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can be exercised only by non-resident defendants. There is but a single controversy, for purpose of removal, in an action on a bond against several defendants, one of them being the principal obligor, and the others his sureties; the only relief sought is a money judgment against all the defendants. + The intention of the amendatory Act of 1887 to restrict removals is so clear that it should be strictly construed against anyone seeking to evade the additional requirements.


1 Reed v. Reed, 31 Fed. Rep. 49; County of Yuba v. Pioneer Gold M. Co., 32 Fed. Rep. 183.

2 Western Union Tel. Co. v. Brown, 32 Fed. Rep. 337.

3 Yuba Co. v. Pioneer G. M. Co., 32 Fed. Rep. 183; Western Union Tel. Co. v. Brown, 32 Fed. Rep. 337.

4 Western Union Tel. Co. v. Brown, 32 Fed. Rep. 337.

5 Dwyer v. Peshall, 32 Fed. Rep. 497.

§ 94 f. Restriction as to nature of suit.-The provision of the Act of Congress of 1887, sec. 2, authorizing the removal into a circuit court of any suit of which such courts "are given original jurisdiction by the preceding section," refers to the general grant of jurisdiction at the beginning of sec. 1, and not to the special regulations as to the district in which a cause of action may be commenced.' Congress never intended to authorize defendant to remove, unless the circuit court had jurisdiction of the subject-matter, and had power to do substantial justice between the parties. Under this act no cause can be removed from the State court to the circuit court unless the circuit court would have had original jurisdiction of the controversy involved in the case. In the Act of March 3, 1875. this restriction did not exist. 3 When a Federal question is not involved and no prejudice or local influence appears, a case can be removed from a State court to a Federal court only when it could have been brought in a Federal court.* Hence a suit brought in Ohio to contest the validity of a will is not removable, the circuit court not having origi.nal jurisdiction in such case. The case as made by the complaint, and as it stood at the time of the petition for removal, is the test of the right to remove the suit. The right is determined on the face of the petition as a matter of law. Where a defendant had lost his right to removal



before the passage of the Act of Congress of March 3, 1887, he could not obtain such right after the passage of that act by any subsequent amendment of pleadings.

1 Amsinck v. Balderston, 41 Fed. Rep. 641; Cooley v. McArthur, 35 Fed. Rep. 372; Fales v. Chicago etc. R. Co. 32 Fed. Rep. 673.

2 Rogers v. Rogers, 1 Paige, 184; Edwards Mfg. Co. v. Sprague, 76 Me. 59; State v. Chicago etc. R. Co. (Iowa) 3 L. R. A. 554.

3 Reed v. Reed, 31 Fed. Rep. 43. See Yuba Co. v. Pioneer Gold Min. Co., 32 Fed. Rep. 183.

4 Laird v. Indemnity Mut. M. Assur, Co., 44 Fed. Rep. 712.

5 Reed v. Reed, 31 Fed. Rep. 49; Gaines v. Fuentes, 92 U. S. 10; Ellis v. Davis, 109 U. S. 485.

6 Graves v. Corbin, 132 U. S. 571.

7 Guinault v. Louisville & N. R. Co., 7 So. Rep. 62.

8 Woolf v. Chisholm, 24 Blatchf. 405.

Where the

§ 94 g. Suits, when not removable. contest is about the fact only, the law being undisputed, there can be no removal on the ground that a federal question is involved. The decision of the questions whether a city under its charter has certain ferry rights, and if so whether defendants have disturbed those rights, does not depend on the Constitution of the United States.2 Where the right of recovery depends alone upon the question whether service of summons was made upon a person who was at the time an agent of the defendant, in no way depends upon the Constitution or any law of the United States.3 A suit brought to recover consideration for the transfer of an interest in letters-patent, in which no issue is made touching the construction of the patent, or its validity or infringement, is not one arising under the patent laws of the United States. Where no law of the United States gives authority to seize goods of one person for the debt of another, such a question cannot be removed to the circuit court.5 No Federal question is raised by the exercise of the police power of a state providing for the abolition of a nuisance on a railroad crossing of a city.

1 Austin v. Gagan (Cal.) 5 L. R. A. 476; Trafton v Nougues, 4 Sawy. 178; Little York G. W. Co. v. Keyes, 96 U. S. 99; McFadden v. Robinson, 10 Sawy. 398; Hambleton v. Duham, 10 Sawy. 487; Theurkauf v. Ireland, 11 Sawy. 512.

2 Starin v. New York, 115 U. S. 248.

3 Germania Ins. Co. v. Wisconsin, 119 U. S. 473.

4 Albright v. Teas, 106 U. S. 613.

5 McKee v. Rains, 77 U. S. 22.

6 Woodruff v. New York & N. E. R. Co., 20 Atl. Rep. 7.

§ 95. Removal of cause as relates to parties.—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. (Clause 2 of section 2 of Act of March 3, 1887, 24 U. S. Stats. 552, corrected August 13, 1888; 25 U. S. Stats. 443, amendatory to clause 2 of section 2 of the Act of March 3, 1875.)

