18 Home L. Ins. Co. v. Dunn, 86 U. S. 214; Chicago & Northwestern R. Co. v. McKinley, 99 U. S. 147.

19 Osborn v. Osborn, 5 Fed. Rep. 389; Hall v. Ricketts, 9 Bush, 366; Burson v. National Park Bank of New York, 40 Ind. 173; Clark v. Delaware & H. Canal Co., 11 R. I. 36. Contra, Galpin v. Critchlow, 112 Mass. 339; Chandler v. Coe, 56 N. H. 184; Continental Ins. Co. v. Kasey, 27 Gratt. 216.

20 Chicago & Northwestern R. Co. v. McKinley, 99 U. S. 147.

21 Jifkins v. Sweetser, 102 U. S. 177.

22 Stevenson v. Williams, 86 U. S. 572; Vannevar v. Bryant, 88 U. S. 41; Waggener v. Cheek, 2 Dill. 560; Kellogg v. Hughes, 3 Dill. 357; and Dart v. McKinney, 9 Blatchf. 359; Brice v. Somers, 1 Flippen, 574.

23 Beery v. Irick, 22 Gratt. 487; Williams v. Williams, 24 La. An. 55; Stevenson v. Wilson and Waggener v. Cheek, supra; Miller v. Finn. Í Neb. 254; McKinley v. Chicago & N. W. R. Co., 44 Iowa, 314. But see Douglas v. Caldwell, 65 N.C. 248. Contra: Sneed v. Brownlow, 4 Cold. 253. 24 Jifkins v. Sweetzer, 103 U. S. 177. 25 Douglas v. Caldwell, 65 N. C. 248.

§ 98 f. Notice to be given of application.Where the petition is presented to the Federal court in the first instance, the opposite party should have reasonable notice and opportunity to contest the allegation of local prejudice, before an order of removal is made.1 Three days' notice is not a reasonable time to allow defendant an opportunity to contest the allegation of local prejudice before an order of removal is made by the Federal court. 2

1 Carson & R. Lumber Co. v. Holtzclaw, 39 Fed. Rep. 578. 2 Carson & R. Lumber Co. v. Holtzclaw, 39 Fed. Rep. 578.

§ 98 g. Issues on application, how raised.— The proper mode of controverting the application is by a dilatory plea in the nature of a plea to the jurisdiction, on which the question may be submitted to a jury for derermination.1 Under the Act of 1887, section 2, clause 4, a plea by plaintiffs simply denying defendant's belief in the existence of such prejudice or local influence is insufficient, and raises no issue on that question, as the plea should affirm that it does not exist. Under the Act of March 3, 1887, the question whether there is no prejudice, etc., is open to inquiry, and may be determined from the evidence produced by both parties on motion to remand. The act substitutes the judgment of the circuit court on such application for the judgment of the removing party, and makes the existence of such prejudice a traversable issue,

while before it was left wholly to the conscience of the affiant. 4 Its decision thereon may be reconsidered upon a motion to remand, and vacated, and the case remanded, if the court is satisfied that the removal has been improperly granted. The court must in some way find as a fact that prejudice or undue influence exists, to determine the right to a removal. 6

5

1 McDonald v. Salem Capital Flour Mills Co., 31 Fed. Rep. 578; Susquehanna & W. V. R. & Coal Co. v. Blatchford, 78 U. S. 177; Fisk v. Henarie, 32 Fed. Rep. 421.

2 County Court of Taylor County v. Baltimore & O. R. Co., 35 Fed. Rep. 161.

3 Dennison v. Brown, 38 Fed. Rep. 535.

4 Amy v. Manning, 38 Fed. Rep. 868.

5 Amy v. Manning, 33 Fed. Rep. 868.

6 Robison v. Hardy, 38 Fed, Rep. 49; Walker v. O'Neill, Id. 374; Stone V. South Carolina, 117 U. S. 430. See Burlington, C. R. & N. R. Co. v. Dunn, 122 U. S. 513; Carson v. Dunham, 121 U. S. 421. See, on this subject, generally, notes to Bierbower v. Miller (Neb.) 9 L. R. A. 228; Austin v. Gagan (Cal.) 39 Fed. Rep. 626.

