Right to remove.-The right to remove, under Revised Statutes, section six hundred and thirty-nine, attaches in every case (1) where the controversy is between citizens of different States; (2) where the matter in dispute exceeds five hundred dollars, exclusive of costs; (3) under the Act of 1867, the citizen of such other State must file the required affidavit as to local prejudice; and (4) he must give the required security for his appearance. (Johnson v. Monell, I Woolw. 390.) Under the Act of 1875, the affidavit of local prejudice is not necessary. (Allen v. Ryerson, 2 Dill. 501.) It must appear that the contest in the suit is between citizens of different States. (Welch v. Tennent, 4 Cal. 293; Greely v. Townsend, 25 Cal. 604.) The right depends on the citizenship of the persons who are parties to the record, although others have an interest in the suit (Robb v. Parker, 3 Rich. N. S. 60); or on foreign citizenship or alienage. (Fisk v. Union P. R. Co., 6 Blatchf. 364.) Under the Act of 1866, the suit must be brought by a citizen of the State in which it is pending (Amory v. Amory, 95 U. S. 186; Sands v. Smith, 1 Dill. 290; Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472); for if brought by a citizen of another State, or an alien, it cannot be removed (Amory v. Amory, 95 U. S. 186; Sands v. Smith, 1 Dill. 290; Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Knickerbocker L. Ins. Co. v. Gerbach, 70 Pa. St. 150); and taking out letters of administration will not make him a citizen (Amory v. Amory, 95 U. S. 186); 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. (Dart v. Walker, 43 How. Pr. 29. But see McGinnity v. White, 3 Dill. 350.) This section has no reference 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 the suit is brought. (Davis v. Cook, 9 Nev. 134.) Under the Act of 1866 a plaintiff has no right to remove the cause (Sands v. Smith, 1 Dill. 290); but under the Act of 1875 either party may remove, all forming the party on one side being citizens of different States from those on the other. (Ruble v. Hyde, 3 Fed. Rep. 330; 1 McCrary, 513.) The right is confined to the alien or non-resident defendant. (Sew.

Mach. Cos.' Cas., 18 Wall. 553; S. C., 110 Mass. 70.) It applies only where there are two defendants, one of whom is a citizen of another State or an alien. (George v. Pilcher, 28 Gratt. 299; Davis v. Cook, 9 Nev. 134; Goodrich v. Hunton, 29 La. An. 372; Fairchild v. Durand, 8 Abb. Pr. 305; see Schwab v. Hudson, 11 Chic. L. N. 372; Cessel v. McDonald, 16 Blatchf. 150.) If a defendant is sued jointly with others, he may remove, though he afterward becomes sole defendant. (Yulee v. Vose, 99 U. S. 539; S. C., 64 N. Y. 449.) If the defendants are entitled to sever, those only need unite in the petition who are entitled to remove (Lewis v. White, 7 Chic. L. N. 116), and the cause will be removed only as to the defendant who petitions. (Wormser v. Dahlman, 16 Blatchf. 319; S. C., 57 How. Pr. 286.) On a joint application the removal may be granted to one and denied as to the other. (Dart v. Walker, 4 Daly, 188.) The right, if claimed by the mode prescribed, depends on the case disclosed by the pleadings (Barney v. Latham, 103 U. S. 205); and equitable defenses will not prevent a removal. (Tarver v. Ficklin, 60 Ga. 373.)

§ 98.

As relates to parties.-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 defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. ("Plaintiffs or" in Act of March 3, 1875, omitted herein. 25 U. S. Stats. 433.)

See Desty's REMOVAL, sec. 96.

Right dependent on citizenship. The right of removal depends on foreign citizenship or alienage. (Fisk v. U. P. R. Co., 6 Blatchf. 364.) Suits against an alien include only suits between an alien and a State, or a citizen thereof. (Mossman v. Higginson, 4 Dall. 11; Hodgson v. Bowerbank, 5 Crauch, 363.) If both parties to a suit are aliens, there can be no removal (Orosco v. Gagliardo, 22

Cal. 83), nor can there be a removal if plaintiff is an alien (Galvin v. Boutwell, 9 Blatchf. 470); and if a citizen of the State is one of the defendants with an alien, it cannot be removed. (Denniston v. Potts, 19 Miss. 36.) An alien is not a citizen, though the State laws have given him a right to vote. (Lanz v. Randall, 4 Dill. 425.) Resident unnaturalized foreigners may remove causes, although by State laws they may vote or hold office under the State government. (Lanz v. Randall, 4 Dill. 425.) If an alien has merely filed his declaration of intention to become a citizen, he is still an alien. (Lanz v. Randall, 4 Dill. 425.) A foreign_corporation is an alien, and may remove the cause. (Terry v. Imperial F. Ins. Co., 3 Dill. 408.) To authorize a removal, the controversy must be between a citizen of the State where suit is brought and a citizen of another State (West v. Aurora, 6 Wall. 139), and the requisite citizenship must exist at the time of the commencement of the action. (Rawle v. Phelps, 8 Fed. Rep. 356.) That it is sufficient if it existed at the time of the application for removal has also been decided. (McLean v. St. Paul & Chicago R. Co., 16 Blatchf. 309; Jackson v. Mutual Ins. Co., 3 Woods, 413; Jackson v. Ins. Co., 60 Ga. 423; Insurance Co. v. Laettel, 7 Cent. L. J. 378; Curtin v. Decker, 11 The Reporter, 290.) The right founded on citizenship of the parties depends on their citizenship as persons. (Amory v. Amory, 95 U. S. 186.) The citizenship of executors is determined by the State in which they are citizens, and not by the State where they take out letters (Amory v. Amory, 95 U. S. 186; Geyser v. Hancock Mut. Life Ins. Co., 50 N. H. 224); so if an executor or administrator removes to another State, he may sue in the State where his letters were granted. (Rice v. Houston, 13 Wall. 66.) If the action is by or against the deceased, the executor or administrator may prosecute or defend it, without reference to his own citizenship (Clarke v. Matthewson, 12 Peters, 164; S. C., 2 Sum. 262); but if he and the defendant are citizens of the same State, the Federal court has no jurisdiction, although the intestate or testator was a citizen of another State. (Coal Co. v. Blatchford, 11 Wall. 172; Dodge v. Perkins, 4 Mason, 435; Childress v. Emery, 8 Wheat. 642; Carter v. Treadwell, 3 Story, 25; Green's Administratrix v. Creighton, 23 How. 90.)

