, p. 166, § 14 c. certiorari to issue, p. 167, § 14 d. Registration— action against ofiicers of, p. 196, § 27. Remand and dismissal — of cause removed, p. 172, §17. remanding for want of jurisdiction, p. 172, § 17 a. motion to remand, p. 174, § 17 b. for failure to file record, p. 176, § 17 c. sufficiency of bond, p. 177, § 17 d. application too late, p. 177, § 17 e. effect of remand, p. 178, § 17/. order reviewable, p. 178, § 17 [/. 274 REMOVAL ACT OF 1866— REMOVAL ACT OF 1875. Removal Act of 1866— suits against aliens, p. 25. suits between citizens of different States, p. 25. matter in dispute, p. 25. suit for restraining or enjoining, p. 25. suits capable of final determination, p. 25, defendant may remove, p. 25. petition to be filed, p. 25. at any time before trial or final bearing, p. 25. surety for entering copies of process, etc., p. 25. surety for appearance and special bail, p. 25. duty of State court to accept security, p. 25 stay of proceedings in State court, p. 25. cause to proceed in circuit court, p. 25. attachments to remain in force, p. 26. injunctions to remain in force, p. 26. bonds and obligations to remain in force, p. 26. enforcement of obligations in circuit court, p. 26. removal not to prejudice rights of plaintiff, p. 26. copies of proceedings, etc., force and effect of, p. 26. See Rev. Stats. 639, 640, 636, and sees. 4-9 of this book. Removal Act of 1867 — removal for prejudice or local influence, p. 17. at any time before final hearing or trial, p. 27. petition for removal, p. 27. security to be offered, p. 27. duty of State court to accept surety, p. 27. proceedings in circuit court, p. 28. attachments and other process to remain in force, p. 28. See Rev. Stats. §§ 639, 646, and sees. 4, 5, 6, 7, 8, 9, 15, of this book. Removal Act of 1868— corporations. by corporations, or members thereof, p. 28. United States banking corporations excepted, p. 28. verified petition for removal, p. 28. defense arising under Constitution, p. 28. surety to be offered, p. 28. duty of State court to accept security, p. 29. proceedings in circuit court, p. 29. obligations to remain in force, p. 29. See Rev. Stats. §§ 640, 646, and sees. 24, 15, of this book. Removal Act of 1875— any civil suit, pp. 44, 104, § 10. suits pending or hereafter brought, pp. 44, 104, § 10. matter in dispute, pp. 44, 104, § 10. suits arising under Constitution, laws, and treaties, pp. 44, 104, § 10. REMOVAL ACT OF 1875. 275 Removal Act of 1875— Continued. suits -where United States is plaintiff or petitioner, pp. 44, 104, § 10. controversies between citizens of different States, pp. 44, 104, § 10. claims under grants of different States, pp. 44, 104, §10. controversies between citizens and foreign States or aliens, pp. 44, 104, § 10. either party may remove, pp. 44, 135, § 11. when one or more of either party may remove, pp. 44, 135, § 11. proceedings, petition to be filed, pp. 45, 135, § 11. before or at term cause could be first tried, pp. 45,, 135, § 11. and before trial thereof, pp. 45, 135, § 11. to circuit court in district where pending, pp. 45, 135, §11. bond and suificient surety, pp. 45, 135, § 11. for entry of suit on first day of next session, pp. 45, 135, § 11. for payment of costs, pp. 45, 135, § 11. and for appearance and special bail, pp. 45, 135, § 11. duty of State court to accept petition and bond, pp. 45, 135, § 11. State court to proceed no farther, pp. 45, 135, § 11. bail in State court discharged, pp. 45, 133, § 11. cause to proceed in circuit court, pp. 45, 135, § 11. proceedings in controversies respecting lands, pp. 45, 136, § 11. production of evidence, pp. 45, 136, § 11. when precluded from pleading grant, pp. 45, 136, § 11. removal of cause concerning land titles, pp. 46, 136, §11- restriction as to proving title, pp. 46, 136, § 11. trial of issues to be by jury, pp. 46, 136, § 