§ 95 a. Any other civil suit.—The nature of the action, and not its form, determines the question whether it is "any suit of a civil nature at law or in equity." Though civil in form, if it be to collect a penalty for violation of the criminal law, it is not a "suit of a civil nature.' "2 The character of cases is always open to examination for the purpose of determining whether the courts of the United States are incompetent to take jurisdiction thereof.3 The record must show upon its face that the suit is removable. A United States circuit court has no jurisdiction of a suit civil in form, but penal in nature, brought by a State officer in his official character to enforce penalties imposed by the State law, where such officer has no personal interest. An action essentially a criminal action, as for unlawfully and knowingly fencing in a certain tract of public and school lands of the State. An indictment of a white man and a negro woman for fornication. An action in its nature penal, to enforce a police regulation, is not removable. 8

1 Iowa v. Chicago etc. R. Co. (Iowa), 37 Fed. Rep. 497.

2 Iowa v. Chicago etc. R. Co. (Iowa), 37 Fed. Rep. 497.

3 Barrow v. Hunton, 99 U. S. 80.

4 Crehore v. Ohio & M. R. Co., 131 U. S. 240; 22 Ohio L. J. 40.

5 Ferguson v. Ross (N. Y.), 33 Fed. Rep. 161.

6 State of Texas v. Day Land and Cattle Co., 41 Fed. Rep. 228.

7 State v. Tutty (Ga.), 41 Fed. Rep. 753.
8 Ferguson v. Ross (N. Y.), 38 Fed. Rep. 161.

§ 95 b. 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 into the jurisdiction of a State court.1 A cause may be removed from any State court, whether of limited or general jurisdiction, if citizenship and amounts are within the statute provisions; but a justice's court is not deemed a State court.3 An action brought by the District of Columbia against an alien cannot be removed. The circuit court for the district within the territorial limits on which the suit is pending is in the "proper district."5 1 Ames v. Colorado Cent. R. R. Co., 4 Dill. 251; S. C., 4 Ceat. L. J. 199.

2 Gaines v. Fuentes, 92 U. S. 10; S. C., 3 Cent. L. J. 371; 8 Ch. L. N. 225.

3 Rathbone Oil Co. v. Rausch, 5 W. Va. 79.

4 Cessel v. McDonald, 57 How. Pr. 175; S. C,. 16 Blatchf. 150. 5 Knowlton v. Congress & Empire S. Co., 13 Blatchf. 170.


§ 95 c. Controversy between parties. statute contemplates a controversy in a suit, and not a mere suit in which there is no defense;1 as where default has been entered; but where nothing to contradict appears of record, the court will presume that there is a controversy between the parties. In determining whether a suit involves a controversy between citizens of different States, the condition of the controversy when the petition is filed is alone to be considered. A controversy is involved whenever any property or claim capable of pecuniary estimation is the subject of litigation, and is presented for judicial determination. 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 remove the cause. 6 A distinct and separate interest is in no sense and under no circumstances connected with that of others. A controversy between a non-resident bond-holder on one side and the county authorities and tax-payers on the other is removable." The right of removal does not exist after a stipulation filed in the State court admitting


the claim." 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;10 but the whole controversy must be removed." It cannot be removed as to one and left pending as to another. 12 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;13 so as to attachment suits. 14 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. When 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. 16 In a suit by a county in Texas against a citizen of Texas and a citizen of another State in which the resident defendant disclaims and makes no further appearance, the controversy is wholly between the county and the non-resident defendant, who is entitled to a removal of the cause. 17


1 Stanbrough v. Griffin, 52 Iowa, 112; Flynn v. Des Moines etc. R. Co., Iowa, 490.

2 Berrian v. Chetwood, 9 Fed. Rep. C78; McCallon v. Waterman, 1 Flippen, 651.

3 Bailey v. Amer. Cent. Ins. Co., 13 The Reporter, 571.

4 Chicago. St. L. & N. O. R. Co. v. McComb, 17 Blatchf. 371.

5 Gaines v. Fuentes, 92 U. S. 10; Lee v. Lec, 8 Peters, 44.

6 First Presb. Soc. v. Goodrich T. Co., 7 Fed. Rep. 257.

7 Smith v. Rines, 2 Sum. 338.

8 Harter Township v. Kernochan, 2 Morr. Trans. 235.

9 Keith v. Levi, 2 Fed. Rep. 743.

10 Low v. Wayne Bank, 14 Blatchf. 440.

11 Ellis v. Sisson, 11 Fed. Rep. 353.

12 Chambers v. Holland, 11 Fed. Rep. 210.

13 Bates v. Days, 11 Fed. Rep. 529.

14 Keith v. Levi, 2 Fed. Rep. 743.

15 Bates v. Days, 11 Fed. Rep. 529.

16 Iowa Home Co. v. Des Moines, etc. R. Co., 13 The Reporter, 383; distinguishing Barney v. Latham, 11 Reporter, 721.

17 Reed v. Hardeman County, 77 Tex. 105.

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