all the matters set forth in the petition, and believes them to be true. The petition must be verified by affidavit.

THE REMOVAL BOND

128. In order to effect a removal, the petitioner is required to file a bond, with proper surety, to insure the transfer on his part of the record in the case to the proper federal court at the proper time, and to cover all costs incident to the removal of the case.

Section 29 of the Judicial Code requires, in reference to the main sources of jurisdiction by removal, that with the petition the petitioner shall file a bond, "with good and sufficient surety, for his or their entering in such district court within thirty days from the date of filing said petition a copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein."

This bond is not an ordinary court bond, and the word "bond" is not used in the sense of a writing obligatory, and it need not be executed by the party asking the removal nor be accompanied by a power of attorney when signed by an agent.27

In the Removal Cases 28 the Supreme Court approved a bond not under seal and signed with the plaintiff's name by

27 Removal Cases, 100 U. S. 457, 25 L. Ed. 593; Loop v. Winter's Estate (C. C.) 115 Fed. 362; People's Bank of Greenville v. Etna Ins. (C. C.) 53 Fed. 161; Mutual Life Ins. Co. of New York v. Langley (C. C.) 145 Fed. 415; Fayette Title & Trust Co. v. Maryland P. & W. V. Telephone & Telegraph Co. (C. C.) 180 Fed. 928. See "Removal of Causes," Dec. Dig. (Key-No.) § 88; Cent. Dig. §§ 184-188.

28 100 U. S. 457, 25 L. Ed. 593. See "Removal of Causes," Dec. Dig. (Key-No.) § 88; Cent. Dig. §§ 184-188.

his attorneys. A defect in a bond is not jurisdictional, but the court may allow it to be amended, or a new one to be substituted.29

The statute does not name any fixed amount as a penalty. There is some difference of opinion among the courts whether a bond should name a penalty or not. It would seem to be the correct practice to name a penalty, but the penalty named should be sufficiently large to cover all possible costs in the event of a remand; and, if it is, the better opinion is that the bond would be in proper form.30

TIME OF FILING PETITION

129. The petition for removal must be filed at or before the time when the defendant is required by the laws of the state, or the rule of the state court in which the suit is brought, to first answer or plead to the declaration or complaint of the plaintiff. But the question of the time of filing the petition is not one of jurisdiction, but merely modal or formal, and may be waived.

In the cases covered by the twenty-eighth section of the Judicial Code, except removals on the ground of prejudice or local influence, the statute requires that the defendant may make and file a petition in such suit in such state court at the time or any time before the defendant is required by the laws of the state, or the rule of the state court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff. This is quite a departure

29 Overman Wheel Co. v. Pope Mfg. Co. (C. C.) 46 Fed. 577; Ayres v. Watson, 113 U. S. 594, 5 Sup. Ct. 641, 28 L. Ed. 1093; Chase v. Erhardt (D. C.) 198 Fed. 305. See "Removal of Causes," Dec. Dig. (Key-No.) § 88; Cent. Dig. §§ 184-188.

30 Commonwealth v. Louisville Bridge Co. (C. C.) 42 Fed. 241; Johnson v. F. C. Austin Mfg. Co. (C. C.) 76 Fed. 616; Groton Bridge Co. v. American Bridge Co. (C. C.) 137 Fed. 284. See "Removal of Causes," Dec. Dig. (Key-No.) § 88; Cent. Dig. §§ 184-188.

from the policy of the earlier acts, which allowed a longer time within which to file the petition. At the same time, the question of the time of filing the petition is not one of jurisdiction, but is, as has been said more than once, merely modal and formal. Hence it is a requirement which may be waived either by direct consent or by conduct. The plaintiff who wishes to contend that the petition has not been filed in time must act promptly. If he goes to trial on the merits, or contests the right of removal on other grounds, he waives this right.31

Nor can this question be raised for the first time in an appellate court.82

But

The question when the petition should be filed depends upon the statutes and practice of the different states. the petition must be filed when the defendant is required to put in any defense to the complaint, whether of a dilatory character or to the merits. If, under the practice of the state court, dilatory pleas must be filed at an earlier date than pleas to the merits, then the defendant must file his petition at the time when the dilatory plea is due.33 Rule in Case of Extension of Time

The question whether an extension of time within which the defendant shall answer extends the time for filing the petition is one in which the decisions are in great conflict. In the New York circuit it is held that such an extension does extend the time for filing the petition.*

31 Guarantee Co. of North Dakota v. Hanway, 104 Fed. 369, 44 C. C. A. 312; Martin v. Baltimore & O. Ry. Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311; Kansas City, Ft. S. & M. R. Co v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963. See "Removal of Causes," Dec. Dig. (Key-No.) § 81; Cent. Dig. §§ 137, 138. 32 Knight v. International & G. N. R. Co., 61 Fed. 87, 9 C. C. A. 376; Newman v. Schwerin, 61 Fed. 865, 10 C. C. A. 129. See "Removal of Causes," Dec. Dig. (Key-No.) § 81; Cent. Dig. § 137.

