Opinion of the Court. right, which he claims, as against those who are holding him in custody, under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offence; but if he succeeds he must be discharged from custody. The porceeding is one instituted by himself for his liberty, not by the government to punish him for his crime. This petitioner claims that the Constitution and a treaty of the United States give him the right to his liberty, notwithstanding the charge that has been made against him, and he has obtained judicial process to enforce that right. Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution. It was said by Chief Justice Marshall, speaking for the court, as long ago as Ex parte Bollman & Swartwout, 4 Cranch, 75-101: "The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts." The questions that may be certified to us on a division of opinion before judgment are those which occur on the trial or hearing of a criminal proceeding before a circuit court. follows that we cannot take jurisdiction of the case in its present form, and it is consequently Remanded to the circuit court for further proceedings according to law. Arguments for Parties. GIBSON v. BRUCE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR Decided May 7th, 1883. Removal of Causes. A suit cannot be removed from a State court, under the act of 1875, unless the requisite citizenship of the parties exists both when the suit was begun and when the petition for removal was filed. Motion to dismiss or affirm. The only point at issue was whether the case was one which could be removed from the State court. When the suit was brought in the State court the appellant and the appellee were citizens of different States. The defendant at the term of the court at which the cause could be first tried, and before the trial thereof, moved for its removal to the federal court, and after hearing an order of removal was made in the State court. The plaintiff then in the federal court moved to remand it on the ground that at the time of the filing of the motion to remand, and at the time of the application for removal, the plaintiff and defendant were both citizens of the same State. The court below heard the parties on this motion, and granted it; from which order an appeal was taken. Mr. T. McDougall, Mr. G. Hoadly, Mr. E. M. Johnson, and Mr. E. Colston for appellant, cited Insurance Company v. Pechner, 95 U. S. 183; Mollan v. Torrance, 9 Wheaton, 537; Holden v. Putnam Fire Insurance Company, 46 N Y. 1; Burdick v. Peterson, 6 Fed. Rep. 840; Houser v. Clayton, 3 Woods C. Ct. 273; Tapley v. Martin, 116 Mass. 275; Kaeiser v. Illinois Central Railroad Company, 6 Fed. Rep. 1; Beede v. Cheeney, 5 Fed. Rep. 388; Rawle v. Phelps, 9 Central Law Journal, 46; Indianapolis, &c., Railway Company v. Risley, 50 Ind. 64; French v. Hay, 22 Wall. 231; Dillon on Removal of Causes, § 66. Mr. T. D. Lincoln for appellee, cited Murray v. Holden, 1 VOL. CVIII— -36 Opinion of the Court. McCrary's Reports, 341; Cramer v. Mack, 12 Fed. Rep. 803; Babbitt v. Clarke, 103 U. S. 606; Fulton v. Golden, 9 Cent. Law Journal, 286; Scott v. Clinton, &c., Railroad Company, 6 Biss. 529; Ames v. Colorado Central Railroad Company, 4 Dillon, 260; Kerting v. American Oleograph Company, 10 Fed. Rep. 17; Hebert v. Lefevre, 31 La. An. 363; The C. B. & Q. Railroad Company v. Welch, 44 Iowa, 665; Stough v. Hatch, 16 Blatchford, 233; Miller v. Kent, 60 Howard's Practice R. 451; Berrian v. Chetwood, 9 Fed. Rep. 678; Traders' Bank v. Tallmadge, 9 Fed. Rep. 363; Aldrich v. Crouch, 10 Fed. Rep. 305; New York Warehouse, &c., Company v. Loomis, 122 Mass. 431. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. In this case the court below decided that under the act of March 3d, 1875, c. 137, there could not be a removal to the Circuit Court of the United States of a suit in a State court between parties who were citizens of different States when the suit was begun, if when the petition for removal was filed the parties were all citizens of the same State. To reverse an order remanding a suit on that ground, this appeal was taken. Under the judiciary act of 1789 (sec. 12), it was held, in Insurance Company v. Pechner, 95 U. S. 183, that there could not be a removal unless the necessary citizenship existed when the suit was begun. That act provided only for a removal on the application of the defendant when the plaintiff was a citizen of the State in which the suit was brought, and the defendant was required to file his petition for removal at the time of entering his appearance in the State court. Under such circumstances changes of citizenship, after the suit was begun and before the time for applying for a removal, would not often occur. The act of 1875 is radically different from any which preceded it. Under that act either party may petition for removal, and neither party need be a citizen of the State in which the suit was brought. The material language is as follows: "That any suit of a civil nature at law or in equity, now pend Opinion of the Court. ing or hereafter brought in any State court, . in which there shall be a controversy between citizens of different States, either party may remove said suit into the circuit court of the United States for the proper district." In order to obtain the removal, a petition therefor must be filed in the State court at or before the term at which the cause could be first tried, and before the trial. In the present case the petition was not filed until nearly two years after the commencement of the suit. The construction of the act is by no means free from doubt, but on full consideration we are of opinion that the requirement of the old law, that the necessary citizenship should exist when the suit was brought, was not abolished. We cannot believe it was intended to allow a party to deprive a State court of the jurisdiction it has once rightfully acquired over him by changing his citizenship after a suit is begun, and that would be the effect of the law if the right of removal is made to depend only on the citizenship existing at the time a removal is applied for. But we are also of opinion that because of the extension of the time for applying for a removal, and because neither party need be a citizen of the State in which the suit is brought and either party may apply, it was the intention to provide that the controversy should be between citizens of different States at the time of the removal. In this way the jurisdiction of the Circuit Court of the United States will only attach when there shall be a controversy between citizens of different States at the time the suit is transferred, and the right to the transfer will depend on the citizenship when the suit was begun and when the petition for removal is filed. We, therefore, hold that a suit cannot be removed from a State court under the act of 1875, unless the requisite citizenship of the parties exists both when the suit was begun and when the petition for removal is filed. The order remanding the cause is affirmed. 108 564 L-ed 828 115 276 122 29 108 564 L-ed 828 145 131 Opinion of the Court. NEW JERSEY ZINC COMPANY v. TROTTER. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY. Decided May 7th, 1883. Jurisdiction-Pleading-Practice-Trespass. Where, in an action of trespass in which a count of trespass quare clausum, is joined to a count of trespass de bonis asportatis, the defendant sets up no plea of title, and it does not in any way appear by the record that title is involved, and the plaintiff recovers judgment for a sum less than $5,000, the defendant cannot bring the cause here on a writ of error, even though the judgment below may operate collaterally to estop the parties in another suit. Trespass quare clausum, to which was joined a count of trespass de bonis asportatis. General issue. Trial and judgment for the plaintiff for $4,072.25, damages, costs, and charges. Defendant brought the cause here on error. Defendant in error moved to dismiss the writ of error, and joined with it a motion to affirm, grounding the first motion on the insufficiency of the amount of the judgment. The defendant resisted the motion on the ground that the real issue tried between the parties in the court below was the title to real estate of much greater value than $5,000. Mr. John Linn, for plaintiff in error. Mr. Cortlandt Parker and Mr. Richard Wayne Parker, for defendant in error. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This was an action of trespass brought by Trotter to recover damages of the New Jersey Zinc Company for entering on his lands and digging up and carrying away a quantity of franklinite ore. There were three counts in the declaration : two quare clausum fregit, and one de bonis asportatis. The plea was not guilty. No other issue was raised by the pleadings. Neither party set up title, so that the only matter in dispute was the liability of the zinc company to pay for the ore which |