Qualifications as to citizenship.-Under the first clause of section six hundred and thirty-nine, a case cannot be removed unless all 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 (Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286; Smith v. Rines, 2 Sum. 330; Ward v. Arredondo, 1 Paine, 410; W. A. & G. R. Co. v. A. & W. R. Co., 19 Gratt. 592; Denniston v. Potts, 19 Miss. 36; Pugsley v. Freedmen's S. & T. Co., 2 Tenn. Ch. 130; In re Turner, 3 Wall, Jr. 26, 263; Beery v. Irick, 22 Gratt. 484; Perkins v. Morgan, 27 La. An. 229; Goodrich v. Hunton, 20 La. An. 372; Hazard v. Durant, 9 R. I. 602; Calderwood v. Hager, 20 Cal. 167; Calderwood v. Braly, 28 Cal. 97; Bryan v. Ponder, 23 Ga. 480; Hubbard v. Northern R. Co., 3 Blatchf. 84; Wilson v. Blodgett, 4 McLean, 363; Fiske v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Denniston v. Potts, 19 Miss. 36; Taylor v. Rockefeller, 25 Pitts. L. J. 137; Dunn v. Waggoner, 3 Yerg. 59); so where three out of four were aliens, the application was denied. (Dennistoun v. N. Y. & N. H. R. Co., 1 Hilt. 62; S. C., 2 Abb. Pr. 278.) If an indispensable party was a citizen of the same State with the plaintiff, jurisdiction would be defeated (Commercial etc. Bank of Vicksburg v. Slocomb, 14 Peters, 65; Hagan v. Walker, 14 How. 36; Shields v. Barrow, 17 How. 141; Clearwater v. Meredith, 21 How. 492; Barney v. Baltimore City, 6 Wall. 286; Jones v. Andrews, 10 Wall. 332; Bryant v. Rich, 21 Wall. 41; S. C., 106 Mass. 192; Ober v. Gallagher, 93 U. S. 99; Wilson v. Blodgett, 4 McLean, 363; Imbusch v. Farwell, 1 Blatchf. 571; Tuckerman v. Bigelow, 21 Law Reporter, 208); so if a citizen of a State is joined with a citizen of another State (Hubbard v. Northern R. Co., 3 Blatchf. 84,) or where suit is brought by an alien conjointly with a citizen of the State (Dennistoun v. N. Y. & N. H. R. Co., 1 Hilt. 62; S. C., 2 Abb. Pr. 278, 415), or if some of the defendants are citizens of the State where suit is brought (Hatch v. Chicago, R. I. etc. Co., 6 Blatchf. 105; Wilson v. Blodgett, 4 McLean, 363; Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286; Smith v. Rines, 2 Sum. 338; Calderwood v. Hager, 20 Cal. 167; New Orleans C. & B. Co. v.

Recorder, 27 La. An. 291; State v. Com. 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; Shelby v. Hoffman, 9 Ohio St. 453); 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. (Calderwood v. Hager, 20 Cal. 167.) So in an ejectment case, where but one was an alien, the application was denied (Calderwood v. Hager, 20 Cal. 167; see Reed v. Calderwood, 22 Cal. 463); or if one of the several plaintiffs is a citizen of another State (Hubbard v. Northern R. Co., 3 Blatchf. 84; Ex parte Turner, 3 Wall. Jr. 258; Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Hazard v. Durant, 9 R. I. 602; Knapp v. Railroad Co., 20 Wall. 117); or if the defendants are all citizens of the State where suit is brought (Lifford v. Beatty, 12 Ohio St. 189), or if the defendant was a citizen of the State at the time suit was commenced, it cannot be removed (Ins. Co. v. Pechner, 95 U. S. 183; Richardson v. Packwood, 1 Martin N. S. 290; Risley v. Indianapolis B. & W. R. Co., 8 N. Y. Supr. 202); but the rule does not apply to mere nominal or formal parties. (Brown v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheat. 421; Wood v. Davis, 18 How. 467; Ward v. Arredondo, 1 Paine, 410.) When the writ is served on one alone, he may remove the cause without regard to others named as defendants. (Fallis v. McArthur, 1 Bond, 100; Norton v. Hayes, 4 Denio, 245; Davis v. Cook, 9 Nev. 134.) And if only one partner of a firm is served with process, he may file a petition for removal. (Vandervoort v. Palmer, 4 Duer, 677.) If one defendant is served personally, and the other is served by publication, the one served personally cannot remove. (Bryan v. Ponder, 23 Ga. 480.) It is not necessary that the application be made by all the defendants at the same time; each may apply for removal on his appearance. (Ward v. Arredondo, I Paine, 410.) It must appear that the plaintiff is a citizen of the State in which suit is brought (Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Harrison v. Shorter, 59 Ga. 512; Smith v. Butler, 38 How. Pr. 192; Savings Bank v. Benton, 2 Met. (Ky.) 240), at the commencement of the suit. (People v. Superior Court, 34 Ill. 356; Upton

FED. PROC.-29.