11. exception as to equity and admiralty, pp. 46, 136, § 11. process not affected by, pp. 46, 171, § 16. attachment or sequestration of goods, pp. 46, 171, § 16. bonds, undertakings, or security, pp. 46, 171, § 16. injunction, orders, and proceedings, pp. 46, 171, § 16. dismissal for want of jurisdiction, pp. 47, 172, § 17. parties collusively made or joined, pp. 47, 172, § 17. order as to costs on dismissal, pp. 47, 172, § 17. order of dismissal reviewable on appeal, pp. 47, 172, §17. proceedings in circuit court, pp. 47, 179, § 18. time to file copy of record, pp. 47, 164, § 14. 276 REMOVAL ACT OF 1875. — REMOVAL PROCEEDINGS. Removal Act of 1875— Continued. twenty days, when allowed, pp. 47, 464, § 14. filing an appearance, satisfaction of bond, pp. 47, 164, §14. misfeasance of clerk, pp. 48, 164, § 14, misdemeanor of clerk, pp. 48, 164, § 14. certiorari to bring up record, pp. 48, 164, § 14. when court may dismiss suit, pp. 48, 165, § 14. when court may require pleading de 7iovo, pp.48, 165, §14. "bond as to furnishing copies when discharged, pp. 48, 165, § 14. liens, defendants absent from district, pp. 49, 78, § 2. order directing appearance, pp. 49, 78, § 2. service on absent defendants, pp. 49, 78, § 2. service by publication, pp. 49, 78, § 2. period of publication, pp. 49, 78, § 2. default in appearance, pp. 49, 78, § 2. hearing, and adjudication in absence of party, pp. 49, 78, § 2. what property affected by adjudication, pp. 49, 78, § 2. time for appearance of absentee, pp. 50, 78, § 2. revival on death of party, pp. 50, 84, § 3. representative to file copy of appointment, pp. 50, 84, §o. error or appeal by representative, pp. 50, 84, § 3. death before error or appeal, pp. 50, 84, § 3. repealing clause, p. 50. Removal— of suits under revised statutes, p. 36. constitutional provisions, p. 85, § 4 a. right of removal, p. 88, § 4 c. right dependent on citizenship, p. 89, § 4 a from any State court, p. 90, § 4 e. when suit against alien, p. 91, § 5. appearance, p. 91, § 5 a. qualifications as to citizenship, p. 93, § 5 &. against alien and citizen, p. 95, § 6. injunction, p. 96, § (ia. final determination of controversy, p. 97, § 6 &. necessary parties, p. 98, § 6 c, prejudice and local influence, p. 100, § 7. affidavit of prejudice, etc., p. 101, § 7 a. surety for entering copies of papers, p. 103, § 8. bail — special bail, p. 104, § 8 a. proceedings on entry of copies, p. 104, § 9. Removal proceedings— p. 135, § 11. application, p. 136, § 11 a. petition for, p. 137, § 11 b. REMOVAL PROCEEDINGS. 277 Removal Proceedings— Continued. ■bond and security, p. 142, § 11 c. at or before the first term, p. 144, § 11 d. when cause could be first tried, p. 147, § 11 e. time under prior statutes, p. 150, § 11 /. jurisdiction of circuit court, p. 153, § 11 g. proceedings in State court, p. 155, § 11 h. effect of proceedings for removal, p. 157, § 11 i. order of removal, p. 158, § 11 J. effect of removal, p. 159, § 11 k. practice and procedure, p. 160, § 11 1. land titles from different States, p. 162, § 12. conflicting land grants, p. 162, § 12 a. records refused by clerk of State court, p. 163, § 13. time to file record — misfeasance of clerk, p. 164, § 14. the record, p. 165, § 14 a. time to file record, p. 166, § 14 b. duty of clerk, p. 160, § 14 c. certiorari, p. 167, § 14 cZ. attachments, injunctions, and bonds remain in force, p. 168, § 15. ■writs in general, p. 169, § 15 a. attachments, p. 169, § 15 b. injunctions, p. 170, § 15 c. process not affected by removal, p. 171, § 16. original process, p. 171, § 16 a. dismissal of cause, when, p. 172, § 17. remanding cause, p. 172, § 17 a. motion to remand, p. 174, § 17 b. failure to file record, p. 176, § 17 c sufficiency of bond, p. 177, § 17 d. application too late, p. 177, § 17 e. effect a{ remand, p. 178, § 17/. error and appeal, p. 178, § 