same suit, one of which is wholly between citizens of different States; and the right of removal does not extend to the plaintiffs therein.1

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

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§ 96 b. Right dependent on citizenship.-The right of removal depends on foreign citizenship or alienage. 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 removal if plaintiff is an alien, and if a citizen 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. 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 declaration of intention to become a citizen, he still is an alien.8 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, 10 and the requisite citizenship must exist at the time of the commencement of the action.11 That it is sufficient if it existed at the time of the application for removal has also been decided.12 The right founded on citizenship of the parties depends on their citizenship as persons. The citizenship of executors is determined by the State in which they are citizens, and not by the State where they take out letters;1 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;16 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. 17 Where a town and its taxpayers sued the officers of the State, county and town, and the unknown bond-holders, and obtained a perpetual injunction and a final decree, a citizen of another State, owner of all the bonds, may remove the cause into the circuit court. 13

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1 Fisk v. U. P. R. Co., 6 Blatchf. 304.

2 Mossman v. Higginson, 4 Dall. 12; Hodgson v. Bowerbank, 5 Cranch, 303.

3 Orosco v. Gagliardo, 22 Cal. 83.

4 Galvin v. Boutwell, 9 Clat hf. 470.

5 Denniston v. Potts, 13 Miss. 36.

6 Lanz v. Randall, 4 Dill. 425.

Lanz v. Randall, 4 Dill. 425.

8 Lanz v. Randall, 4 Dill. 425.

9 Terry v. Imp. F. Ins. Co., 3 Dill. 408.

10 West v. Aurora, 6 Wall. 139.

11 Rawle v. Phelps, 8 Fed. Rep. 356.

12 McLean v. St. Paul & Chicago R. Co., 16 Blatchf. 39; Jackson v. Mutual Ins. Co., 3 Woods, 413; Jackson v Ins. Co., 6) Ga. 4.3; Insurance Co. v. Laettel, 7 Cent. L. J. 378; Curtin v. Decker, 11 The Reporter, 290. 13 Amory v. Amory, 95 U. S. 126.

14 Amory v. Amory, 95 U. S. 186; Geyer v. IIancock Mut Life Ins. Co., 50 N. H. 224.

15 Rice v. Houston, 13 Wall. C6.

16 Clarke v. Mathewson, 12 Peters, 164; S. C., 2 Sum, 202.

17 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.

18 Harter v. Kernochan, 103 U. S. 562; Bonham v. Needles, 103 U. S. 648.

96 c. Removal on ground of diverse citizenship. A citizen of one State sued in a court of another State by a citizen of the latter may have the cause removed to the Federal court under the act of March 3, 1887.1 A suit removable on the ground of citizenship must be one commenced by a citizen of the State in which the suit is brought, by process served upon a defendant who is a citizen of another State, and who, if he does not elect to remove, is bound to submit to the jurisdiction of the State court. 2 The Act of 1837 is not unconstitutional. It only gives effect to the c nstitutional provision respecting controversies between citizens of different States, and with that view the single Federal ingredient, the citizenship of defendant in another State, is controlling. 3 Under this act, a citizen of one State, sued in a State court of another State by a citizen of the latter, has the right of removal to the United States circuit court. The difference in citizenship must exist at the time suit was brought, as well as at the time when the petition for removal is filed. If the existence of such diverse citizen

ship at the commencement of the suit as well as when the removal was asked is not affirmatively shown, the cause will be remanded to the State court. Where both parties to a suit are citizens of the State, it cannot be removed unless some Federal question is involved, and this rule applies to corporations existing under State charter. A proceeding to probate a will covering property in two States, the propounders and caveators being citizens of different States, is a suit removable.8

1 Tiffany v Wilce, 34 Fed Rep. 230; Gavin v. Vance, 33 Fed. Rep. 84: Amsinck v Balderston, 41 Fed. Rep. 641; Fales v. Railway Co., 32 Fed. Rep 673; Loomis v. New York C. G. Coal Co., 33 Fed. Rep. 353.

2 West v Aurora, 73 U. S. 139.

3 Whelan v New York L. E. & W. R. Co., 35 Fed. Rep. 849; Fisk v. Henarie, 32 Fed. Rep. 417.

4 Swayne v Boylston Ins. Co., 35 Fed. Rep 1; Fales v. Chicago etc. R. Co, 32 Fed. Rep 673.

5 Gibson v Bruce, 108 U. S. 561; Houston & Tex. Cent. R. Co. v. Shirley, 111 U. S. 358; Mansfield C & L M. R. Co. v. Swan, Id. 379; Smith v Akers ("Akers v Akers"), 117 U S. 197; Metcalf v. Watertown, 128 U. S. 586; Morris v Gilmer, 129 U. S. 315; Stevens v. Nichols, 130 U. S. 230; Mollan v. Torrance, 22 U S. 537; Conolly v Taylor, 27 U. S. 556; Crehore .. Ohio & M. R. Co., 131 U S. 240; Jackson v. Allen, 132 U. S. 27; Seddon v. Virginia etc. Co, (Va.), 36 Fed. Rep. 6; Anderson v. Watt, 138 U. S. 694; Weed S M. Co v. Smith, 71 Ill. 294, United States Sav. Inst. v. Brock schmidt 72 Ill 370; Beebe v. Cheeney, 11 Reporter, 360; Cincinnati Sav. Bank v. Benton, 2 Met. (Ky.), 240; Indianapolis B. & W. R. Co. v. Risley, 50 Ind 60: Holden v. Putnam F Ins. Co, 46 N Y. 1; Kaeiser v. Illinois C. K Co., 6 Fed Rep. 1; Phoenix Ins. Co v. Pechner, 95 U. S. 183; Schnadig v. Flesher 29 Fed. Rep. 465; Hone v Dillon, 29 Fed. Rep 465.

