originally brought in another district. He must file there with a bond, with a good and sufficient surety, for his entering in the Circuit Court, at the first day of its next session, a copy of the record in the suit, and for paying all costs that may be awarded in the Circuit Court, if that court shall hold that the suit was improperly removed; and also for appearing and entering special bail in the suit, if special bail was originally requisite therein. It is then the duty of the State court to accept the petition and bond, if correct in form, and to proceed no further in the suit. When the copy of the record is subsequently filed in time, the cause proceeds in the Circuit Court in the same manner as if originally commenced there.2 § 385a. Petition for removal.- The petition must state the facts which warrant the removal and give the Circuit Court jurisdiction; namely, in ordinary cases, that the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000; that the matter in dispute arises under the Constitution and laws of the United States, or that there is a controversy between citizens of different States, or a controversy between citizens of a State and foreign States, citizens or subjects. These facts should be stated positively, not on information and belief, and specifically. A general allegation in the language of the statute is insufficient. When the right to remove rests upon a difference in citizenship, the citizenship and residence of each of the parties should be alleged. It is in § 385. 1 Hess v. Reynolds, 113 U. S. said plaintiffs as such executors are 73, 81. citizens of the State of New York." 218 St. at L. 470, as amended, 24 Amory v. Amory, 95 U. S. 186. But St. at L. 552. § 385a. 1 Railway Co. v. Ramsey, 22 Wall 322, 328; Grace v. Am. C. Ins. Co., 109 U. S. 278. 2 Wolff v. Archibald, 14 Fed. R. 369. 3 Gold W. & W. Co. v. Keyes, 96 U. S. 199; Grace v. Am. C. Ins. Co., 109 U. S. 278. But see Hoge v. Canton Ins. Office, 103 Fed. R. 513. 4 Gold W. & W. Co. v. Keyes, 96 U. S. 199; Grace v. Am. C. Ins. Co., 109 U. S. 278; Carson v. Dunham, 121 U. S. 421. 5 Grace v. Am. C. Ins. Co., 109 U. S. 278. See supra, §§ 19, 66. It was held to be insufficient to allege "that see Cooke v. Seligman, 7 Fed. R. 263. And in a petition in the name of a firm, that the members of the firm, without naming them individually, are citizens of a certain State. Adams v. May, 27 Fed. R. 907. It has been held that a suit against a copartnership sued in its firm name cannot be removed on the ground of diverse citizenship. Ralya Market Co. v. Armour & Co., 102 Fed. R. 530. Cf. supra, S$ 18, 19. The allegation that a defendant is "a company duly chartered and incorporated under the laws of Great Britain" is a sufficient statement of the citizenship of such sufficient to state their residence alone. The non-residence of the defendant should be stated when he removes on the ground of a difference of citizenship. The petition should show that the difference in citizenship and the non-residence of the defendant existed both at the time of the commencement of the suit and at the time of the application for removal. If, however, either or both of those facts are alleged with sufficient precision in the pleadings, served or filed previously or concurrently with the petition, they need not be restated in it. It is the safer practice to allege in the petition the residence of the defendant who seeks a removal on the ground of a difference of citizenship, even when such defendant is a foreign corporation. A conditional application for a removal, for example, an application for a removal in case a pending mo corporation for the purposes of removal to a Federal court. Robertson v. Scottish U. & Nat. Ins. Co., 68 Fed. R. 173; Shattuck v. No. Br. & Mer. Ins. Co., 58 Fed. R. 609; Continental W. P. Co. v. Lewis Voight & Sons, 106 Fed. R. 550. Where a party is a corporation, the petition should not allege merely that it is, and at the time of the commencement of the suit was, a citizen of a specified State, but also that it is, and at the time of the commencement of the action was, a corporation created by or under the laws of that State. Lonergan v. Illinois Cent. R. Co., 55 Fed. R. 550; Frisbie v. Chesapeake & O. Ry. Co., 57 Fed. R. 1; De Loy v. Trav elers' Ins. Co., 59 Fed. R. 319. 6 Grace v. Am. C. Ins. Co., 109 U. S. 278; Grand Trunk Ry. Co. v. Twitchell (C. C. A.), 59 Fed. R. 727. But see Chambers v. McDougal, 42 Fed. R. 694. 7 Freeman v. Butler, 39 Fed. R. 1; Camprelle v. Balbach, 46 Fed. R. 81; Fife v. Whittell, 102 Fed. R. 537. 