§ 98 h. Issues must be tried in circuit court.—Issues of fact raised upon petitions for removal must be tried in the circuit court.1 The existence of "local prejudice or influence" is not a jurisdictional fact, so as to entitle the adverse party to put it in issue for formal trial, and it is sufficient if it is made to appear to the Federal court by petition and affidavit.2 The circuit court will not inquire into the truth of the affidavit and ground for removal where a foreign corporation, defendant, files a petition accompanied by an affidavit stating that, of affiant's own knowledge, the petitioner will not be able to obtain justice in the State courts.3

1 Crehore v. Ohio & M. R. Co., 131 U. S. 240; Burlington etc. R. Co. v. Dunn, 122 U. S. 513; Carson v. Hyatt, 118 U. S. 279; Kansas City etc. R. Co. v. Daughtry, 138 U. S. 238; Craven v. Turner (Me.), 82 Me. 383, (contrary, new.)

2 Huskins v. Cincinnati etc. R. Co., 37 Fed. Rep. 504; Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849.

3 Cooper v. Richmond & D. R. Co. (Ga.). 8 L. R. A. 366.

§ 98 i. The fact must be made to appear to the satisfaction of the court.-On motion to remand the affidavit was insufficient, the inability to obtain justice in the State tribunal for the reason set out not being "made to appear in the circuit court" as required by the Act of Congress of March 3,

1887. It is not sufficient that defendant swears positively that such prejudice, etc., exists so far as to render a fair trial in any State court impossible, without showing the acts on which the averment is based, as the act mentioned is a substitute for the Act of 1867, which only required the belief of the applicant in such prejudice to be shown. Under the Act of Congress of March 3, 1887, it is for the circuit court to determine whether or not the prejudice or local influence, for which a removal is sought, actually exists, and until that fact is made to appear no removal can be ordered. It must be made to appear to the Federal court by proof, by affidavit or otherwise, of facts showing such local prejudice. The existence of prejudice is not sufficiently shown to justify removal to the Federal court where the affidavit shows that the prejudice is confined mainly, if not entirely, to Cook county.5 Subdivision 3 of the Rev. Stats. sec. 639, wherein it provides for a removal by defendant "when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in the State court," is not repealed by the act of 1887. The existence of prejudice or local influence must be shown to the circuit court of the United States to the legal satisfaction of the court, the amount and manner of proof required being left to the discretion of the court itself, which may or may not require other proof in addition to a verified petition."

Conflicting views.-The cases are not harmonious upon the question of sufficiency of petition and its accompanying affidavit to secure the removal of a cause. By one class of decisions it is held that a petition and affidavit in its support entitle a party to a removal without further proof. The prejudice or local influence clause, subsection 3 of the Act of 1867, required the party seeking a removal to make an affidavit to the effect that he believes he cannot obtain justice in the state court on account of prejudice or local influence; while the Act of 1887, re-enacted in 1888, provides only that such fact "shall be made to appear" to the circuit judge. Since the Act of 1887 does not prescribe any mode of procedure, where an affidavit is made by a party authorized to do so, stating the fact, of his own knowledge, the court will not permit the adverse

party to traverse it. 10 On the contrary, it has been held that the circuit court should not take cognizance of a case pending in a State court upon the ground of prejudice or local influence against defendant, unless in some proper way it finds as a fact that such prejudice or local influence exists; and that the single affidavit of an officer of defendant, stating this fact in general terms, should not be accepted as sufficient evidence of that fact. 11 It is the duty of the Federal court to whom the application for removal should be addressed in the first instance to hear evidence pro and con, before entertaining jurisdiction on the merits. 12 A formal affidavit of mere belief is not sufficient. The petition for removal should state facts and be verified, and the court may require further proof.13 Where it alleges, "I have reason to believe,' " but does not cause it "to be made to appear to the court," though sufficient under the Act of 1867, it is insufficient under the Act of 1887.14

1 Short v. Chicago M. & St. P. R. Co., 34 Fed. Rep. 225.

2 Amy v. Manning, 38 Fed. Rep. 536.

3 Overruling Fisk v. Henarie, 32 Fed. Rep. 417; Short v. Chicago M. & St. P. R. Co., 34 Fed. Rep. 225.

4 Southworth v. Reid, 36 Fed. Rep. 451; Re Penn Co., 137 U. S. 451; overruling in effect Fisk v. Henarie, 13 Sawyer, 38; Hills v. Richinond etc. Co., 85 Fed. Rep. 81; Whelan v. New York etc. R. Co., 35 Fed. Rep. 849.

