ent States, the case is within this section, notwithstanding some of the adversary parties may be citizens of the same State with some of the defendants. (Girardey v. Moore, 3 Woods, 397; Nat. Union Bank_v. Dodge, 25 Int. Rev. Rec. 304; see Shepard v. K. N. L. Pack. Co., 12 Chic. L. N. 220.) Where the controversy is severable, a joint tortfeasor may remove (Lockhart v. Horn, 1 Woods, 634; and see Sheldon v. Keokuk N. L. P. Co., 1 Fed. Rep. 789; 9 Biss. 307; Taylor v. Rockefeller, 7 Cent. L. J. 349; Clark v. Chicago, M. & St. P. R. Co., 11 Fed. Rep. 355; 9 Biss. 307); and where plaintiff has united controversies which can be fully determined as between the parties, citizens of another State may remove the cause (Clark v. Chicago M. & S. P. R. Co., 11 Fed. Rep. 355; 3 McCrary, 591; Sweet v. Same, 11 Fed. Rep. 365); but if the cause of action is joint, it cannot be removed on the petition of one only (Stevens v. Richardson, 9 Fed. Rep. 191.) The right of removal in such cases is on the condition that the case can be wholly determined as to the parties (Nat. Union Bank v. Dodge, 25 Int. Rev. Rec. 304); so if three separate actions are brought, and the same defense is made in each, and a judgment in one will determine the whole controversy, they may be removed if the joint amount incontrovertibly exceeds five hundred dollars. (Carraher v. Brennan, 7 Biss. 497; Ellerman v. New Orleans, M. & T. R. Co., 2 Woods, 120; Smith v. St. Louis M. L. Ins. Co., 2 Tenn. Ch. 656; Smith v. McKay, 4 Fed. Rep. 353; Hervey v. Illinois M. R. Co., 7 Biss. 103; Chicago v. Gage, 6 Biss. 467; Osgood v. Chicago, D. & V. R. Co., 6 Biss. 330; Board v. Kansas Pac. R. Co., 4 Dill. 277; Burnham v. D. & M. R. Co., 4 Dill. 503.) Where five attachments were separately sued out against one stock of goods, the question of ownership is a single controversy. (Anderson v. Gerding, 3 Woods, 487.) There may be a removal of that part of a cause which concerns the original parties (Temple v. Smith, 4 Fed. Rep. 392; 2 McCrary, 226), notwithstanding that a State statute may declare that the trial as to certain other parties cannot be separated from the trial of the main cause. (Ellerman v. New Orleans M. & T. R. Co., 2 Woods, 120.) But the circuit court has no authority to decide an action not yet before it, to obtain_jurisdiction over one of several tenants in common. (Ex parte Turner, 3 Wall. Jr. 258.)

(Welch

Right to remove.-The right to remove, under Revised Statutes, section six hundred and thirty-nine, attaches in every case (1) where the controversy is between citizens of different States; (2) where the matter in dispute exceeds five hundred dollars, exclusive of costs; (3) under the Act of 1867, the citizen of such other State must file the required affidavit as to local prejudice; and (4) he must give the required security for his appearance. (Johnson v. Monell, I Woolw. 390.) Under the Act of 1875, the affidavit of local prejudice is not necessary. (Allen v. Ryerson, 2 Dill. 501.) It must appear that the contest in the suit is between citizens of different States. v. Tennent, 4 Cal. 293; Greely v. Townsend, 25 Cal. 604. ) The right depends on the citizenship of the persons who are parties to the record, although others have an interest in the suit (Robb v. Parker, 3 Rich. N. S. 60); or on foreign citizenship or alienage. (Fisk v. Union P. R. Co., 6 Blatchf. 364.) Under the Act of 1866, the suit must be brought by a citizen of the State in which it is pending (Amory v. Amory, 95 U. S. 186; Sands v. Smith, 1 Dill. 290; Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472); for if brought by a citizen of another State, or an alien, it cannot be removed (Amory v. Amory, 95 U. S. 186; Sands v. Smith, 1 Dill. 290; Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Knickerbocker L. Ins. Co. v. Gerbach, 70 Pa. St. 150); and taking out letters of administration will not make him a citizen (Amory v. Amory, 95 U. S. 186); and if defendant was a citizen at the commencement of the suit, he cannot, by becoming a citizen of another State, acquire the right to remove. (Dart v. Walker, 43 How. Pr. 29. But see McGinnity v. White, 3 Dill. 350.) This section has no reference to a case where one of the defendants is an alien, and the others are citizens of another State, and none, or none served, are citizens of the State where the suit is brought. (Davis v. Cook, 9 Nev. 134.) Under the Act of 1866 a plaintiff has no right to remove the cause (Sands v. Smith, 1 Dill. 290); but under the Act of 1875 either party may remove, all forming the party on one side being citizens of different States from those on the other. (Ruble v. Hyde, 3 Fed. Rep. 330; 1 McCrary, 513.) The right is confined to the alien or non-resident defendant. (Sew.