33 MARTIN v. RAILWAY CO., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311; A. Overholt & Co. v. German-American Ins. Co. (C. C.) 155 Fed. 488. See "Removal of Causes," Dec. Dig. (Key-No.) § 79; Cent. Dig. §§ 135-160.

34 Lord v. Lehigh Val. R. Co. (C. C.) 104 Fed. 929; Dancel v. Good.

There is, however, highly respectable authority the other way.35

The decisions in the different districts on this point are necessarily largely influenced by the practice of the states in which the decisions are rendered. The case of Martin v. Baltimore & O. Ry. Co., above cited, seems to establish that the petition must be filed before any judgment of default, even conditional in its nature, is entered against the defendant. Hence, on principle, the proper doctrine appears to be that if, at the time the extension is granted, no judgment by default has been entered against the defendant, and if the effect of the extension is that no judgment by default can be entered until the period of extension expires, then the defendant can file his petition during such extension. But if a judgment by default has to be set aside in order to grant the extension, it would be too late.

In Chiatovich v. Hanchett 3 the court held that an extension by stipulation of parties, without any court order, extended the time for filing the petition. This apparently is going too far, as the question is determined, under the language of the statute, not by special interchanges of courtesies among counsel, or by orders in special cases, but by the general laws or rules of the state court. No better test can be laid down as to the general provision than the language of the statute itself. If, under the state practice, the defendant is required, first, whether there is

year Shoe Mach. Co. (C. C.) 106 Fed. 551. See, also, Avent v. Deep River Lumber Co. (C. C.) 174 Fed. 298; Higson v. North River Ins. Co. (C. C.) 184 Fed. 165. See "Removal of Causes," Dec. Dig. (KeyNo.) § 79; Cent. Dig. § 144.

See, also, Heller v.
Wayt v. Standard

35 Fox v. Southern R. Co. (C. C.) 80 Fed. 945. Ilwaco Mill & Lumber Co. (C. C.) 178 Fed. 111; Nitrogen Co. (C. C.) 189 Fed. 231. See "Removal of Causes," Dec. Dig. (Key-No.) § 79; Cent. Dig. § 144.

36 (C. C.) 78 Fed. 193. See, also, Tevis v. Palatine Ins. Co. of London, England (C. C.) 149 Fed. 560. See "Removal of Causes," Dec. Dig. (Key-No.) § 79; Cent. Dig. § 144.

any extension or not, to plead to the declaration or complaint, whether that plea be dilatory or peremptory, then he must file his petition when such plea is due. If the effect of the extension under the state practice is under the general rules of practice of that state, and not under special agreement of counsel, to extend the time within which he is first required to plead any sort of plea on pain of a default judgment, whether conditional or absolute, then the effect of the extension would be to extend the right of filing the petition. This seems to the author the meaning of the statute.

It has well been held that a party who is not served with process, and only appeared on condition that he should answer within a certain length of time, could file his petition during that time, though it extended the period beyond the time when he would have had to make defense, had he been served.37

If the service is void, the time does not run from such service, and the petition may be filed even after a judgment by default, for the judgment by default is void itself if the service is void.38

In proceedings against a nonresident on attachment and by publication, many state codes provide that the defendant may appear within a given time, if he has not been. served with process, set aside the judgment, and defend the case.

Under the act of 1875, which required the petition to be filed before the first term at which the case could be tried, the Supreme Court held that a nonresident defendant who appeared after the term and set aside the default could file his petition.39

37 Tracy v. Morel (C. C.) 88 Fed. 801. See "Removal of Causes," Dec. Dig. (Key-No.) § 79; Cent. Dig. § 144.

38 Tortat v. Hardin Min. & Mfg. Co. (C. C.) 111 Fed. 426. See "Removal of Causes," Dec. Dig. (Key-No.) § 79; Cent. Dig. §§ 141–146. 39 Harter Tp. v. Kernochan, 103 U. S. 562, 26 L. Ed. 411. See