in the same manner as now provided for the removal of an action brought in a State court by the provisions of the preceding section. (Rev. Stats. sec. 644.)

See Desty's REMOVAL, Sec. 104.

Enforcing removal.-Certiorari will lie to bring the record, and if the defendant is in custody, habeas corpus lies to bring the party. (State v. Hoskins, 77 N. C. 530; see Com. v. Casey, 94 Mass. 214; People v. Murray, 5 Parker Cr. C. 577.) They issue for these purposes only (Abranches v. Schell, 4 Blatchf. 256), and their issuance is only a mode of notification to the State court. (Fisk v. Union Pac. R. Co., 6 Blatchf. 362.) Service by leaving a duplicate with the clerk of the State court is sufficient (Abranches v. Snell, 4 Blatchf. 256); and if delivered to or left at the office of the clerk, the case is ipso facto removed (Fisk v. Union Pac. R. Co., 6 Blatchf. 362), and no return is necessary. (Fisk v. Union Pac. R. Co., 6 Blatchf. 362.) An application for a certiorari must state facts sufficient to show a cause within the provision of the statute; it is not sufficient to state facts generally, as that he intends to rely on the revenue laws of the State. (Salem & Lowell R. Co. v. Boston & L. R. Co., 11 The Reporter, 210.) A criminal case cannot be removed before indictment found. (Com. v. Artman, 3 Grant, 436.) The prosecution in cases of murder is not commenced be fore accused is called to answer for the offense. (Georgia v. O'Grady, 3 Woods, 496.) It extends to an action against a postmaster for the wrongful refusal to deliver a letter (Warner v. Fowler, 4 Blatchf. 311; Wilson v. Pearson, 13 Fed. Rep. 386; 21 Blatchf. 113); as post-office laws are revenue laws. (Warner v. Fowler, 4 Blatchf. 311.) Cases arising under a direct-tax law are movable. (Payton v. Bliss, 1 Woolw. 170.) The collector of customs, if served with a foreign attachment, may remove the cause. (Fischer v. Daudistal, 9 Fed. Rep. 145.) A suit against a collector for slander (Buttner v. Miller, 1 Woods, 620), or to recover back duties illegally exacted, may be removed. (Coggill v. Lawrence, 2 Blatchf. 304.) A collector who withholds from an informer proceeds of goods forfeited for violation of the revenue laws, may remove the suit. (Van Zandt v. Maxwell, 2 Blatchf. 421.)

§ 108. Proceedings for removal-Petition, when filed.—That whenever any party entitled to remove any suit mentioned in the next preceding section, except in such cases as are provided for in the last clause of said section, may desire to remove such suit from a State court to a circuit court of the United States, he may make and file a petition in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the circuit court, to be held in the district where such suit is pending. (25 U. S. Stats. 433.)

See Desty's REMOVAL, Sec. 105.

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 the State court. (Ames v. Colorado Cent. R. Co., 4 Dill. 251; S. C., 4 Cent. L. J. 199.) A cause may be removed from any State court, whether of limited or general jurisdiction, if citizenship and amount are within the statute provisions (Gaines v. Fuentes, 92 U. S. 10; S. C., 3 Cent. L. J. 371; 8 Chic. L. N. 225); but a justice's court is not deemed a State court. (Rathbone Oil Co. v. Rausch, 5 W. Va. 79.) An action brought by the District of Columbia against an alien cannot be removed. (Cessel v. McDonald, 57 How. Pr. 175; S. C., 16 Blatchf. 150.) A board of commissioners of a county is not a State court. (Fuller v. Co. of Colfax, 14 Fed. Rep. 177; 4 McCrary, 535.) The circuit court for the district within the territorial limits on which the suit is pending is in the "proper district.' (Knowlton v. Congress & Empire S. Co., 13 Blatchf. 170.)

