On the other hand, where such a joinder is made with the knowledge on the plaintiff's part that the allegations on which it is based are false, and that he cannot expect to recover, and with the intent on his part to defeat the right of removal, he will fail in his object, and the court, on proper charges in the petition, will permit such removal. Such a right of removal, however, when sustainable under these authorities, rests upon the necessity of practically proving bad faith, and a motive to defeat removal is not sufficient evidence of bad faith.11

Rearrangement of Parties

In passing upon the right of removal, the same principle applies as in original suits. The court judges of the right by the actual interest of the parties, and not by the method in which the pleader may choose to arrange them.12

11 Wecker v. National Enameling & Stamping Co., 204 U. S. 176, 27 Sup. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757; Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521; Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 102, 33 Sup. Ct. 684. 57 L. Ed. ; Hukill v. Maysville & B. S. R. Co. (C. C.) 72 Fed. 745; Union Terminal R..Co. v. Chicago, B. & Q. R. R. Co. (C. C.) 119 Fed. 209; Bryce v. Southern R. Co. (C. C.) 125 Fed. 958; Crawford v. Illinois Cent. R. Co. (C. C.) 130 Fed. 395; Boatmen's Bank of St. Louis v. Fritzlen, 135 Fed. 650, 68 C. C. A. 288; McGuire v. Great Northern R. Co. (C. C.) 153 Fed. 434; Foster v. Coos Bay Gas & Electric Co. (C. C.) 185 Fed. 979; Enos v. Kentucky Distilleries & Warehouse Co., 189 Fed. 342, 111 C. C. A. 74; Armstrong v. Kansas City Southern R. Co. (C. C.) 192 Fed. 608; Clark v. Chicago, R. I. & P. R. Co. (D. C.) 194 Fed. 505. See “Removal of Causes," Dec. Dig. (Key-No.) § 36; Cent. Dig. § 79.

12 Removal Cases, 100 U. S. 457, 25 L. Ed. 593; Evers v. Watson, 156 U. S. 527, 15 Sup. Ct. 430, 39 L. Ed. 520; Steele v. Culver, 211 U. S. 26, 29 Sup. Ct. 9, 53 L. Ed. 74. See "Removal of Causes," Dec. Dig. (Key-No.) § 37; Cent. Dig. § 80.

CONTROVERSIES BETWEEN CITIZENS OF THE SAME STATE CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES

117. As the federal courts are given jurisdiction of controversies between citizens of the same state claiming lands under grants of different states, such a case would be removable.

In such case, however, there is a special provision in section 30 of the Judicial Code, which shows the method under which it is necessary to make it appear to the court that such a question is involved. The language of that section is as follows: "If in any action commenced in a state court the title of land be concerned, and the parties are citizens of the same state and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a state, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the district court of the United States next to be holden in such district; and any one of

either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim."

It should be noted that no monetary limit is required in suits of this nature originally instituted in the district court under section 24 of the Judicial Code, whereas there is a limit of $3,000 as to suits removed on this ground.

CONTROVERSIES BETWEEN CITIZENS OF A STATE AND FOREIGN STATES, CITIZENS OR SUBJECTS

118. In such case the right of removal exists, as it is a class of which the federal courts are given original jurisdiction by the twenty-fourth section of the Judicial Code.

This class does not cover controversies between aliens. Of such cases the federal courts have no jurisdiction.13

There is a conflict of decision on the question whether a federal court would have jurisdiction in a case where citizens of a state are plaintiffs, and citizens of a different state and aliens are defendants.

In Tracy v. Morel 14 it is held that this latter is a casus omissus in the statute, and that the federal courts would not have jurisdiction. On the other hand, in Roberts v. Pacific & A. R. & Nav. Co.15 Judge Hanford, in a well-con

13 Merchants' Cotton Press & Storage Co. v. Insurance Co. of N. A., 151 U. S. 368, 14 Sup. Ct. 367, 38 L. Ed. 195; Pooley v. Luco (C. C.) 72 Fed. 561; ante, p. 262. See "Removal of Causes," Dec. Dig. (Key-No.) § 41; Cent. Dig. §§ 822-84.

