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An answer filed by the defendant may be treated as an amendment to the petition.29 It was held, however, that a petition, subsequently presented to the State court, could not be treated as an amendment 30 It has been said that leave to file an amendment cannot be granted upon the hearing of a motion to remand.31
It was held, where the defendant admitted upon the trial the falsity of an allegation in his petition, that the petition should be treated as if amended accordingly.82
Formerly an amendment was not allowed in the Supreme Court, 33 nor in the Circuit Court of Appeals ; 34 except by consent, when it was permitted.35 Formerly a denial of an application for leave to amend the petition for removal, made by the State court after a remand, could be reviewed by the Supreme Court of the United States upon writ of error.36 Where the removal was unauthorized, the District Court has no power to make a change of the parties to the suit, so as to retain the jurisdiction.3
§ 547. Bond. The Judicial Code requires that the party who files a petition for a removal “shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such District Court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said District Court if said District Court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and
29 Carson v. Dunham, 121. U. S. 421, 30 L. ed. 992.
30 Waite v. Phoenix Ins. Co., 62 Fed. 769.
31 Key V. West Kentucky Coal Co., 237 Fed. 258.
32 Koshland v. • Ilome Mut. Ins. Co., 31 Or. 321, 49 Pac. 864.
33 Cameron v. Hodges, 127 U. S. 322, 32 L. ed. 132.
34 Grand Trunk Ry. Co. Twitchell, 59 Fed. 727, 8 C. C. A. 237, 21 U. S. App. 45; where sufficient to justify a removal appeared
in the bill of exceptions and in the bond filed with the petition for the writ of error.
35 Kansas City Southern Ry. Co. v. Prunty (C. C. A.), 133 Fed. 13, 17.
36 (arr v. Nichols, 157 U. S. 370, 15 Sup. Ct. 640, 39 L. ed. 736; af. firming Nichols v. Stevens, 123 Mo. 96, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514.
37 Walser v. Memphis, C. & N. W. Ry. ('o., 19 Fed. 152.
entering special bail in such suit if special bail was originally requisite therein." 1
The bond required upon a removal for prejudice or local influence is the same as that in ordinary cases of removal for difference of citizenship.?
The bond must be filed at or before the time to answer expires.3 An order cannot be made thereafter, allowing the bond to be filed nunc pro tunc as of the date of filing the petition. It seems, that, if the bond is filed before the time to remove expires, the fact that it was filed after the petition is immaterial.5
A bond is sufficient which follows substantially the language of the statute. 6
A bond conditioned simply that the petitioner shall file in the District Court "copies of all process''7 is insufficient. That the copy be filed “on or before the first day of the next regular session," instead of "within thirty days from the date of the filing of said petition" 8 is insufficient. So is a bond conditioned on the filing of the record either in the District
$ 547. 1 Jud. Code, & 29, 36 St. at L., 1087, re-enacting 25 St. at I.., p. 433, $ 3.
2 Bates v. Baltimore & O. R. Co., 39 Ohio St. 157; reversing Baltimore & 0. R. Co. v. Bates, 119 U. S. 464, 7 Sup. Ct. 205, 30 L. ed. 436; and overruling Gutwilling v. Zuberbier, 28 Fed. 721.
3 Austin v. Gagan, 39 Fed. 626, 5 L. R. A. 467. See also Wilcox & Gibbs Sewing Mach. Co. v. Follett, Fed. Cas. No. 17,643, 2 Flippin, 263. But see Campbell v. Wallen 's Lessee, 8 Tenn. (Mart. & Y.) 266.
5 ('ampbell v. Wallen's Lessee, 8 Tenn. (Mart. & Y.) 266.
But see Kirkpatrick v. Hopkins (Penn.), 2 Miles, 277; Best v. New York Life Ins. Co. (Ohio), 2 Cin. Super. Ct. Rep'r. 329.
6 Cooke v. Seligman, 7 Fed. 263; Ellis v. Atlantic & P. R. Co., 134 Mass. 338.
Fed. Prac. Vol. III-51
7 Burdick v. Hale, Fed. Cas. No. 5,147 (7 Biss. 96). And when it misdescribed the defendant as individual, instead of a corporation, although his name was part of that of the company.