5 Robison v. Hardy, 38 Fed. Rep. 43.

6 Minnick v. Union Ins, Co., 40 Fed. Rep. 369; Tayler Co. v. Baltimore & O. R. Co., 33 Fed. Rep. 161; F.sk v. Henarie, 35 Fed. Rep. 230. 7 Walcott v. Watson, 46 Fed. Rep. 529.

8 See Huskins v. Cincinnati, N. O. & T. P. R. Co. (Tenn.), 37 Fed. Rep. 504.

9 Fisk v. Henarie, 32 Fed. Rep. 417.

10 Whelan v. New York, L. E. & W. R. Co. (Ohio) 35 Fed. Rep. 849; Cooper v. Richmond & D. R. Co. (Ga.). 42 Fed. Rep. 607; Fisk v. Henarie, 32 Fed. Rep. 417, 35 Fed. Rep. 230; Huskins v. Cincinnati, N. O. & T. P. R. Co. (Tenn.), 37Fed. Rep. 504; Dennison v. Brown, 38 Fed. Rep. 535.

11 Hills v. Richmond & D. R. Co., 33 Fed. Rep. 81; Short v. Chicago, M. & St. P. R. Co., 34 Fed. Rep. 225; Malone v. Richmond & D. R. Co., 35 Fed. Rep. €25; Niblock v. Alexander, 44 Fed. Rep. 306; State v. Chapman (S. Dakota), 10 L. R. A. 434.

12 Carson & R. Lumber Co. v. Holtzclaw, 39 Fed. Rep. 885; Amy v. Manning, 38 Fed. Rep. 536, 868; Southworth v. Reid, 36 Fed. Rep. 451. 13 Ex parte Pennsylvania Co., 137 U. S. 451.

14 Hakes v. Burns, 4) Fed. Rep. 34; Minuick v. Union Ins. Co., 40 Fed. Rep. 369.

§ 98 j. Insufficient showing by affidavit.-An affidavit made on belief alone is insufficient. An affidavit

made by an agent for removal on account of prejudice, under the Act of 1887, is insufficient which alleges that "I have reason to believe" in the existence of prejudice, and does not cause the prejudice to be made to appear to the court. 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.3 The omission of the words "and does believe" is fatal. But an affidavit "to the best of his knowledge and belief" is sufficient." An affidavit asserting in general terms the existence of local prejudice does not authorize the removal of a chancery cause to be tried by the court, and which could be removed to any of seven adjoining counties. Where it states simply that he will not be able to obtain justice, "from prejudice and local influence," without directly averring the existence of prejudice or stating facts to support the averments of the petition, it is insufficient to warrant removal. The affidavit for removal must set forth facts and circumstances sufficient to satisfy the court of the existence of the prejudice and local influence, and an affidavit stating merely affiant's belief or opinion that prejudice or local influence exists is not sufficient. affidavit must state facts sufficient to show that prejudice exists in the adjacent counties to which the court might send the cause for trial to such an extent as to authorize removal into a Federal court.9 Under this act, an affidavit alleging that the affiant has good reason to beflieve and does believe, that, from prejudice and local influence, he will not be able to obtain justice in the State courts, is insufficient to obtain a removal, 10 An affidavit that defendant has no acquaintance in the county in which the trial in the State court will be had; that plaintiff is well known there as a lawyer and politician, having lived and practiced law at the county seat many years, and having been a candidate for the office of attorney-general of the State, does not make a case for removal. In an action by a foreign corporation for the price of lumber sold, defendant counter-claimed for services rendered, and for damages for breach of contract, on an affidavit stating that defendant had a large and influential business connection in the county and district, and that the counties had

The