4 Knapp v. Troy & B. R. Co., 87 U. S. 117.

5 Cohn v. Louisville, N. O. & T. R. Co., 39 Fed. Rep. 227.

6 Calker v. O'Neill, 33 Fed. Rep. 374.

7 Schofield v. Demorest, 40 Fed. Rep. 273; Mills v. Newell, 41 Fed. Rep. 529.

8 Niblock v. Alexander, 44 Fed. Rep. 306; Pike v. Floyd, 42 Fed. Rep. 247; Bliss v. Rawson, 43 Ga. 181; Am. Bible Soc. v. Price, 110 U. S. 61; Jefferson v. Driver, 117 U. S. 272; Cambria Iron Co. v. Ashburn, 118 U. S. 54; Hancock v. Holbrook, 119 U. S. 586.

9 Southworth v. Reid, 36 Fed. Rep. 451.

§ 97 h. Any non-resident defendant may remove the cause.-The Act of 1867 extended the right of removal to the non-resident party, whether plaintiff or defendant, while the Act of 1887 restricts it to the non-resident defendant only; but while the earlier act required where there were several defendants, that all must possess the requisite citizenship, and that all must join in the petition for removal on this ground, the Act of 1887 extends the right to "any" defendant_ possessing the requisite qualification as to citizenship.1 In an action brought in Ohio by a citizen of that State against three Ohio corporations and one New York corporation, the New York corporation may have the cause removed into the circit court for that district. The right of removal for local influence does not exist where the controversy is a controversy between a citizen of the State in which suit is brought on one side, and a citizen of the same State and a citizen of another State on the other side. But under the Act of 1888 any defendant citizen of another State may remove the cause pending with a citiz n of the State on one side and a citizen of the same State and a citizen of another State on the other side. Any defendant sued, not in a court of his own State, but in the State court of the plaintiff, may remove, by compliance with the procedure devised for that purpose. If sued in a court of his own State, he cannot remove at all. A non-resident defendant sued in a State court may remove the cause if more than $2,000 is involved, and if the controversy is between citizens of different States, or between citizens and foreign citizens or subjects. 6

1 Fisk v. Henarie, 32 Fed. Rep. 417; Hancock v. Holbrook, 112 U. S. 299; Dill. Rem. Causes, 5th ed. 61.

2 Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849 But see Thouron v. East Tenn. etc. R. Co., 33 Fed. Rep. 673; Anderson v. Bowers, 43 Fed. Rep. 321, contra.

3 Anderson v. Bowers, 43 Fed. Rep. 321.

4 Anderson v. Bowers, 43 Fed. Rep. 321.

5 Gavin v. Vance, 33 Fed. Rep. 85.

6 Fales v. Chicago, M. & St. P. R. Co., 32 Fed. Rep. 573.

L

§ 97 i. Conditions to right to remove.-A party is not entitled to remove on account of prejudice and local influence unless the adverse party is a citizen of the State in which the suit is brought. The affidavit must be in substantial accordance with the words of the statute;2 but it is not generally necessary to state the reasons or facts showing the local prejudice or influence;3 an affidavit "to the best of his knowledge and belief" is sufficient; but that "plaintiff had reason to and does believe that from prejudice he will not be able to obtain justice in the State court," is not sufficient without facts showing the reasonableness of his belief.5 The omission of the words "and does believe" is fatal. It may be made by an agent or attorney; but if made on his belief alone, it is insufficient. A corporation may make the required affidavit by its authorized agent. The affidavit of the secretary of a corporation must show that it is made at the instance or order of the corporation;10 and if made by an officer, there must be proof that he was authorized to make it; but the president or general manager of a railway company is prima facie authorized. 12 The affidavit must be taken and certified in accordance with the laws of the State, 13 and must be authenticated according to such laws;14 and if taken out of the State by a commissioner, it must be certified to by the secretary of State. 15 A commissioner's seal is presumed to be official.16 Objections to the c rtification may be waived by the adverse party," and a failure to object will be deemed a waiver. 18 When fil-d it cannot be contradicted or controverted. 19 This statute does not permit a citizen of the State in which suit is brought to make the application for removal.20 When the defendant is a citizen of the State where suit is brought, plaintiffs cannot remove the case on the ground of local prejudice if one of them is a citizen of the same State, except where the whole controversy can be settled without the presence of the other plaintiffs. 21 But a nonresent plaintiff may remove a cause against a citizen of the State in which suit is brought and a citizen of another

