134); and if plaintiff is an alien, defendant cannot remove (Knickerbocker L. Ins. Co. v. Gerbach, 70 Pa. St. 150); or if both parties are citizens of States other than where suit is brought. (Insurance Co. v. Francis, 11 Wall. 210; Hurst v. Railroad Co., 93 U. S. 71; Amer. Bible Soci. v. Grove, 101 U. S. 610.) So a citizen of the District of Columbia cannot remove a suit into the Federal court. (Cissel v. McDonald, 16 Blatchf. 150; Hepburn v. Ellzey, 2 Cranch. 445; Westcott v. Fairfield, Peters C. C. 45; New Orleans v. Winter, 1 Wheat. 91; Vape v. Miffin, 4 Wash. C. C. 519; Picquet v. Swan, 5 Mason, 35; Barney v. Baltimore, 6 Dill. 280.) Under the Judiciary Act, section twelve, to authorize a removal, the citizenship of each of the defendants must be such as to make his suit removable. (Shelby v. Hoffman, 7 Ohio St. 453; citing, Hubbard v. Northern R. Co., 25 Vt. 715; Board of Foreign Missions v. McMaster, 4 Am. Law Reg. 529; Welch v. Tennent, 4 Cal. 203.) Under the Acts of 1866, 1867, it is sufficient that the defendant applying for is at the time of filing his petition a citizen of another State, and the plaintiff a citizen of the State where suit is brought. (McGinnity v. White, 3 Dill. 350.) But if defendant had been a resident of the state at the time of the passage of those acts, the case is different. (Dark v. Walter, 4 Daly, 188.) In an action ex contractu, where there were three defendants, two non-residents and the third a citizen of the State where suit was brought, it could not be removed by the two non-residents. (Sew. Mach. Cos.' Cas., 18 Wall. 553; S. C. 110 Mass. 70.) Each defendant must be a resident of a different State from the plaintiff's State (Fairchild v. Durand, 8 Abb. Pr. 305; see Bixby v. Couse, 8 Blatchf. 73); so where the removal of the whole suit was sought, and not the suit as to the non-residents under the Act of 1866. (Vannevar v. Bryant, 21 Wall. 41.) So the grantor of a deed cannot under the act of 1866, remove a suit to foreclose a deed, leaving his trustee, his co-defendant, in the State court (Gardner v. Brown, 21 Wall. 36; Coal Co. v. Biatchford, 11 Wall. 172); and so of a garnishee or trustee joined as defendant. (Weeks v. Billings, 55 N. H. 371.) Under the Act of 1867 one of the several defendants, a non-resi dent, cannot remove unless the others are improper, formal or unnecessary parties. (Cook v. State Nat. Bk., 52 N. Y.

96.) A mere voluntary intervenor cannot remove the cause (Williams v. Williams, 24 La. An. 55); and so of stockholders of a corporation (W. A. & G. R. Co. v. A. & W. R. Co., 19 Gratt. 592); but one not sued but brought into the suit as warrantors, on motion of the defendant, has the right to remove, as in the case of a landlord, where the tenant is defendant. (Green v. Klinger, 10 Fed. Rep. 689; and see In re Iowa & M. Const. Co. 10 Fed. Rep. 401; 3 McCrary, 310; Healy v. Prevost, 6 Week. No. Cas. 579.)