Application.-A case cannot be removed on a mere stipulation. (Kingsbury v. Kingsbury, 3 Biss. 60.) Neither an infant nor his guardian can consent to a removal

(Kingsbury v. Kingsbury, 3 Biss. 60), as consent will not confer jurisdiction (Re Hopkins, 18 Bank. Reg. 339), nor can a removal be effected by filing the petition and bond, without any action of the court. (Scott v. Otis, 10 Chic. L. N. 41.) The application does not constitute a waiver of the use and service of proper papers. (Parrott v. Alabama Gold L. Ins. Co., 5 Fed. Rep. 391; 4 Woods, 353.) A party seeking a removal must do all that is necessary to secure it (Clippinger v. Mo. Val. L. Ins. Co., 1 Flippin, 456); and the discretion of the court in passing on the question as to the necessary steps being properly taken is a legal discretion. (Hatch v. Chicago, R. I. etc. R. Co., 6 Blatchf. 105.) The case is removable, though erroneously applied for under the provisions of section six hundred and thirtynine, Revised Statutes. (Norris v. Mineral Point Tunnel, 7 Fed. Rep. 272; 19 Blatchf. 201.) A notice of the application is not necessary. (McLean v. Chicago etc. R. Co., 16 Blatchf. 619; Stevens v. Richardson, 9 Fed. Rep. 191; 20 Blatchf. 53; contra, Bristol v. Chapman, 34 How. Pr. 140; Disbrow v. Driggs, 8 Abb. Pr. 305, note.) The State court cannot cause the application to be entered nunc pro tunc so as to entertain a motion for removal. (Ward v. Arredondo, 1 Paine, 410.) A party does not lose his right to insist on a removal, by a voluntary appearance (Stevens v. Richardson, 9 Fed. Rep. 191; 20 Blatchf. 53); but proceeding to trial without calling the attention of the court to the petition and bond for removal is deemed a waiver of the right. (Home Ins. Co. v. Curtis, 32 Mich. 402.) The filing of a petition for removal is a sufficient application. (La Mothe Manuf. Co. v. Nat. Tube Works, 15 Blatchf. 432.)

Petition. A petition is a request in writing in contradistinction to a motion which may be made viva voce. (Shaft v. Phoenix M. L. Ins. Co., 67 N. Y. 544.) The office of the petition is to set on foot proceedings to obtain a removal. It must contain such averments as entitle to relief (De Camp v. N. J. M. L. Ins. Co., 2 Sweeney, 481), and such as are positive and express the facts on which it depends, and not argumentative. (Brown v. Keene, S Peters, 112; citing Bingham v. Cabbot, 3 Dall. 19, 382; Abercrombie v. Dupins, 1 Cranch, 343; Wood v. Wagnan,

2 Cranch, 9; Capron v. Van Noorden, 2 Cranch, 126.) It should point out what the question is, and how and where it will arise (Trafton v. Nougues, 4 Sawy. 178), and state such facts as show to the court that the case falls within the category of removable causes. (In re Anderson, 3 Woods, 124; McMurdy v. Ins. Co., 4 Week. Ins. Cas. 18; Tunstall v. Madison Parish, 30 La. An. 471; Lalor v. Dunning, 56 How. Pr. 209.) The petition must set forth the jurisdictional facts. (Smith v. Horton, 7 Fed. Rep. 270.) The facts upon which the petitioner bases his right must be made to appear, but no particular mode is prescribed. It may be by admission of parties, by affidavit, or by the testimony of witnesses (People v. Superior Court, 34 Ill. 356); but where the petition fails to show that the case is removable, the court should deny the application. (Weed Sewing Machine Co. v. Smith, 71 Ill. 204; U. S. Sav. Inst. v. Brockschmidt, 72 Ill. 370; New Orleans etc. Co. v. Recorder etc., 27 La. An. 291; McWhinney v. Brooke, 64 Ind. 360; Liverpool Ins. Co. v. McGuire, 52 Miss. 227; Hartford F. Ins. Co. v. Green, 52 Miss. 332; Blair v. West Point etc. Co., 7 Neb. 146.) The right of removal is statutory, and the party applying must show upon the record that the case is one which comes within the provisions of the statute. (Amory v. Amory, 95 U. S. 186.) The petition when filed becomes a part of the record. It should state facts which, taken in connection with such as already appear, entitle him to a removal. (Amory v. Amory, 95 U. S. 186. See New Orleans etc. R. Co. v. Mississippi, 102 U. S. 135.) Where the fact of non-residence sufficiently appears on the record, it need not be shown by petition. (Boudurant v. Watson, 2 Morr. Trans. 479.) It is necessary to show as well that suit was commenced "by a citizen of a State in which the suit is brought," as that it was commenced against a citizen of another State (Holden v. Putnam F. Ins. Co., 46 N. Y. 1); so stating that plaintiff "is a citizen is sufficient (Holden v. Putnam F. Ins. Co., 46 N. Y. 1); so an averment that he is a resident of the State is not sufficient (Parker v. Overman, 18 How. 137; Darst v. Bates, 51 Ill. 439; Corp. v. Vermilye, 3 Johns. 145; Martin v. Coons, 24 La. An. 169; Beebe v. Armstrong, 11 Mart. 440.) That a corporation was