17 g. proceedings in circuit court, p. 179, § 18. jurisdiction, p. 179, § 18 a. procedure, p. 181, § 18 6. authority of court, p. 182, § 18 c. issues of fact when tried by jury, p. 183, § 19. trial of issues of fact, p. 184, § 19 a. issues of fact tried by court, p. 184, § 20. waiver of jury trial, p. 184, § 20 a. findings by the court, p. 185, § 20 &. division of opinion in civil causes, p. 185, § 21. division of opinion in criminal causes, p. 186, § 22* criminal causes, p. 186, § 22 a. division of opinion in civil causes, p. 187, § 23. civil suits, p. 187, § 23 a. X)ESTY Removal.— 84. 278 REMOVAL PROCEEDINGS— KEVENUE ACT. Removal PioceedinQS— Continued. removal of suits against corporations organized under United States laws, p. 189, § 2i. corporations created by congressional acts, p. 189, § 24 a. removal of causes against persons denied civil rights, p. 191, § 25, denial of civil rights, p. 193, § 25 a. in criminal cases, p. 19i, § 25 6. in general proceedings, p. 195, § 25 c. when petitioner in actual custody, p. 196, § 26. habeas corpus, p. 196, § 26 a. suits against revenue officers, p. 196, § 27. in general, p. 196, § 27 a. suits removable, p. 199, § 27 &. criminal cases, p. 200, § 27 c. practice and procedure, p. 201, § 27 d. enforcing removal, p. 202, § 27 e. suits by aliens in a particular case, p. 203, § 28. removal of suits in Georgia, p. 203, § 29. removal of suits in Ohio, p. 203, § 30. removal of suits in Tennessee, p. 203, § 31. circuit court in districts of Missouri, p. 204, § 32. process issued out of former court, p. 204, § 33. transfer between districts, p. 205, § 34. custody of books and papers, p. 205, § 35. circuit court for southern district of iSTew York, p. 206, § 36. jurisdiction, p. 206, § 36 a. Revenue Act— removal of causes brought under, p. 15. preceediugs for removal under, p. 15. liresentation of petition, p. 15. duty of clerk of circuit court, p. 15. certiorari, when to issue, p. 15. habeas corj^us, when to issue, p. 15. stay of proceedings in State court, p. 16. duty of marshal under writ, r). 16. attachments and bails to remain in force, p. 16. proceedings de 7iovo, when allowed, p. 16. nonpros^, when entered, p. 16. supplying record and proceedings, p. 16. trial on neglect to furnish copies, p. 17. suits against internal revenue officers, p. 17. petition and affidavit, p. 18. proceedings in circuit court, p. 18. proceedings in State court arrested, p. 18. duty of marshal when defendant in custody, p. 18. attachments and bail continue in force, p. 19. KEVENUE ACT— REVISED STATUTES. 279 Revenue Act— Continued. acts of officers under tax laws, p. 19, property taken irrepleviable, p. 20. misdemeanor to dispossess or rescue, p. 20. repeal of section remanding case, p. 20. See Rev. Stats. §§ 643, 646, 645, 629 and sees. 27, 15, 13, of this book. Revenue oflBcers— removal of suits against, p. 196, § 27. Revised Statutes— removal of suits, p. 34, § 639, p. 84, §4. amount in dispute, p. 34, §639, p. 84, § 4. to circuit court of what district, p. 34, § 639, p. 84, §4. suits against aliens, p. 34, § 639, p. 91, § 5. between citizens of different States, p. 34, § 639, p. 91, § 5. on petition of defendant, p. 34, § 639, p. 91, § 5. at time of entering appearance, p. 34, § 639, p. 91 § 5, against alien and citizen of State, p. 34, § 639, p. 95, §6. against citizen of State and citizen of other State, p. 34, § 639, p. 95, § 6. upon petition of defendant, p. 34, § 639, p. 95, § 6. before trial or final hearing, p. 34, § 639, p. 95, § 6. if brought to restrain or enjoin, p. 34, §639, p. 96, § 6. or where there can be a final determination, p. 34, § 639, p. 96, § 6. renaoval not to prejudice right of plaintiff, p. 34, § 639, p. 96, § 6. removal by plaintiff or defendant, p. 35, § 639, p. 101, §7. before trial or final hearing, p. 35, § 639, p. 101, § 7. affidavit of