Appearance. The petition must be filed at the time of entering an appearance (Yulee v. Vose, 94 U. S. 439; Kingsbury v. Kingsbury, 3 Biss. 60; Redmond v. Russell, 12 Johns. 153; Crane v. Reeder, 28 Mich. 527; Webre v. Duroc, 15 La. An. 65; Gibson v. Johnson, Peters C. C. 44; Davis v. Cook, 9 Nev. 134; but see Gelston v. Johnson, 3 N. J. L. 925); and the appearance must first be entered in the State court. (Ward v. Arredondo, 1 Paine, 410; Field v. Lonsdale, Deady, 288.) This requirement was intended not only to put the defendant to an election of his tribunal, but to give the opposite party early notice of his intention. (Redmond v. Russell, 12 Johns. 153.) To entitle a defendant to a removal from the supreme court, the applicant must file his petition in the supreme court at the time of putting on special bail; giving notice of the petition at the next term, and then filing it, is not sufficient. (Redmond v. Russell, 12 Johns. 153.) If a suit is against a citizen of another State, the party must file his petition at the time he enters his appearance. (Sav. Bank of Cincinnati v. Benton, 2 Met. [Ky.] 240.)` Defendants may apply at different times when their appearances are entered at different times. (Ward v. Arredondo, 1 Paine, 410.) The application must be at the time of entering the appearance in the State court, and the right is waived if defendant demurs, pleads, or answers, cr otherwise submits to the jurisdiction. (West v. Aurora, 6 Wall. 139; Sweeney v. Coffin, 1 Dill. 73.) The filing of a pleading or agreement by defendant, duly signed by his solicitor, and making an application thereon, is entering an appearance. (Pugsley v. Freedman's S. & T. Co., 2 Tenn. Ch. 130.) If petitioner enters into an agreement

that the case shall remain on the docket, and thereby obtains a continuance, it shall be deemed an appearance. (Robinson v. Potter, 43 N. H. 188.) A landlord appears when he is admitted as a defendant. (Jackson v. Stiles, 4 Johns. 493.) If a plaintiff has taken no step to obtain a judgment by default, defendant may appear and file his petition for removal. (Carpenterv. N. Y. & N.H. R. Co., 11 How. Pr. 481.) Where the State law does not require a formal appearance, filing a petition for removal is a sufficient appearance. (Sweeney v. Coffin, 1 Dill. 73; Stoker v. Leavenworth, 4 Martin N. S. 676.) Appearance and entering bail are separate acts. (Suydam v. Smith, 1 Denio, 263; Redmond v. Russell, 12 Johns. 153.) So giving an undertaking with sureties on an arrest is not an appearance. (Durand v. Hollins, 3 Duer, 686; Arjo v. Monteiro, 1 Caines, 248; Bird v. Murray, Cole & C. Cas. 63; Dart v. Arms, 19 How. Pr. 429; Hazard v. Durant, 9 R. I. 602.) If defendant opposes a motion for an injunction, and files an answer which is read at the hearing, he cannot remove the suit. (Livingston v. Gibbons, 4 Johns. Ch. 94; see Cooley v. Lawrence, 12 How. Pr. 176; Pugsley v. Freedman's S. & T. Co., 2 Tenn. Ch. 130.) Or where he legally and properly assents to the jurisdiction. (Robinson v. Potter, 43 N. H. 188.) As where he appears and answers the original bill. (Richardson v. Packwood, 1 Martin N. S. 290.) A service of notice of appearance is not an appearance. (Chatham Nat. Bk. v. Merchant's Nat. Bk., 1 Hun, 702.) Nor is the giving of formal notice of retainer (Disbrow v. Driggs, 8 Abb. Pr. 305, note; Norton v. Hayes, 4 Denio, 245; Field v. Baker, 1 Code Rep. (N. S.) 292; nor a mere agreement between the parties that defendant shall have further time to answer. (Disbrow v. Driggs, 8 Abb. Pr. 305, note.) If defendant obtains au order extending the time to answer, it is equivalent to an appearance. (Ayres v. Western R. Corp. 32 How. Pr. 351; S. C. 48 Barb. 132.) If the court appoints an attorney to represent an absent defendant, his appearance is not appearance by defendant. (Fisk v. Fisk, 4 Martin N. S. 676.) An appearance in open court, at a special term held out of the district, is not an appearance entitling to a removal. (Bristol v. Chapman, 34 How. Pr. 140.) Where the defendants are served at different times, or at

different times enter their appearance, they may each at such different times make application. (Shelby v. Hoffman, 7 Ohio St. 453; citing Ward v. Arredondo, 1 Paine, 370.) Where some of the defendants removed a cause regularly, others cannot enter an original appearance in such court. (Ward v. Arredondo, 1 Paine, 410.) Notice of appearance filed with the clerk at the time of application to remove is entering an appearance, but mere notice served on the plaintiff is not. (Field v. Blair, 1 Code Rep. (N. S.) 361.) The State court cannot cause an appearance to be entered nunc pro tunc, so as to entertain a motion for a new trial. (Ward v. Arredondo, 1 Paine, 410; see Gibson v. Johnson, Peters C. C. 44.)