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formed under the laws of a State, and is a resident thereof, is sufficient. (Rathbone Oil Tract Co. v. Rauch, 5 W. Va. 79.) Where the petition states that the plaintiffs "" as executors are citizens of the State, it is insufficient as to personal citizenship. (Amory v. Amory, 95 U. S. 186.) That petitioner is not a resident of the State is not sufficient for the expression of non-resident (Easton v. Rucker, 1 Marsh J. J. 232), nor is a mere averment that petitioner is an alien or a citizen of another State (Welch v. Tennent, 4 Cal. 203; Savings Bank v. Benton, 2 Met. [Ky.] 240;) but an averment that the defendant is a citizen of the southern district of Alabama is a sufficient averment of citizenship of Alabama (Berlin v. Jones, 1 Woods, 638); but the allegation that the plaintiff is a citizen of a certain county is not sufficient allegation of citizenship. (Pechner v. Phoenix Ins. Co., 95 U. S. 183; Carsley v. Schley, 59 Ga. 17; but see Stoker v. Leavenworth, 7 La. 390.) The petition must state the citizenship of the parties, unless it sufficiently appears on the record. (Insurance Co. v. Francis, 11 Wall. 210; Welch Tennent, 4 Cal. 203; Harrison v. Shorter, 59 Ga. 112; Insurance Co. v. McGuire, 52 Miss. 227; Hartford F. Ins. Co. v. Green, 52 Miss. 332; Phoenix L. Ins. Co. v. Saettel. 33 Ohio St. 278; Savings Bank v. Benton, 2 Met. (Ky.) 240.) The averment that certain of the petitioners, they are the qualified executors," were and are citizens, is an averment of their personal citizenship. (Cooke v. Seligman, 7 Fed. Rep. 263; 17 Blatchf, 452.) But under the Act of 1875 the petitioner need not state that plaintiff was at the date of the commencement of the suit a citizen of a State other than that of which defendant is a citizen, if the requisites of citizenship exist at the time of filing the petition. (McLean v. St. Paul etc. R. Co., 16 Blatchf. 309; see also Jackson v. Mutual Ins. Co., 3 Woods, 413; S. C., 60 Ga. 423; Johnson v. Monell, Woolw. 390; McGinnity v. White, 3 Dill. 350.) It is otherwise under the Judiciary Act, where it must be affirmatively shown that the requisite citizenship existed at the commencement of the action. (Weed Sew. Mach. Co. v. Smith, 71 Ill. 204; Beebe v. Cheeney, 11 The Reporter, 360; Ins. Co. v. Pechner, 95 U. S. 183; S. C., 6 Lans. 411; Savings Bank v. Benton, 2 Met. [Ky.] 240; U. S. Sav.

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