Mach. Cos.' Cas., 18 Wall. 553; S. C., 110 Mass. 70.) It applies only where there are two defendants, one of whom is a citizen of another State or an alien. (George v. Pilcher, 28 Gratt. 299; Davis v. Cook, 9 Nev. 134; Goodrich v. Hunton, 29 La. An. 372; Fairchild v. Durand, 8 Abb. Pr. 305; see Schwab v. Hudson, 11 Chic. L. N. 372; Cessel v. McDonald, 16 Blatchf. 150.) If a defendant is sued jointly with others, he may remove, though he afterward becomes sole defendant. (Yulee v. Vose, 99 U. S. 539; S. C., 64 N. Y. 449.) If the defendants are entitled to sever, those only need unite in the petition who are entitled to remove (Lewis v. White, 7 Chic. L. N. 116), and the cause will be removed only as to the defendant who petitions. (Wormser v. Dahlman, 16 Blatchf. 319; S. C., 57 How. Pr. 286.) On a joint application the removal may be granted to one and denied as to the other. (Dart v. Walker, 4 Daly, 188.) The right, if claimed by the mode prescribed, depends on the case disclosed by the pleadings (Barney v. Latham, 103 U. S. 205); and equitable defenses will not prevent a removal. (Tarver v. Ficklin, 60 Ga. 373.)

in

$ 98.

As relates to parties.-And when any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. ("Plaintiffs or" in Act of March 3, 1875, omitted herein. 25 U. S. Stats. 433.)

See Desty's REMOVAL, sec. 96.

The right of

Right dependent on citizenship. removal depends on foreign citizenship or alienage. (Fisk v.U. P. R. Co., 6 Blatchf. 364.) Suits against an alien include only suits between an alien and a State, or a citizen thereof. (Mossman v. Higginson, 4 Dall. 11; Hodgson v. Bowerbank, 5 Crauch, 363.) If both parties to a suit are aliens, there can be no removal (Orosco v. Gagliardo, 22

Cal. 83), nor can there be a removal if plaintiff is an alien (Galvin v. Boutwell, 9 Blatchf. 470); and if a citizen of the State is one of the defendants with an alien, it cannot be removed. (Denniston v. Potts, 19 Miss. 36.) An alien is not a citizen, though the State laws have given him a right to vote. (Lanz v. Randall, 4 Dill. 425.) Resident unnaturalized foreigners may remove causes, although by State laws they may vote or hold office under the State government. (Lanz v. Randall, 4 Dill. 425.) If an alien has merely filed his declaration of intention to become a citizen, he is still an alien. (Lanz v..Randall, 4 Dill. 425.) A foreign corporation is an alien, and may remove the cause. (Terry v. Imperial F. Ins. Co., 3 Dill. 408.) To authorize a removal, the controversy must be between a citizen of the State where suit is brought and a citizen of another State (West v. Aurora, 6 Wall. 139), and the requisite citizenship must exist at the time of the commencement of the action. (Rawle v. Phelps, 8 Fed. Rep. 356.) That it is sufficient if it existed at the time of the application for removal has also been decided. (McLean v. St. Paul & Chicago R. Co., 16 Blatchf. 309; Jackson v. Mutual Ins. Co., 3 Woods, 413; Jackson v. Ins. Co., 60 Ga. 423; Insurance Co. v. Laettel, 7 Cent. L. J. 378; Curtin v. Decker, 11 The Reporter, 290.) The right founded on citizenship of the parties depends on their citizenship as persons. (Amory v. Amory, 95 U. S. 186.) The citizenship of executors is determined by the State in which they are citizens, and not by the State where they take out letters (Amory v. Amory, 95 U. S. 186; Geyser v. Hancock Mut. Life Ins. Co., 50 N. H. 224); so if an executor or administrator removes to another State, he may sue in the State where his letters were granted. (Rice v. Houston, 13 Wall. 66.) If the action is by or against the deceased, the executor or administrator may prosecute or defend it, without reference to his own citizenship (Clarke v. Matthewson, 12 Peters, 164; S. C., 2 Sum. 262); but if he and the defendant are citizens of the same State, the Federal court has no jurisdiction, although the intestate or testator was a citizen of another State. (Coal Co. v. Blatchford, 11 Wall. 172; Dodge v. Perkins, 4 Mason, 435; Childress v. Emery, 8 Wheat. 642; Carter v. Treadwell, 3 Story, 25; Green's Administratrix v. Creighton, 23 How. 90.)