prejudice or local influence, p. 35, § 639, p. 101, § 7. siifficient surety to be offered, p. 35, § 639, p. 103, § 8. for entering copies of process, etc., p. 36, § 639, p. 103, § 8. security for appearance and special bail, p. 35, § 639, p. 103, § 8. duty of State court, p. 35, § 639, p. 103, § 8. bail originally taken is discharged, p. 35, § 639, p. 103, § 8. proceedings in circuit court, p. 35, § 639, p. 104, § 9. force and effect of copies of pleadings, p. 35, § 639, p. 104, § 9. United States corporations other than banking, p. 36, § 640, p. 189, § 24. suits against members thereof, p. 36, § 640, p. 189, §24.. 280 REVISED STATUTES. Revised Statutes— Coyitinued. removal to district where suit is pending, p. 36, § 640, p. 189, § 24. verified petition, what to state, p. 36, § 640, p. 189, §24. against persons denied civil rights, p. 36, § 641, p. 191, § 25. civil suits or criminal prosecutions, p. 36, § 641, p. 191, § 25. against any officer or other person, p. 36, § 641, p. 191, § 25. for any wrongs under color of office, p. 36, § 641, p. 191, § 25. petition before trial or final hearing, p. 36, § 641, p. 191, § 25. facts to be verified by oath, p. 36, § 641, p. 191, § 25. removal to next circuit court, p. 36, §641, p. 191, §25. further proceedings in State court to cease, p. 37, § 641, p. 192, § 25. bail and security to remain in force, p. 37, § 641, p. 192, § 25. duty of clerk of State court, p. 37, § 641, p. 192, § 25. process pleadings, etc., to be furnished, p. 37, § 641, p. 192, § 25. cause to proceed in circuit court, p. 37, § 641, p. 192, §25. when petitioner may docket case, p. 37, § 641, p. 192, §25. nonsuit and dismissal when, p. 37, § 641, p. 192, § 25. dismissal as a bar, p. 37, § 641, p. 192, § 25. effect of failure of petition to file papers, p. 37, § 641, p. 192, § 25. when petitioner in actual custody, p. 37, § 642, p. 196, § 26. habeas corpus cum causa to issue, p. 38, § 642, p. 196, §26. duty of marshal under writ, p. 38, § 642, p. 196, § 26. suits and prosecutions against revenue officers, p. 38, § 643, p. 196, § 27. against officers under registration laws, p. 38, § 643, p. 196, § 27. against person holding title from officer, p. 38, § 643, p. 196, § 27. acts concerning " elective franchise," p. 38, § 643, p. 197, § 27. removal before trial or final hearing, p. 38, § 643, p. 197, § 27. to circuit court where case pending, p. 38, § 643, p. 197, § 27, REVISED STATUTES. 283 Revised Statutes— Continued. petition, what to set forth, p. 38, § 643, p. 197, § 27. to be verified and certified by counsel, p. 38, § 64,3, p. 197, § 27. certificate of counsel, what to State, p. 38, § 643, p. 197, § 27. cause to be docketed in circuit court, p. 39, § 643, p. 197, § 27. proceedings in circuit court, p. 39, § 643, p. 197, § 27. bail and other security to continue in force, p. 39, § 643, p. 197, § 27. certiorari, when to issue, p. 39, § 643, p. 197, § 27. habeas corpus, when to issue, p. 39, § 643, p. 197, §27. duty of State court to stay proceedings, p. 39, § 643, p. 197, § 27. futher proceedings in State court void, p. 39, § 643, p. 198, § 27. duty of marshal under writ of habeas corpus, p. 39, § 643, p. 198. § 27. when proceedings to be de novo, p. 40, § 643, p. 198, §27. judgment of nonpros., when entered, p. 40, § 643, p. 198, § 27. removal by aliens in particular cases, p. 40, § 644, p. 203, § 28. by alien against civil officer, p. 40, § 644, p. 203, § 28. removal into what district, p. 40, § 644, p. 203, § 28. refusal of copies by clerk of State court, p. 40, § 645, p. 163, § 13. records supplied by affidavit or otherwise, p. 40, § 645, p. 163, § 13. attachments, injunctions, etc., to remain in force, p. 41, § G45, p. 168, § 15. bond of indemnity and obligations to remain in force, p. 41, § 645, p. 168, § 15. removal where parties claim lands, p. 42, § 646, p. 162, § 12. titles derived from different States, p. 42, § 646, p. 162, § 12. affidavit of claim of right, p. 42, § 646, p. 162, § 12. adverse partv, duty and obligations, p. 42, § 646, p. 162, § 12. when party may remove cause, p. 42, § 646, p. 162, §12. removal by defendant, how effected, p. 42, § 646, p. 162, § 12. what title may be proved, p. 42. § 646, p. 162, § 12. 