others, he may remove, though he afterward becomes sole defendant. 23 If the defendants are entitled to sever, those only need unite in the petition who are entitled to remove, 29 and the cause will be removed only as to the defendant who petitions.30 On a joint application the removal may be granted to one and denied as to the other.31 The right, if claimed by the mode prescribed, depends on the case disclosed by the pleadings;32 and equitable defenses will not prevent a removal. 33 The right of removal of a suit from a State court is statutory. A party must show upon the record that his case comes within the statute.34 The validity of this legislation, is not open to serious question, and the provisions adopted have been recognized and followed with scarcely an exception, by the Federal and State courts since the establishment of the government. 35

1 Fisk v. U. P. R. R. Co., 6 Blatchf. 362.

2 Clippinger v. Mo. Val. L. Ins. Co., 22 Int. Rev. Rec. 47; Hatch v Chicago, R. I. & P. R. R. Co., 6 Blatchf. 105,

Kanouse v. Martin, 15 How. 198; S. C. 1 Blatchf. 149; Akerly v. Vi. las, 1 Abb. U. S. 284; S. C. 2 Biss. 110; Hatch v. Chicago, R. I. & P. R. RCo., 6 Blatchf. 105; Fisk v. U. P. R. R. Co., 6 Blatchf. 362; S. C. 8 Blatchf. 243; Muns v. Dupont, 2 Wash. C. C. 463; Ladd v. Tudor, 3 Wood. &. M. 325.

4 Gordon v. Longest, 16 Peters, 97; Roberts v. Nelson, 8 Bla hf. 74. 5 Stanley v. Chicago, R. I. & P. R. R. Co., 3 Cent. L. J. 430; Matthews Lyall, 6 McLean, 13; Wright v. Wells, Peters, C. C. 220.

6 Stevens v. Richardson, 9 Fed. Rep. 131.

7 Stevens v. Richardson, 9 Fed. Rep. 191.

8 Healey v. Prevost, 25 Int. R. R. 240; Postmaster-General v. Cross, 4 Wash. C. C. 326; Martin v. Taylor, 1 Wash. C. C. 1.

9 Fisk v. Fisk, 4 Martin, N. S. 676.

10 New Orleans etc. R. R. Co. v. Mississippi, 102 U. S. 135; The Remo val Cases, 100 U. S. 457; Insurance Co. v. Dunn, 19 Wall. 214; Ayers v. Chicago, 101 U. S. 184; Railroad Co. v. Ketchum, 101 U. S. 289; Amer. Bible Soc. v. Grove, 101 U. S. 610; Burke v. Flood, 1 Fed. Rep. 541.

11 Insurance Co. v. Dunn, 19 Wall. 214; Gordon v. Longest, 16 Peters, 98: Kenouse v. Martin, 18 How. 198; Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Hadley v. Dunlop, 10 Ohio St. 1; Stanley v. Chicago, R. I. & P. R. R. Co., 3 Cent. L. J. 430.

12 Home Insurance Co. v. Curtis, 32 Mich. 402. 13 Hanover Nat. B'k v. Smith, 13 Blatchf. 224. 14 Hanover Nat. B'k v. Smith, 13 Blatchf. 224. 15 Hanover Nat. B'k v. Smith, 13 Blatchf. 224. 16 Johnson v. Monell, 1 Woolw. 390. Under the Act of 1875, the affidavit of local predjudice is not necessary: Allen v. Ryerson, 2 Dill. 501. 17 Welch v. Tennent, 4 Cal. 203; Greely v. Townsend, 25 Cal. 604.

18 Robb v. Parker, 3 Rich. N. S. 69.

19 Fisk v. U. P. R. Co., 6 Blatchf. 331.

20 Amory v. Amory, 93 U. S. 185; Sands v. Smith, 1 Dill. 230; Fisk v Chicago, R. I. & P. R. Co., 53 Barb. 472.

21 Amory v. Amory, 95 1. S. 186; Sands v. Smith, 1 Dill. 290; Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Knickerbocker L. Las. Co. v. Gerbach, 70 Pa. St. 150.

22 Amory v. Amory, 95 U. S. 186.

23 Dirt v. Walker, 43 How. Pr. 23. But see McGinnity v. White, 3 Dill. 350.

21 Davis v. Cook, 9 Nev. 134.

25 Sands v. Smith, 1 Dill. 290; but under the Act of 1875, either party may remove, all forming the party on one side being c tizens of different States from those on the other: Ruble v. Hyde, 3 Fed. Rep. 330.

