Where the

Western U. Tel. Co. v. Levi, 47 Ind. 552.) right to a removal has become perfect and complete, it cannot be defeated either by release, amendment, or declaring for less than five hundred dollars. (Kanouse v. Martin, 15 How. 198; Green v. Custard, 23 How. 468; Roberts v. Nelson, 8 Blatchf. 74; Wright v. Wells, 1 Peters C. C. 220; contra, Maine v. Gilman, 10 Fed. Rep. 214.) Where the action is brought for less than five hundred dollars, and the answer pleads a counter-claim exceeding that amount, defendant is entitled to remove the whole suit. (Clarkson v. Manson, 18 Blatchf. 443; see Aurora v. West, 6 Wall. 139; S. C., 25 Ind. 148; contra, Falls Wire Manuf. Co. v. Broderick, 6 Fed. Rep. 654; 2 McCrary, 489.) The right of applying creditors to come in and have their claims adjusted and allowed is a mere incident over which the court will necessarily exercise jurisdiction. (N. Y. Silk Manuf. Co. v. Second Nat. Bank, 10 Fed. Rep. 204.) Costs are not recoverable when the amount is less than five hundred dollars. (Brooks v. Phoenix Ins. Co., 16 Blatchf. 182.)

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 (Fisk v. U. P. R. Co., 6 Blatchf. 362), which can neither confer it nor take it away. (Clippinger v. Mo. Val. L. Ins. Co., 22 Int. Rev. Rec. 47; Hatch v. Chicago, R. I. & P. R. Co., 6 Blatchf. 105.) If the right has once become perfect, it cannot be taken away by subsequent amendment (Kanouse v. 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. Co., 6 Blatchf. 105; Fisk v. U. P. R. Co., 6 Blatchf. 362; S. C., 8 Blatchf. 243; Muns v. Dupont, 2 Wash. C. C. 463; Ladd v. Tudor, 3 Wood. & M. 325), neither in the State or Federal court, by release of part of the claim (Gordon v. Longest, 16 Peters, 97; Roberts v. Nelson, 8 Blatchf. 74), or otherwise. (Stanley v. Chicago R. I. & P. R. Co., 3 Cent. L. J. 430; Matthews v. Lyall, 6 McLean, 13; Wright v. Wells, Peters C. C. 220.) A party loses none of his rights to insist upon a removal of the cause by his voluntary appearance (Stevens v. Richardson, 9 Fed. Rep. 191); if he

FED. PROC.-27.

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. (Stevens v. Richardson, 9 Fed. Rep. 191; 20 Blatchf. 53.) 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. (Healy v. Prevost, 25 Int. Rev. Rec. 240; Postmaster-General v. Cross, 4 Wash. C. C. 326; Martin v. Taylor, 1 Wash. C. C. 1.) A party is not precluded by the acts of an attorney appointed for him by the court in his absence. (Fisk v. Fisk, 4 Martin, N. S. 676.) A party failing to obtain a removal loses none of his rights by contesting the suit on its merits. (New Orleans etc. R. Co. v. Mississippi, 102 U. S. 135; The Removal Cases, 100 U. S. 457; Ins. 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; Burke v. Flood, 1 Fed. Rep. 514; 6 Sawy. 220.) Such contesting is not a waiver of his rights. (Insurance Co. v. Dunn, 19 Wall. 214; Gordon v. Longest, 16 Peters, 98; Kanouse v. Martin, 18 How. 198; Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Hadley v. Dunlop, 10 Ohio St. 1; Stanley v. Chicago, R. I. & P. R. Co., 3 Cent. L. J. 430.) The right to a removal may be waived (Home Ins. Co. v. Curtis, 32 Mich. 402), as by agreement by direct consent, or by nonexercise of the right (Hanover Nat.. Bk. v. Smith, 13 Blatchf. 224), as by consenting to a preference (Hanover Nat. Bk. v. Smith, 13 Blatchf. 224), or by stipulation, or any conduct equivalent to a waiver. (Hanover Nat. Bk. v. Smith, 13 Blatchf. 224.)