Alexandria Nat. Bank v. Willis C. Bates Co., C. C. A., 160 Fed. 839.
Under the statute of Florida which provides that a foreign corporation not complying with its requirements to authorize the doing of business in the state cannot take advantage of such noncompliance, but bound by its contracts. Brady v. J. B. M'Crary Co., 244 Fed. 603. A bond is not invalid because it does not show that a foreign corporation which executed it had complied with the statute.
8 Missouri, K. & T. Ry. Co. v. Chappell, 206 Fed. 688; but see State Improvement Development Co. v. Leininger, 226 Fed. 884.
Court for the district wherein the action was begun or in the District Court for another district; 9 but a bond is not fatally defective because it provides for the filing of the transcript in the wrong division of the District Court of the United States. 10
The bond must provide for the payment of costs in case of a remand.11 It has been held that a bond, defective in that respect, is not cured by a provision that the removing parties shall “do such other appropriate acts as by the Act of Congress in that behalf are required.'' 12
Where special bail was not originally required in the State court, the bond need contain no condition for the entry of such bail in the Federal court.18 The provision for the special bail in the bond must be made as an undertaking for the personal appearance of a party, not as a delivery bond for property attached in the State court.14 Where special bail is given, and the bail wish to surrender the principal after the removal, such surrender must be made in open court, and not by his summary seizure and commitment to jail, according to the State law; but when a party was so committed, the court of the United States, upon the petition of the bail, granted a writ of habeas corpus to bring him into court for surrender, in discharge of his bail.15
It has been held that, when only one of several defendants
9 Webb v. Southern Ry. Co., C. C. A., 248 Fed. 618.
10 Hodge v. Chicago & A. Ry. Co., 121 Fed. 48, 57 C. C. A. 388.
11 Torrey v. Grant L. Works, Fed. Cas. No. 14,105, 14 Blatchf. 269; Webber v. Bishop, 13 Fed. 49; Sheldrick v. Cockcroft, 27 Fed. 579. It has been held, however, that such omission may
be cured by amendment. Dennis Alachua County, Fed. Cas. No. 3,791, 3 Woods, 683, 688; Deford, Hinkle & Co. v. Mehaffy, 13 Fed. 481, 487.
12 Harrold v. Arrington, 64 Tex. 233. But see Cooke v. Seligman, 7 Fed. 263 (17 Blatchf. 452). A condition for the entry of an ap
in the United States court and for the payment of such costs as might accrue in quence of the "improper removal of said cause') was held to be sufficient. Hayes v. Todd, 34 Fla. 233, 15 So. Rep. 752.
13 Burck v. Taylor, 39 Fed. 581; judgment affirmed, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. ed. 578;. Preston v. McNeil Lumber Co., 143 Fed. 555. But see Bell v. Bell, 3 W. Va. 183.
14 Ramsey v. Coolbaugh, 13 Iowa 164.
15 Holbrook Seagraves, Fed Cas. No. 6,593 (1 Story 546).
has been served, the bond need not be conditioned for the appearance of any defendant, except the one served.16
It is the proper practice to insert in the bond, a specified sum, as the penalty for a failure to comply with the condition.17 A penalty of five hundred dollars has been held to be sufficient, · when the defendant had not been held to bail.18 Where the
amount of the penalty was left in blank, the bond was held to be • insufficient.19 It has been held that an omission of any penalty
from the bond is not a ground for a remand ; 20 but that the State court may, for this reason, refuse its approval of the bond.21
The bond must be conditioned, that the petitioning party will take the necessary steps to affect the removal; and a bond conditioned that one, not a party to the suit, will perform the required acts, is insufficient.22 The obligee should be the plaintiff and not the people 23 It has been held that a formal de
16 Vandevoort v. Palmer, 11 N. Y. Super. Ct. (4 Duer) 677.
17 Quoted with approval in Kentucky v. Louisville Bridge Co., 42 Fed. 241; Johnson v. F. C. Austin Mfg. Co., 76 Fed. 616; Groton Bridge & Mfg. Co. v. American Bridge Co., 137 Fed. 284, 292; Quarrier v. Baltimore & 0. R. Co., 20 W. Va. 424.