282 KEVn'AL — STATUTES. Revival — on death of party, p. 84, § 3. Right- of removal, p. 88, §4 c, p. 123, § 10 m. right dependent on citizenship, p. 89, § 4 (i. under Act of 1875, p. 133, § 10 g. Service — by publication, p. 78, § 2. on corporation, p. 81, § 2 c. State Court— proceedings in, p. 155, § 11 7i. proceedings not vacated by, p. 182, § 18 c. Statutes — judieiary act, p. 13. revenue act of 1833, p. 15. revenue act of 1866, p. 17. habeas corpus act, p. 21. amendment to habeas corpus act, p. 23. removal act of 1866, p. 25. amendment— act of 1867, p. 27. removal by corporations, p. 28. civil rights act of 1866, p. 29. civil rights act of 1871, p. 30. actions against civil officers, p. 33. revised statutes, removals under, p. 34. suits against corporations, p. 36. against persons denied civil rights, p. 36. when petitioner in actual custody, p. 37. suits and prosecutions against civil officers, p. 38. suits by aliens in particular case, p. 40. copies of record refused by clerk, p. 40. attachments, injunctions, and bonds remain in force, p. 41. suits on conflicting land claims, p. 42. Act of 1875, p. 43. civil action, removal of, p. 44. proceedings for removal, p. 44. process not affected by, p. 46. dismissal, when, p. 47. proceedings in circuit court, p. 47. time of application — misfeasance of clerk, p. 47. revival on death of party, p. 50. repealing clause, p. 50. Statutes of special application, suits against corpora- tions, p. 189, § 24. corporations created under congressional acts, p. 189, § 24 a. causes against persons denied civil rights, p. 191, §25. denial of civil rights, p. 193, § 25 a. in criminal cases, p. 194, § 25 b. in general — proceedings, p. 195, § 25 c. when petitioner in actual custody, p. 196, § 26. STATUTES — WAm:R. 283 statutes— Co n^mwe(^. habeas corpus, p. 196, § 26 a. suits and prosecutions against United States officers, p. 196, § 27. in general, p. 198, § 27 a. suits removable, p. 199, §27 6. criminal cases, p. 200, § 27 c. practice and procedure, p. 201, § 27 d. enforcing removal, p. 202, § 27 e. removal by aliens in a particular case, p. 203, § 28. Suits against aliens— removal of, p. 109, § 10 d. Suits — arising under Constitution, etc., p. 57, § 1 e. under United States statutes, p. 58, § 1/. arising out of patent laws, p. 59, § 1 gr. out of copyright and trade-mark laws, p. 62, § 1 A. where government is party, p. 62, § 1 i. Suits pending— removal of, p." ilo, § 10 g. Suits removable— under Act of 1875, p. 105, § 10 a. not removable, p. 107, § 10 6. against revenue officers, p. 199, § 27 6. Sureties — for entering copies of papers, p, 103, § 8. Tennessee— removal of suits in, p. 203, § 31. Term— at or before first, p. 144, § 11 d. when course could be first tried, p. 147, § 11 e. Territorial limit— of jurisdiction, p. 74, %lq. Time— of application for removal, p. 144, § 11 d. when cause could be first tried, p. 147, § 11 e. under prior statutes, p. 150, § 11 f. Trade-mark laws— suits under, p. 62, § 1 ^. Treaties— suits arising under, p. 58, § 1/, p. Ill, § 10/. Trial— issues of fact when tried by jury, p. 183, § 19. exceptions to trial by jury, p. 184, § 19 a. issues when tried by court, p. 184, § 20. waiver of jury trial, p. 184, § 20 a. findings by the court, p. 185, § 20 6. Undertaking— see Precedents. TTnited States officers— removal of suits, p. 199, § 27. U. S. Statutes — removal of suits under, p. 58, § 1/. Waiver— of jury trial, p. 184, § 20 a. of irregularities, p. 83. § 2 e. B 000 018 888 8