§ 97. Other suits.-Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought in any State court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State. (25 U. S. Stats. 433.)

See Desty's REMOVAL. sec. 95,

Actions removable.-The fact that the claim is legal, as distinguished from equitable, has no bearing on the question of the right of removal. (Ketchum v. Black River Lumber Co., 4 Fed. Rep. 139.) The right of removal is confined to civil actions (Resp. v. Corbet, 3 Dall. 467; Green v. U. S., 9 Wall. 653; State v. Grand Trunk Railway, 3 Fed. Rep. 887), and does not extend to criminal prosecutions. (Risdon v. Cribbs, 1 Dill. 184; Green v. Ú. S., 9 Wall. 555; State v. Grand Trunk R. Co., 3 Fed. Rep. 887.) So an action of debt upon a recognizance by a State against an alien cannot be removed, as it is of a criminal nature (Resp. v. Corbet, 3 Dall. 467); and an action of tort against several defendants for a conspiracy cannot be removed by part of them under the acts of 1866 or 1867 (Ex parte Andrews, 40 Ala. 639); nor under the act of 1875. (Van Brunt v. Corbin, 14 Blatchf. 496.) An action of ejectment is removable (Bigelow v. Forrest, 9 Wall. 439; Allin v. Robinson, 1 Dill. 119; Ex parte Turner, 3 Wall. Jr. 258; Ex parte Girard, 3 Wall. Jr. 263; Torney v. Beardsley, 4 Wash. C. C. 242; Gale v. Babcock, 4 Wash. C. C. 344; Martin v. Snowden, 18 Gratt. 100), or an action of replevin. (Beecher v. Gillett, 1 Dill. 308; Dennistoun v. Draper, 5 Blatchf. 336.) An action commenced by attachment is removable, though defendant_disputes the attachment only. (Keith v. Levi, 2 Fed. Rep. 743; 1 McCrary, 343.) So of a foreign attachment. (Barney v. Globe Bank, 5 Blatchf. 107; Ramsey v. Coolbaugh, 13 Iowa, 164.) A case instituted to recover damages for death caused by a wrongful act is removable (Railway Co. v. Whitton, 13 Wall. 270; Davis v. Lathrop, 12 Fed. Rep. 353); or an appeal to a State court from an assessment for land taken under the law of eminent domain (Boom Co. v. Patterson, 98 U. S. 403; Warren v. Wisconsin V. R. Co., 6 Biss. 425); or a proceeding by strangers to an estate against a devisee to annul a will (Gaines v. Fuentes, 92 U. S. 10); or a claim on appeal against a public corporation. (Gurnee v. Brunswick, 1 Hughes, 270.) An action brought to establish a lost will is removable (Southworth v. Adams, 9 Biss. 521); or a suit to annul a will, or to recall a decree admitting it to probate (Gaines v. Fuentes, 92 U.S. 10); but a proceeding for the probate of a will (Hargroves v. Redd, 43 Ga. 142;

Tibbatts v. Berry, 10 Mon. B. 473; In re Frazer, 18 Alb. L. J. 353; Fouvergne v. New Orleans, 18 How. 470), or for the caveat of a will, cannot be removed (Hargroves v. Redd, 43 Ga. 142); or a case on appeal for the establishment of claims against deceased. (Du Vivier v. Hopkins, 116 Mass. 125.) A mandamus is not removable on a plea which raises the issue of title to an office (State v. Johnson, 29 La. An. 399), nor is an action in the nature of a quo warranto. (State v. Bowen, 8 Rich. N. S. 382; see Searl v. School District No. 2, 124 U. S. 197; Ames v. Kansas, 111 U. S. 449; McCullough v. Large, 20 Fed. Rep. 309; Colorado Manuf. Co. v. Jones, 29 Fed. Rep. 193; Stafford v. Hightower, 68 Ga. 394; Cleveland etc. R. R. Co. v. McClung, 119 U. S. 454.) A proceeding to ascertain the compensation for land taken for public use is a suit at law, within the meaning of the Constitution and the acts of Congress conferring jurisdiction on Federal courts. (Searl v. School District, 124 U. S. 197; and see Mineral Range R. Co. v. Copper Co., 25 Fed. Rep. 515; Railroad Co. v. Jones, 29 Fed. Rep. 193.)