$109. Bond and security.-And shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suits, if special bail was originally requisite therein. (25 U. S. Stats. 433.)

See Desty's REMOVAL, Sec. 103.

See Greer v. Gregg, 4 McLean, 202; McLeod v. Duncan, 5 McLean, 342; Screw Co. v. Bliven, 3 Blatchf. 242; Barney v. Globe Bank, 5 Blatchf. 107.

Bond and security.-Under the Judiciary Act the defendant must give several or joint and several bonds, and not joint bonds (Roberts v. Carrington, 2 Hall, 649; Hazard v. Durant, 9 R. I. 602); but under the Act of 1875 "good and sufficient surety" is all that is required. (Removal Cases, 100 U. S. 457; Mix v. Andes Insurance Co., 74 N. Y. 53. The Act of 1867 only requires the offer of 'good and sufficient surety," the surety to bind himself in writing. The form is immaterial. (Tunstall v. Madison, 30 La. An. 471; Mix v. Andes Ins. Co.. 74 N. Y. 53.) DESTY REMOVALS. -33.

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So a stipulation in the nature of a recognizance is sufficient. (Brown v. Crippen, 4 Hen. & M. 173.) The penalty must be sufficient to indemnify for delay or failure to comply with its terms (Miller v. Finn, 1 Neb. 154); and a penalty of one thousand dollars will be deemed sufficient, if defendant has not been held to bail. (Blanchard v. Dwight, 12 Wend. 192. Where the bond did not contain the conditions required by the Act of 1875, and the penal sum was left blank in non-compliance with the act of 1867, the case was remanded. (Brydeck v. Hale, 7 Biss. 96; 8 Chic. L. N. 192; see Torrey v. Grant Works, 14 Blatchf. 269.) The security must be offered at the time of filing the petition. (Kirkpatrick v. Hopkins, 2 Miles, 277; Best v. N. Y. L. Ins. Co., 2 Cin. Rep. 329; Robinson v. Potter, 43 N. H. 188; Hazard v. Durant, 9 R. I. 602; Weed Sew. Mach. Co. v. Smith, 71 Ill. 294; contra, Campbell v. Wallen, 1 Mart. & Y. 266.) Under the Judiciary Act the securities must be offered at the time of the party's appearance. (Kirkpatrick v. Hopkins, 2 Miles, 277.) The jurisdiction of the Federal court does not depend on the form or substance of the bond, if the statute in the other respects has been complied with (Beebee v. Cheeney, 11 The Reporter, 360), and the petition need not contain an offer to give the security. (Campbell v. Wallen, 1 Mart. & Y. 166.) If the petitioner fails to file his bond, the case remains in the State court (Hill v. Henderson, 21 Miss. 688), and the bond need not be filed till the security is accepted. (Tunstall v. Madison, 30 La. An. 471.) The petitioner need not execute the bond (Brown v. Crippen, 4 Hen. & M. 173; Stevens v. Richardson, 13 The Reporter, 678; S. C., 9 Fed. Rep. 191, 20 Blatch. 53); but the attorney of the petitioner may sign for him. (Dennis v. Alachua, 3 Woods, 683.) If, however, he does not sign, he must explain his reasons for not doing so. (Weed Sew. Mach. Co. v. Smith, 71 Ill. 204.) If the bond be signed by strangers only, and there is no proof of their solvency, there will no error in refusing to transfer the cause. (Weed Sew. Mach. Co. v. Smith, 71 Ill. 204.) The State court may investigate the value of the sureties (Orosco v. Gagliardo, 22 Cal. 83; Suydam v. Smith, 1 Denio, 263), and judge of their sufficiency. (Fitz v. Hayden, 4 Martin