26 Sew. Mach. Cos. Cas., 18 Wall. 553; S. C. 110 Mass. 70.

27 George v. Pilcher, 23 Gratt. 299; Davis v. Cook, 9 Nev. 134; Goodrich v. Hunton, 29 La. An. 372; Fairchild v. Durand, 8 Abb. Pr. 335. See Schwab v. Hudson, 11 Ch. L. N. 372; Cissel v. McDonald, 13 Blatchf. 150. 23 Yulee v. Vose, 99 U. S. 530; S. C. 61 N. Y. 449.

29 Lewis v. White, 7 Ch. L. N. 116.

30 Wormser v. Dahlman, 16 Blatchf. 319; S. C. 57 How. Pr. 286.

31 Dart v Walker, 4 Daly, 183.

32 Barney v. Latham, 107 U. S. 205.

33 Tarvin v. Ficklin, 60 Ga. 373.

34 Phoenix Ins. Co. v. Pechner, 95 U. S. 183; Amory v. Amory, Id. 186; Little York Gold Watch & W. Co. v. Keyes, 96 U. S. 199.

35 Gaines v. Fuentes, 92 U. S. 10; Tennessee v. Davis, 100 U. S. 257.

§ 93 b. Not a vested right.-The right of removal is not a vested right of property, and the rule of statutory construction does not apply.1 A defendant may waive his right to remove a cause, and may withdraw his petition and bond, upon due notice where the record has not been sent to the Federal court. 2

1 Manley v. Olney, 32 Fed. Rep. 703.

2 Wadleigh v. Standard L. & Acc. Ins. Co., 45 N. W. Rep. 103.

§ 93 c. Its exercise cannot be prevented by State legislation.-The right to the removal of a cause cannot be prevented by State legislation. A statute which enacts that a foreign corporation shall not transact business within its limits, unless it agrees in advance that it will not remove into the Federal courts any suit that may be commenced against it by a citizen of Wisconsin, is repugnant to the Constitution of the United States, and void. Such an agreement is within the statute, and is void. 3 Yet a stipulation not to remove a specified suit has been

held valid. The State may, however, compel the foreign corporation to abstain from the Federal courts, or to cease to do business in the State, giving the corporation the option. It may exclude a foreign corporation, and the means of enforcing such exclusion or the motives of such action will not be inquired into.6

1 American F. Co. v Bostwick, 151 Mass. 19.

2 Home Ins. Co. v. Morse, 87 U. S. 445; Rece v. Newport News & M. V. Co., 32 W. Va. 164; Insurance Co. v. Dunn, 86 U. S 214; Kanouse v. Martin, 55 U. S. 23; 53 U. S. 198; Home Ins. Co. v. Davis, 29 Mich. 238; Stevens v. Phoenix Ins. Co., 41 N. Y. 149, Holden v. Putnam Ins Co., 46 N. Y. 1; Hadley v. Dunlap, 10 Ohio, 1.

3 Home Ins. Co. v. Morse, 20 Wall. 445; Barron v. Burnside, 121 U. S. 186.

4 Hanover v. National Bank, 13 Blatchf. 224.

5 Doyle v. Continental Ins. Co., C4 U. S. 535.

6 Doyle v. Continental Ins. Co., 94 U. S. 535; State v Doyle, 40 Wis. 220. But see Hartford Fire Ins. Co. v. Doyle, 6 Biss. 461.

§ 93 d. The right not waived by proceedings in State court. --A petitioner does not waive his right to removal by contesting his suit upon the merits in the State court, after his petition is there denied. He does not waive his right to a removal of the cause within that time by filing a general demurrer before the time allowed by law and the rules of court expires.2 Signing a stipulation for continuance in a State court does not waive the right to remove the cause. If a party fails in his efforts to obtain a removal, and is forced to trial, he loses none of his rights by defending against the action in the State courts." Parties litigant have a right to continue the case in the State courts irrespective of its Federal character, and as soon as any active steps have been taken or any acts performed that show presumptively that an election has been made to remain in the State court, the jurisdiction of the State court becomes complete, and no transfer will take place. But it cannot be held that, because the petition for removal was not filed until after motion to strike it from the files had been disposed of, the right of removal had been lost. The right to remove a cause is not absolutely lost by failure to file the record in the latter court on the first day of its next term, or at any time during that term.7 The right to remove the cause is barred by appeal to the State supreme court from an order allowing

5

a temporary injunction made upon the petition and the affidavit. The loss by one party of the right to remove a cause, by expiration of the time to answer, affects all other parties with whom he must be joined in an application for removal. Comity has no place in determining the question as to the removal of the cause, which is a matter of right. 10

1 L. R. M. R. & T. R. Co. v. Iredell, 50 Ark. 388; Stix v. Keith, 93 Ala. 121; Richards v. Rock Rapids, 31 Fed. Rep. 505.