8 Gibson v. Bruce, 108 U. S. 561; H. & T. R. Co. v. Shirley, 111 U. S. 358; Akers v. Akers, 117 U. S. 197; Stevens v. Nichols, 130 U. S. 230; Jackson v. Allen, 132 U. S. 27; Camprelle v. Balbach, 46 Fed. R. 81; Laskey v. Newtown Min. Co., 56 Fed. R. 628; Foster v. Paragould S. E. R. Co., 74 9 Bondurant v. Watson, 103 U. S. 281, 285; Steamship Co. v. Tugman, 106 U. S. 118. Where the complaint stated that, at certain dates therein mentioned, which were before the commencement of the action, the diversity of citizenship existed, and the petition for the removal stated that the diversity then existed, it was held that the case must be remanded since it did not sufficiently appear that the diversity existed at the time of the commencement of the action. Craswell v. Belanger, 56 Fed. R. 529. Where the petition alleged that the defendant was a foreign corporation, it was held to be unnecessary to allege that it was such when the suit was commenced. Roberts v. Pac. & A. Ry. & Nav. Co., 104 Fed. R. 577, 579. Defects in a petition may be supplied by subsequent allegations in the record or proof in the evidence. Grand Trunk Ry. Co. v. Twitchell, 59 Fed. R. 727. 10 Hirschl v. J. I. Case T. Mach. Co., 42 Fed. R. 803, per Miller, J. But see Myers v. Murray, Nelson & Co., 43 Fed. R. 695; Howard v. Gold Reefs of Ga., 102 Fed. R. 657; Shattuck v. Nor. Br. & Merc. Ins. Co., tion should not be allowed, or in case a plea in abatement is not sustained, is ineffectual." Where a removal is claimed upon the ground that the suit arises under the Constitution and laws of the United States, the petition must state the facts showing that such is the case, unless those facts appear in pleadings previously filed or served, when such allegations may be incorporated into the petition by reference. If from the questions involved in the case it appears "that some title, right, privilege, or immunity on which the recovery depends, will be defeated by one construction of the Constitution or laws of the United States, or sustained by an opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term;" otherwise not. Where the plaintiff's pleading does not show that the case arises under the Constitution or laws of the United States, a defense resting upon that Constitution or those laws, set up in defendant's answer, does not give him the right of removal. His remedy in this respect is only by writ of error from the Supreme Court.15 But where the defendant is a corporation created by an act of Congress, the case may be removed, provided that the matter in dispute exceeds the jurisdictional amount; although the plaintiff's pleading does not show where the defendant's charter was obtained.16 The petition should also show that the matter in dispute is the jurisdictional amount, unless this already appears from the 58 Fed. R. 609; Roberts v. Pac. & A. M. & St. P. Ry. Co., 33 Fed. R. 391; Ry. & Nav. Co., 104 Fed. R. 577. 11 Manning v. Amy, 140 U. S. 137. 12 Gold W. & W. Co. v. Keyes, 96 U. S. 199, 204; Trafton v. Nougues, 4 Sawyer, 178; Carson v. Dunham, 121 U. S. 421; supra, § 17. "The right of removal does not depend upon the validity of the claim set up under the Constitution or laws. It is enough if the claim involves a real and substantial dispute or controversy in the suit." So. Pac. R. Co. v. California, 118 U. S. 109, 112, per Waite, C. J. But see Kentucky v. Louisville B. Co., 42 Fed. R. 241, 247; Starin v. New York, 115 U. S. 248; Iowa v. Chicago, Austin v. Gagan, 39 Fed. R. 626. As to suits against receivers, see Evans v. Dillingham, 43 Fed. R. 177; and supra, § 17. 13 Starin v. New York, 115 U S. 248, 257, per Waite, C. J.; So. Pac. R. Co. v. California, 118 U. S. 109, 112; supra, § 17. 14 Tennessee v. Union & Planters' Bank, 152 U. S. 454. Cf. Am. S. L. B. Co. v. Empire S. N. Co., 47 Fed. R. 741. pleadings. A naked allegation in the petition for the removal that the value of the matter in dispute exclusive of interest and costs exceeded two thousand dollars, was held sufficient in a case where the pleadings did not show the value of the matter in dispute, nor state any facts from which such value could be ascertained.18 In a case where the pleadings showed that no interest was demanded or could be recovered, it was held that a petition was not defective which stated, without reference to any interest, that the value of the matter in dispute exclusive of costs exceeded two thousand dollars.19 In a suit in equity to set aside several distinct judgments, the aggregate amount of the judgments constitutes the value of the matter in dispute.20 In determining the value of the matter in dispute on a removal, a