Controversy between parties.-The statute contemplates a controversy in a suit, and not a mere suit in which there is no defense (Stanbrough v. Griffin, 52 Iowa, 112), as where default has been entered (Berrian v. Chetwood, 9 Fed. Rep. 678; McCallon v. Waterman, 1 Flippin, 651); but where nothing to contradict appears of record, the court will presume that there is a controversy between the parties. (Bailey v. Amer. Cent. Ins. Co., 13 The Reporter, 571.) In determining whether a suit involves a controversy between citizens of different states, the con. dition of the controversy when the petition is filed is alone to be considered. (Chicago, St. L. & N. O. R. Co. v. McComb, 17 Blatchf. 371.) A controversy is involved whenever any property or claim capable of pecuniary estimation is the subject of litigation, and is presented for judicial determination. (Gaines v. Fuentes, 92 U. S. 510; Lee v. Lee, 8 Peters, 44.) Where a negligent act is one and indivisible, there arises but one cause of action, and the plaintiffs are joint parties in interest; there is not a controversy wholly between citizens of different States, so as to enable one of the plaintiffs, a non-resident to re

move the cause. (First Presb. Soc. v. Goodrich T. Co., 7 Fed. Rep. 257; 10 Biss. 312.) A distinct and separate interest is in no sense and under no circumstances connected with that of others. (Smith v. Rhines, 2 Sum. 338.) A controversy between a non-resident bondholder on one side and the county authorities and taxpayers on the other is removable. (Harter Township v. Kernochan, 2 Morr. Trans. 235.) The right of removal does not exist after a stipulation filed in the State court admitting the claim. (Keith v. Levi, 2 Fed. Rep. 743; 1 McCrary, 343.) Where there is a controversy between citizens of different States, and the matter in dispute is sufficient, it is removable, although the case is not one arising under the Constitution and laws or treaties of the United States (Low v. Wayne Bank, 14 Blatchf. 449); but the whole controversy must be removed. (Ellis v. Sisson, 11 Fed. Rep. 353; 11 Biss. 187.) It cannot be removed as to one and left pending as to another. (Chambers v. Holland, 11 Fed. Rep. 210; 3 McCrary, 538.) Non-residents cannot be deprived of their right to have controversies with citizens of other States determined in the Federal courts, and the circuit court cannot relinquish its jurisdiction by transferring the case to the State court (Bates v. Days, 11 Fed. Rep. 529; 5 McCrary, 342); so as to attachment suits. (Keith v. Levi, 3 Fed. Rep. 743; 1 McCrary, 343.) Where a non-resident sued out attachments against a citizen of the State, which were followed by other attachments in the State court, the non-resident is entitled to remove. (Bates v. Days, 11 Fed. Rep. 529.) Where in one suit there are two distinct and separate controversies-one between citizens of the same State, and the other between citizens of different States-the Federal court has no jurisdiction. (Iowa Home Co. v. Des Moines etc. R. Co., 13 The Reporter, 385; distinguishing Barney V. Latham, 11 The Reporter, 721.)

Citizenship.-Under this section there must be a controversy between citizens of different States when the petition is filed (Chicago, St. L. & N. O. R. Co. v. McComb. 17 Blatchf. 371; Curtin v. Decker, 5 Fed. Rep. 385; Beebe v. Cheeney, 11 The Reporter, 388; see Removal Cases, 100 U. S. 457; Bruce v. Gibson, 9 Fed. Rep. 540), as well