2 Conner v. Skagit Cumberland Coal Co., 45 Fel. Rep. 802.

3 Strassburger v. Beecher, 41 Fed. Rep. 203.

4 Meyer v. Delaware R. N. Construction Co. ("Removal Cases") 100 U. S. 457; New O leans M. & T. R. R. Co. v. Mississippi, 102 U. S. 135; Kern v. Huidekoper, 103 U. S. 485; Chesapeake & O. R. Co. v. White, 111 U. S. 134; National Steamship Co. v. Tugman, 106 U. S. 118.

5 Wing v. Chicago & N. R. Co., 47 N. W. Rep. 530.

6 Richards v. Rock Rapids, 31 Fed. Rep. 503.

7 Rowell v. Hill, 24 Blatchf. 136.

8 Chicago, I. & N. P. R. Co. v. Minnesota & N. W. R. Co., 29 Fed. Rep. 337.

9 Rogers v. Van Nortwick, 45 Fed. Rep. 513.

10 Tillman v. Coosaw Min. Co., 45 Fed. Rep. 805.

§ 93 e. Restriction on exercise of right by Act of Congress of 1887-8.-The Act of Congress of March 3, 1887, does not enlarge the right of removal of causes, but restricts it as to the parties, the classes of actions, and the time of its exercise. The statute, therefore, must be strictly construed against those seeking to evade its requirements.2

1 Woolf v. Chisholm, 24 Blatchf. 405.

2 Dwyer v. Peshall, 32 Fed. Rep. 537.

§ 93 f. Suits removable.-Where the ground of removal is the subject-matter and not citizenship, the suit must arise, in part at least, out of a controversy in regard to some provision in the Constitution or laws of Congress;1 in such case it is removable, irrespective of citizenship. 2 It is not enough that a plea to the jurisdiction of the State court has been or may be interposed, involving constitutional questions;3 so merely claiming title under an act of Congress will not authorize a removal. A suit between a land-owner and an incorporated company seeking to appropriate the land under the law of eminent domain

may be removed;5 or a bill in equity to reform an insurance policy; or a special statutory proceeding to confirm a land title; or an action by an attorney to recover fees and have the amount declared a lien upon property sold;8 or suits by attachment;9 or a controversy as to the validity of an attachment; 10 or a proceeding by mandamus to compel a company to transfer certificates of stock-may be removed. 11 But a claim against an estate, pending an appeal from the decision of the commissioners appointed by the probate court, is not removable under the Act of 1867;12 and a contest in regard to the distribution of an estate must be removed before the original trial. 13 A bill to reform a contract may be removed. It A bill to compel a trustee to apply the income to pay the debts of the cestui que trust, where the latter is a non-resident, may be removed;15 or a bill to obtain an accounting from a mortgagor;16 or a proceeding in chancery by a purchaser at a sheriff's sale to have the sale confirmed;17 or a bill to compel the surrender of a note on the ground of collusion and fraud, though a former decree had been rendered in a State court requiring him to surrender the note, may be removed.13 If a proceeding to annul a judgment is equivalent to a b.ll in equity to set aside the judgment, the case is removable.1 A suit in a State court to restrain or stay execution of a judgment by seizure and sale of lands may be removed, 20 The right of removal of a railway foreclosure suit is not affected by the pendency of another suit in the State court by stockholders against the company. 21 An injunction suit is a sufficiently independent suit to author ze a removal.22 Section 720 of the Revised Statutes, forbidding Federal courts to enjoin proceedings in State courts, does not forbid the removal of injunction suits. 23 To be removable, the suit must be a suit within the meaning of the State law;24 and where there is no controversy, the suit cannot be removed;25 as where default has been made. 26 A suit against a foreign corporation, followed by an attachment, is a suit;27 but a motion under a State statute as to corporations, for execution against a stockholder, is not a suit at law or in equity. 23 A suit against an administrator to recover a claim which existed against the decedent in his lifetime may be removed where the parties are citizens of different States, although the statute of the State