14 (C. C.) 88 Fed. 801. See "Removal of Causes," Dec. Dig. (KeyNo.) § 41; Cent. Dig. §§ 822-84.

15 (C. C.) 104 Fed. 577, affirmed on this point but reversed on the merits 121 Fed. 785, 58 C. C. A. 61. See "Removal of Causes," Dec. Dig. (Key-No.) § 41; Cent. Dig. §§ 822-84.

sidered opinion, holds that such a case would fall within the federal jurisdiction. It seems to the author that, however liberally the removal act ought to be construed, the line of decisions holding that the case does not fall within the jurisdiction of the federal courts best accords with the statute. If a federal court has jurisdiction, it must be under one of two phrases in the first section of the Act of August 13, 1888-either on the language, (1) "in which there shall be a controversy between citizens of different states"; or (2) "a controversy between citizens of a state and foreign states, citizens or subjects.'

If the rulings of the federal courts in other connections. to the effect that a "controversy between citizens of different states" means a controversy in which all the citizens' on one side and all the citizens on the other are citizens of different states, jurisdiction in the case supposed could certainly not be supported upon that, for one of the parties defendant in such case is not a citizen, but an alien. On the other hand, if that same principle of construction is applied to the second class, a controversy in the case supposed is not between citizens of a state and foreign states, citizens or subjects, for one of the defendants is neither a foreign state, citizen nor subject, but a citizen of a different state. This would seem to be the necessary construction of the statute, and this is the view taken by the standard work on the subject.16

A suit by an alien against a corporation, nonresident in the district where the suit is brought, is removable by the nonresident corporation.17 And so as to a suit by a citizen

16 Black, Dill. Rem. Causes, § 34.

17 Stalker v. Pullman's Palace-Car Co. (C. C.) 81 Fed. 989; Decker V. Southern R. Co. (C. C.) 189 Fed. 224; Smellie v. Southern Pac. Co. (D. C.) 197 Fed. 641. But there is some conflict. Odhner v. Northern Pac. R. Co. (C. C.) 188 Fed. 507. See "Removal of Causes," Dec. Dig. (Key-No.) § 27; Cent. Dig. §§ 64-68.

against an alien.18 But not a suit by a state against an alien nonresident.19

PARTIES ENTITLED TO REMOVE

119. Under all the classes of cases previously discussed, except cases arising under the Constitution and laws of the United States, the right of removal is in the defendant, provided he is a nonresident.

As the right to confer jurisdiction in such cases on the federal courts is based on the theory of protection from local prejudice or injustice, it is natural that only the nonresident should have the right to remove in cases where the jurisdiction does not depend upon a federal question; and the statute follows this theory in the second sentence of section 28 of the Judicial Code.

Here, too, the principle applies that all of the defendants who are necessary parties must join in the petition to remove, and that all must be nonresidents. Though the citizenship might otherwise be such as would give the federal courts jurisdiction over the subject-matter, still in this case only the nonresident can remove.20

If, however, the permanent residence of the defendant is outside of the district where suit is brought, his temporary

18 Wind River Lumber Co. v. Frankfort Marine, Accident Plate Glass Ins. Co., 196 Fed. 340, 116 C. C. A. 160. See "Removal of Causes," Dec. Dig. (Key-No.) §§ 27, 45; Cent. Dig. §§ 64-68, 89.

19 O'Conor v. Texas, 202 U. S. 501, 26 Sup. Ct. 726, 50 L. Ed. 1120. See "Removal of Causes," Dec. Dig. (Key-No.) § 41; Cent. Dig. §§ 8212-84.

20 Martin v. Snyder, 148 U. S. 663, 13 Sup. Ct. 706, 37 L. Ed. 602; Blackburn v. Blackburn (C. C.) 142 Fed. 901; Hackett v. Kuhne (C. C.) 157 Fed. 317; McNaul v. West Indian Securities Corp. (C. C.) 178 Fed. 308. See "Removal of Causes," Dec. Dig. (Key-No.) §§ 44, 45; Cent. Dig. §§ 88, 89.