6 La Confiance etc d'Assurance v Hall, 137 U. S. 61; Carter v. Phillips, 144 Mass. 100; Stevens v. Nichols. 130 US, 230.

7 State, New Orleans v New Orleans & N. E. R. Co, 42 La. An. 11. 8 Brodhead v Shoemaker, (Ga.,) 44 Fed. Rep. 518

§ 96 d. Citizenship under Act of March 3, 1875. -Under this section there must be a controversy between citizens of different States when the petition is filed, as well as at the commencement of the suit; and all the parties on one side must be of different citizenship from all the parties on the other side; and one of the parties must be a citizen of the State where suit is brought; for if plaintiff is an alien the defendant cannot remove. Under the first clause of the section, there must be a single controversy in which all the parties on the moving side are necessary parties, when all must unite; all except those who are merely nominal parties; and the party opposed to the petition must be a citizen of the State where suit is

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brought. The circuit court, under this clause, has no jurisdiction between a citizen of one State and citizens of the same State and another State. A case cannot be removed when a part of the defendants are citizens of the State where the suit is brought. 10 So a suit by two citizens of a State against several defendants, one a citizen of same State with plaintiffs as partner, is not removable;11 nor is it removable under the second clause, as there is not a separate controversy between the resident plaintiffs and the non-resident defendants. 12 In a suit between a foreign citizen and citizens of various States the removal was allowed where all but one of the defendants applied. 13 Diversity of citizenship, not residence, must be averred to lay the foundation for a removal. 14 An averment of residence is not equivalent to an averment of citizenship. 15 An affidavit for removal which states that a certain firm is a resident (citizen) of a different State from the one in which the defendant resides (is a citizen) is insufficient. The name and residence (citizenship) of each member of the firm should be clearly stated.16 Citizenship is a question of fact to be determined by the circuit, not by the State, court, when a case for removal is made out of the petition. 17 Filing a declaration of intention to become a citizen does not deprive the declarant of his right of removal, as a foreign subject. 18 A party moving into a State, and showing his intention to become a citizen, cannot deny his citizenship and claim the protection of Federal courts. 19 The diversity of citizenship requisite for a removal must have existed, both when the suit was commenced and when the petition for removal was filed. 20 And if this does not appear on the application, an amendment in the circuit court showing this is not a matter of right and should be refused. 21 Where parties consist of more than one plaintiff or defendant, they must be collectively so situated as to residence, as to authorize a removal. 22 No removal can be had for diversity of citizenship unless all the parties on one side are citizens of different States from those of which the other parties are citizens, 23 Thus A., a citizen of New York, and B., a citizen of New Jersey, sued C., a citizen of Maryland, and D., a subject of Prussia, in the State court. Held, that the suit was removable to the United States

circuit court. 24 Where one of defendants and one of plaintiffs, necessary parties, are citizens of the same State, cause can not be removed. 25 And so when a citizen of a State sues another citizen of the same State, and an alien, the latter is not entitled to remove to the circuit court. 26 If, however, one who is not a citizen is joined with citzens as a defendant, and his interests are so distinct as to be separable from the main controversy, that they may be determined by a single decree in the circuit court. such separable controversy is removable on the basis of the citizenship of the parties thereto. 27 The probate of a will, when the executors and some of the contestants are citizens of the State, is not removable, as it involves no controversy wholly between citizens of different States. 23 The fact that one not a citizen intervenes in an action between two citizens of the same State will not authorize a removal to the Federal court, unless the controversy between the plaintiff and intervenor can be fully determined in the absence of the defendant. 29 A suit by a state in one of its own courts cannot be removed unless arising under United States laws.30 A suit by a citizen of one State against a corporation created under the laws of the same State, but some of whose officers are citizens of other States, is a suit between citizens of different States, and removable. 31 If plaintiff, a trustee, is a citizen of the same State as the defendant, the cause is not removable, although the cestui que trust is a citizen of another State. 32 One who applies to be made defendant, and then files a cross-bill, may have the cause removed for diversity of citizenship. 33 A suit by a citizen of New York against a citizen of New Jersey, as the receiver of a corporation having property in each State, is removable. 34 A cause is removable on the ground of diverse citizenship, which is pending between mill-owners of Rhode Island against a city in Massachusetts, for the diversion of waters of a stream in Massachusetts.35 If on the first removal citizenship is not properly alleged and the cause remanded, this is conclusive as to this cause of removal, and a second removal for the same cause cannot be had. 36 An application to set apart a sum for the support of a widow out of her husband's estate, which is removed on the application of a non-resident creditor, will be remanded, if it appear