18 Kentucky v. Louisville B. Co., 12 Fed. 241; Groton Bridge & Mfg. Co. v. American Bridge Co., 137. Fed. 284, 291. In New York, a penalty of one thousand dollars was held to be sufficient, in a suit to recover damages for fourteen thousand dollars, when the defendant had not been held to bail. Blanchard v. Dwight, 12 Wendell (N. Y.) 192.
19 Burdick v. Hale, Fed. Cas. No. 2,147, 7 Biss. 96; Austin v. Gagan, 39 Fed. 626.
20 Johnson v. F. C. Austin Mfg. Co., 76 Fed. 616.
21 Quarrier v. Baltimore & O. R. Co., 20 W. Va. 424.
22 Clippinger v. Missouri Val. Life Ins. Co., 26 Ohio St. 404.
23 Grow v. Wiman, 3 N. Y. St. Rep. 281.
Where the name of the obligee was misspelled and the bond contained interlineations not properly authenticated; it was held that the bond, although not void, was properly rejected by the State court. Greacen v. Beam, 15 N. J. Law (3 J. S. Green) 460. It has been held that the bond must be joint and several; Roberts v. Carrington, 2 N. Y. Super. Ct. (2 Hall) 694; Hazard v. Durand, 9 R. I. 602; but that it need not be executed by the petitioner, provided it have a principal and a sufficient surety. Stevens v. Richardson, 20 Blatchf. 53; s. C., 9 Fed. 191; Public G. & S. Exch. v. W. U. Tel. Co., 16 Fed. 289; s. c., 11 Biss. 568; People's Bank of Greenville Ætna Ins. Co., 53 Fed. 161. Contra, Rough v. Booth
fendant, who is a nominal party and has not joined 'in the petition, and whose citizenship does not affect the jurisdiction, can be a surety 24 It is the better practice to have the bond sealed by the principal and surety.25 It has been held when the State statutes so provide, that the initial letters “L. S." or the word “Seal” may be a sufficient substitute for the affixture of a formal seal to a document.26 A scrawl set without wax, or an impression on the paper, will be sufficient, at least in a State, by the law of which such scrawl or impression is equivalent to a seal;
27 and when the State statute makes a bond valid without a seal,28 or provides that an omission of a seal shall not affect the validity of any document, the bond is sufficient, although no formal seal is affixed to the same.
When the petitioner is named as principal, the bond may be executed in his name by his attorney at law, 30 and execution thereof by him, without his client's authority, may be ratified by the client at any time before an order for a remand.31 Where the petitioner is a corporation, it is the proper practice to affix the corporate seal, together with proof that the person who signs and seals the same has authority to do so.32
An attorney at law is a sufficient surety, if he is accepted by
(California), 3 Pac. 91; Weed Sewing Mach. Co. v. Smith, 71 Ill. 204; Farmers' Loan & Trust Co. v. Lake Street El. R. Co., 173 Ill. 439, 51 N. E. 55 (affirming 68 Ill. App. 666).
24 Steiner v. Mathewson, 77 Ga. 657.
25 Speer on Removal of Causes,
26 G. V. B. Min. Co. v. First Nat. Bank, 95 Fed. 23, 33, 36 C. C. A. 663.
27 U. S. v. Stephenson, Fed. Cas. No. 16,386, 1 McLean 462; Loop v. Winters' Estate, 115 Fed. 362, 363.
28 G. V. B. Min. Co. v. First Nat. Bank, 95 Fed. 23, 33, 36 C. C. A. 633.
29 Loop v. Winters' Estate, 115 Fed. 362.
30 Dennis Alachua County, Fed. Cas. No. 3,791, 3 Woods 683, 687.
31 Ashe v. Union Cent. Life Ins. Co., 115 Fed. 234. Where the sur. ety is a corporation, an affidavit by the subscribing witness, that he saw the corporate seal affixed to the bond, and that he saw the signer “attorney in fact of said” corporation sign the same, is sufficient proof of the authority of the attorney, although no copy of the power of attorney is annexed. Mutual Life Ins. Co. v. Langley, 145 Fed. 415, 418.
32 Alexandria Nat. Bank v. Willis C. Bates Co., C. C. A., 160 Fed. 839, holding that, in the absence of such proof, a bond signed and sealed by the