State, the latter of whom voluntarily appears. 22 Intervenors may remove a cause under this section. 23 Removal on account of prejudice and local influence cannot be had unless all the parties upon one side of the controversy are citizens of different States from those of which the parties upon the other side are citizens. 24 It is enough that the diversity of citizenship existed at the time of the application for removal. It need not to have existed at the institution of the action. 25 Where a removal is sought for local prejudice, the application is in time if made before trial or final hearing;26 this provision not being repealed by the Act of 1875.27 It has been held that an application for a removal, made after a trial, is made too late; that the words "before the trial," contained in the U. S. Revised Statutes, sec. 639, subd. 3, mean before any trial. 23 But the words of this statute are "before trial or final hearing," and hence there may be a removal after a decision on a demurrer, 29 or after a reversal by the appellate State court and pending a new trial. 30 The affidavit required for removal by the Local Prejudice Act must show a compliance with all the statutory prerequisites. 31 It may, in the absence of the applicant, be made by his attorney of record for him.32 A case was removed, where the affidavit was sufficient for removal, under subdivision 3 of sec. 639, while the petition made out a case for removal under the Act of 1875, sec. 3.33 The want of an affidavit appearing on the record is ground for a motion to remand. 34 If the cause is removed, and the bond conforms to the Act of 1867, it is sufficient. The Act of 1875 does not apply.35 Under the Act of 1867, the amount in dispute must exceed $500 at the commencement of the action.36

1 Amer. Bible Soc. v. Grove, 101 U. S. 610.

2 Balt. & O. R. Co. v. New Albany R. Co., 53 Ind. 597. See Bowen v. Chase, 7 Blatchf. 255.

3 Anonymous, 1 Dill. 298 note; Meadow V. Min. Co. v. Dodds, 7 Nev. 113; Quigley v. C. P. R. Co., 11 Ne v. 350.

4 Stoker v. Leavenworth, 7 La. An. 390; De Campe v. N. J. M. L. Ins. Co., 2 Sweeny, 481.

5 Sands v. Smith, 1 Dill. 298, note; Goodrich V. Hunton, 29 La. An. 372.

6 Balt. & O. R. Co. v. New Albany R. Co., 53 Ind. 597.

7 Dennis v. Alachua Co., 3 Woods, 683; Kain v. Tex as Pac. R. Co., 3 Cent. L. J. 12. Contra: Miller v. Finn, 1 Neb. 254.

8 Cooper v. Condon. 15 Kans. 572; Tunstall v. Madison, 30 La. An. 471; Burlington P. & C. R. Co. v. N. A. & S. R. Co., 53 Ind. 597.

The rea

on why the party applying does not make the affidavit should be given: Cooper v. Condon, 15 Kans. 572.

9 Insurance Co. v. Dunn, 13 Wall. 214; Farmers' L. & T. Co. v. Maquillan, 3 Dill. 279; Minnett v. M. & St. P R. Co., 3 Dill. 460; Mix v. Andes, Ins. Co., 74 N. Y. 53. See Taylor v. Shew, 54 N. Y. 75; Hatch v. Chicago etc. Co., 6 Blatchf. 380; Bowen v. Chase, 7 Blatchf. 255; Anonymous, 1 Dill. 298, note. Contra: Cooke v. State Nat. Bank, 52 N. Y. 96.

10 Dodge v. N. W. U. Pack. Co., 13 Minn. 458.

11 Dodge v. N. W. U. Pack. Co., 13 Minn. 458; Mahone v. M. & L. R. Co., 111 Mass. 72; Quigley v. C. P. R. Co. 11 Nev. 350.