Qualifications as to citizenship.-Under the first clause of section six hundred and thirty-nine, a case cannot be removed unless all the parties plaintiff are citizens of the State where the suit is brought, and all the defendants are citizens of some other State, or are aliens (Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286; Smith v. Rines, 2 Sum. 330; Ward v. Arredondo, 1 Paine, 410; W. A. & G. R. Co. v. A. & W. R. Co., 19 Gratt. 592; Denniston v. Potts, 19 Miss. 36; Pugsley v. Freedmen's S. & T. Co., 2 Tenn. Ch. 130; In re Turner, 3 Wall, Jr. 26, 263; Beery v. Irick, 22 Gratt. 484; Perkins v. Morgan, 27 La. An. 229; Goodrich v. Hunton, 20 La. An. 372; Hazard v. Durant, 9 R. I. 602; Calderwood v. Hager, 20 Cal. 167; Calderwood v. Braly, 28 Cal. 97; Bryan v. Ponder, 23 Ga. 480; Hubbard v. Northern R. Co., 3 Blatchf. 84; Wilson v. Blodgett, 4 McLean, 363; Fiske v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Denniston v. Potts, 19 Miss. 36; Taylor v. Rockefeller, 25 Pitts. L. J. 137; Dunn v. Waggoner, 3 Yerg. 59); so where three out of four were aliens, the application was denied. (Dennistoun v. N. Y. & N. H. R. Co., 1 Hilt. 62; S. C., 2 Abb. Pr. 278.) If an indispensable party was a citizen of the same State with the plaintiff, jurisdiction would be defeated (Commercial etc. Bank of Vicksburg v. Slocomb, 14 Peters, 65; Hagan v. Walker, 14 How. 36; Shields v. Barrow, 17 How. 141; Clearwater v. Meredith, 21 How. 492; Barney v. Baltimore City, 6 Wall. 286; Jones v. Andrews, 10 Wall. 332; Bryant v. Rich, 21 Wall. 41; S. C., 106 Mass. 192; Ober v. Gallagher, 93 U. S. 99; Wilson v. Blodgett, 4 McLean, 363; Imbusch v. Farwell, 1 Blatchf. 571; Tuckerman v. Bigelow, 21 Law Reporter, 208); so if a citizen of a State is joined with a citizen of another State (Hubbard v. Northern R. Co., 3 Blatchf. 84,) or where suit is brought by an alien conjointly with a citizen of the State (Dennistoun v. N. Y. & N. H. R. Co., 1 Hilt. 62; S. C., 2 Abb. Pr. 278, 415), or if some of the defendants are citizens of the State where suit is brought (Hatch v. Chicago, R. I. etc. Co., 6 Blatchf. 105; Wilson v. Blodgett, 4 McLean, 363; Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286; Smith v. Rines, 2 Sum. 338; Calderwood v. Hager, 20 Cal. 167; New Orleans C. & B. Co. v.