counter-claim set up in the answer, or a cross-bill, if the matters pleaded in the counter-claim or crossbill are directly connected with the subject-matter of the decaration or original bill, may perhaps be considered. Where it is claimed that before the petition for a removal was presented to the State court, the declaration was amended so as to reduce the value of the matter in dispute below two thousand dollars, the question whether the amendment was prior 17 U. S. v. Pratt C. & C. Co., 18 Fed. R. 708; Chambers v. McDougal, 42 Fed. R. 694; Baltimore v. Postal Tel. Co., 62 Fed. R. 500; supra, § 16; Egan v. Chicago, M. & St. P. Ry. Co., 53 Fed. R. 675; Holt v. Bergwin, 60 Fed. R. 1; Tod v. Cleveland & M. V. Ry. Co. (C. C. A.), 65 Fed. R. 145; supra, SS 16, 293. It has been held that where the value of the matter in dispute is less than $2,000, a suit arising under the revenue laws cannot be removed, although the Federal court might have had original jurisdiction of the same irrespective of the amount involved. Johnson v. Wells, Fargo & Co., 91 Fed. R. 1. But see Crawford v. Hubbell, 89 Fed. R. 1. 18 Langdon v. Hillside C. & I. Co., 41 Fed. R. 609. See also Platt v. Phoenix Assur. Co. of London, 37 Fed. R. 730. But see Bowman v. 21 Bowman, 30 Fed. R. 849, which seems to hold that when the value of the subject-matter is uncertain no removal can be had; and which should be compared with Sharon v. Terry, 36 Fed. R. 337. As to estoppel, see La Page v. Day, 74 Fed. R. 977; Henderson v. Cabell, 43 Fed. R. 257; supra, § 16. 19 Weber v. Travelers' Ins. Co., 45 Fed. R. 657. 20 Marshall v. Holmes, 141 U. S. 589. 21 Dushane v. Benedict, 120 U. S. 630; Carson & R. L. Co. v. Holtzclaw, 30 Fed. R. 578; Block v. Darling, 140 U. S. 234. But see Bennett v. Devine, 45 Fed. R. 705; Burke v. Bunker Hill & S. Min. & C. Co., 46 Fed. R. 644; N. Y. L. & P. Co. v. Milburn G. & M. Co., 35 Fed. R. 225. 22 Lovell v. Cragin, 136 U. S. 130, 141; Wolcott v. Sprague, 55 Fed. R. 545. in time to the removal must be determined by the Federal court. The petition need not be verified,24 but it is the better practice to have it verified.25 It may be signed either by the petitioner or by his attorney in fact or at law.26 Where the petition is actually left in the clerk's office, an omission of the file-mark does not invalidate the removal.27 §385b. Bond on removal.- The bond should name a specific sum as the penalty, but the omission of any penalty was held not to be a ground for a remand.1 A penalty of $500 has been held sufficient when the defendant has not been held to bail. There seems to be no reason why a penalty of $100 should not be sufficient in such a case, since the costs in case of a remand rarely equal that amount. If the condition is simply that the petitioner will file "copies of all process," it is insufficient. The following condition was held to be sufficient: "If the said petitioners shall enter in the said Circuit Court of the United States, on the first day of its next session, a copy of the record in said suit, and shall well and truly pay all costs that may be awarded by said Circuit Court of the United States, if said court shall hold that said suit was wrongfully or improperly removed thereto, and do or cause to be done such other and appropriate acts as, by the acts of Congress approved March 3, 1875, and other acts of Congress, are required to be done upon the removal of a suit into the United States Circuit Court from a State court." When special bail was not originally required in the action, the bond need contain no condition for the entry of such bail in the Federal court. Nor need 5 23 Waite v. Phoenix Ins. Co., 62 Fed. R. 769. 24 Sweeney v. Coffin, 1 Dill. 73; Allen v. Ryerson, 2 Dill. 501; Houser v. Clayton, 3 Woods, 273; Howard v. Gold Reefs of Ga., 102 Fed. R. 657. See Removal Cases, 100 U. S. 457, 471. 25 Kansas City, F. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 303. 26 Dennis v. Alachua County, 8 Woods, 683; Wormser v. Dahlman, 16 Blatchf. 319. See also Removal Cases, 100 U. S. 457, where there is a dictum that objections as to the form of the signature are waived unless raised in the State court. 27 Waite v. Phoenix Ins. Co., 62 Fed. R. 769. § 3856. Johnson v. F. C. Austin Mfg. Co., 76 Fed. R. 616. Where the place for the amount of the penalty was left blank, the bond was held to be insufficient. Burdick v. Hale, 7 Biss. 96; Austin v. Gagan, 39 Fed. R. 626. 2 Kentucky v. Louisville B. Co., 42 Fed. R. 241. But see Blanchard v. Dwight, 12 Wend. (N. Y.) 192. 3 See Josslyn v. Phillips, 27 Fed. R. 481. 4 Burdick v. Hale, 7 Biss. 96. |