12 Minnett v. M. & St. P. R. Co., 3 Dill, 460.

13 Bowen v. Chase, 7 Blatchf. 255.

14 Bowen v. Chase, 7 Blatchf. 255; Florence v. Butler, 9 Abb. Pr. N. S. 63.

15 Florence v. Butler, 9 Aɔb. Pr. N. S. 63.

16 Tunstall v. Madison, 30 La. An. 471.

1 Bowen v. Chase, 7 Blatchf. 255.

18 Mix v. Andes Ins. Co., 74 N. Y. 53.

19 Stewart v. Mordecai, 40 Ga. 1.

20 Aldrich v. Crouch, 10 Fed. Rep. 305; Babbitt v. Clark, 2 Morr. Trans. 606; Gurnee v. Brunswick Co., 1 Hughes, 270; Murray v. Holden, 2 Fed. Rep. 740; Forrest v. Keeler, 17 Blatchf. 522; Kerting v. Amer. Oleograph Co., 10 Fed. Rep. 17.

21 Bliss v. Rawson, 43 Ga. 181; Martin v. Coons, 24 La. An. 169. And see Bryant v. Scott, 67 N. C. 391.

22 Akerly v. Vilas, 2 Biss. 110; S. C.. 2 Abb. 284; Sands v. Smith, 1 Dill. 290; S. C., 1 Abb. 368.

23 In re Iowa & M. C. Co., 10 Fed. Rep. 401.

21 Meyers v. Swann, 107 U.S. 546; Jefferson v. Driver, 117 U. S. 272; Hancock v. Holbrook, 519 U. S. 586.

25 Hammon v. Buchanan, 68 Ga. 728; Goodnow v. Grayson, 15 Fed. Rep. 1; Hone v. Dillon, 29 Fed. Rep. 465.

26 Hess v. Reynolds, 113 U. S. 73; Melendy v. Currier, 22 Fed. Rep. 129; Sutherland v. Jersey City & B. R. Co., 22 Fed. Rep. 356.

27 Hess v. Reynolds, 113 U. S. 73; Melendy v. Currier, 22 Fed. Rep. 129. 23 Jones v. Foster, 61 Wis. 25.

29 Field v. Williams, 24 Fed. Rep. 513.

30 Melendy v. Currier, 22 Fed. Rep. 129; Sutherland v. Jersey City & B. R. Co., 22 Fed. Rep. 356.

31 Sutherland v. Jersey City & B. R. Co., 22 Fed. Rep. 356.

32 Hart v. New Orleans, 14 Fed. Rep. 130. And see contra, Duff v. Duff, 31 Fed. Rep. 772, where the court hold that in the case of a natural person a removal cannot be had upon the affidavit of his attorney, agent, or any other person on his behalf.

33 Canal & C. S. R. Co. v. Hart, 114 U. S. 654.

31 Duff v. Duff, 31 Fed. Rep. 772.

35 Gutwillig v. Zuberbier, 28 Fed. Rep. 721; Baltimore & O. R. Co. v. Bates, 119 U. S. 461.

36 Carrick v. Landman, 20 Fed. Rep. 209.

§ 98. Application to circuit court— Trial of issue of fact-Remand.-At any time before the trial of any suit which is now pending in any circuit court, or may hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State court, the circuit court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such State court, it shall cause the same to be remanded thereto. (Clause 5 of the Act of March 3, 1887, 24 U. S. Stats. 552; as corrected August 13, 1888, 25 U. S. Stats. 433, covering the subject of clause 2 of subd. 3 of the Rev. Stats. sec. 639.)

§ 98 a. Application to be made to circuit court. -An application for the removal of a cause on the ground of local influence and prejudice must be made in the first instance and the question of fact must be tried in the Federal court. The application must strictly comply with the Federal statute giving the right of removal for such cause. The application must be supported by such proof as will satisfy the court of the truth of its allegations, and an affidavit not showing that defendant could not obtain justice in some State court, the cause must be remanded to the State court. The mere filing of the petition for the removal and bond in the State court is not of itself a removal.1

1 Kaitel v. Wylie, 38 Fed. Rep. 865.

2 Fleming v. Philadelphia F. Assoc., 76 Ga. 678.

3 Southworth v. Reid, 33 Fed. Rep. 451.

4 Rome & C. C. Co. v. Stansberry (Ga.), Jan. 13, 1890; Beyer v. Soper Lumber Co., 76 Wis. 145; Blackwell v. Lynchburg etc. R. Co., 107 N. C. 217; Huskins v. Cincinnati etc. R. Co. (Tenn.), 37 Fed Rep. 504.