the State court, although a rule of the practice of such court disqualifies him.383 It is safer practice to add to the bond, an affidavit of a surety, that he has sufficient property, subject to execution in the district and over and above all other debts and liabilities, to meet the penalty of the bond.84 It has been held that the objection that there is no evidence of the sufficiency of the sureties is waived if not made at the time when the bond is presented to the State court; 35 and that the sureties are not bound to justify until a rule or order to that effect has been made.36 Technical defects in the form of a bond may be cured by amendment after the time for a removal has expired.37 Such have been held to be: the omission of a seal,38 a mistake in the name of the obligee,39 an omission of a penal clause,40 an error in the statement of the time when the transcript shall be filed.41 But not where there is a penal clause, an omission of the amount of the penalty,42 nor an omission of a provision for the payment of costs in case of a remand.43 Fayette Title & Tr. Co. v. Maryland, P. & W. V. T. & T. Co., 180 Fed. 928. V. 33 Probst v. Cowen, 91 Fed. 929. 34 Weed Sewing Mach. Co. Smith, 71 Ill. 204; Cleveland C. C. & St. L. Ry. Co. v. Monaghan, 140 Ill. 474, 30 N. E. 869 (affirming 41 Ill. App. 498); Farmers' Loan & Trust Co. v. Lake Street El. R. Co., 173 Ill. 439, 51 N. E. 55 (affirming 68 Ill. App. 666); Goddard v. Bosson, 21 Kansas 139. 35 Terre Haute & I. R. Co. v. Abend, 9 Ill. App. (9 Bradw.) 304; Western Union Tel. Co. v. Horack, Id. 309; Stone v. Sargent, 129 Mass. 503; Bates v. Baltimore & O. R. Co., 39 Ohio St. 157. 36 Empire Transp. Co. v. Richards, 88 Ill. 404. 37 Beede v. Cheeney, 5 Fed. 388; Deford v. Mehaffy, 13 Fed. 481; Harris v. Delaware, L. & W. R. Co., 18 Fed. 833; Overman Wheel Co. v. Pope Mfg. Co., 46 Fed. 577; Loop v. Winters' Estate, 115 Fed. 362. 38 Overman Wheel Co. v. Pope Mfg. Co., 46 Fed. 577; Loop v. Winters' Estate, 115 Fed. 362. 39 Harris v. Delaware, L. & W. R. Co., 18 Fed. 833. 40 Johnson v. F. C. Austin Mfg. Co., 76 Fed. 616. 41 Chase v. Erhardt, 198 Fed. 305; State Improvement Development Co. v. Leininger, 226 Fed. 884. 42 Burdick v. Hale, 7 Bissell 96, Fed. Cas. No. 2,147; Austin V. Gagan, 5 L. R. A. 476, 39 Fed. 626. 43 Torrey v. Grant Locomotive Works, Fed. Cas. No. 14,105 (14 Blatchf. 269); Webber v. Bishop, 13 Fed. 49. Contra, Dennis v. Alachua, Fed. Cas. No. 3,791, 3 Woods, 683, 688; Deford v. Mehaffy, 13 Fed. 481, 487, 492. 44 By taking subsequent steps in the case, without moving to remand, defects in the form of the bond, or to the sufficiency of the sureties, are waived.45 It is the regular and the safer practice to procure the approval of the bond by the State court. It has been held that the State court has the power to determine whether the bond is sufficient in substance and form; 46 but that its rejection cannot be arbitrary; 47 that the determination of the sufficiency of the sureties is largely within the discretion. of the State court, to which the bond is presented; 48 that the refusal to approve the bond, at least when not based upon the insufficiency of the sureties, may be reviewed by the District Court of the United States, when a motion for a remand is made,19 or by the Supreme Court of the United States, upon writ of error to the final judgment in the case by the State court of last resort; 50 and that the objection that the signatures to the bond were not properly acknowledged or provided, if not raised in the State court, is waived.51 Where the State court had denied and refused the petition, without assigning any reason for the same, the Federal court refused to remand the cause because there was no sufficient surety to the bond, when the principals were amply responsible.52 44 Hervey v. Illinois Midland Ry. Co., 3 Fed. 707; Grow v. Wiman, 3 N. Y. St. Rep. 281. 45 Probst v. Cowen, 91 Fed. 929. 46 Miller v. Soule, 221 Fed. 493; Mix v. Andes Ins. Co., 74 N. Y. 53, 56. See State ex rel. Basket v. Woodson (Missouri), 64 S. W. 774; Henen v. Baltimore & O. R. Co., 17 W. Va. 881. It was held, upon a record showing that a petition and bond were filed in the State court, and that subsequently a motion was made to strike the petition from the files, but not showing that any action was ever had on such motion, although other entries were afterwards made in the cause; that it could not be assumed that the petition and bond were never presented to the State court for approval. Probst v. Cowen, 91 Fed. 929. 47 Taylor v. Shew, 54 N. Y. 75. 48 Fitz's Syndic V. Hayden (Louisiana), 4 Mart. (N. S.) 653; Bell v. Lycoming Fire Ins. Co. (New York), 3 Hun 409, 6 Thomp. & C. 54. 49 Fiske v. Union Pac. R. Co. Fed. Cas. No. 4,827 (6 Blatchf. 362); Dennis v. Alachua County, Fed. Cas. No. 3,791 (3 Woods 683); Groton Bridge & Mfg. Co. v. American Bridge Co., 137 Fed. 284; Mutual Life Ins. Co. v. Langley, 145 Fed. 415. 50 Removal Cases, 100 U. S. 457, 25 L. ed. 593. 51 Cooke v. Seligman, 7 Fed. 263, 266. 52 Chambers v. McDougal, 42 Fed. 694. The presence of the defendant in court at the time when the bond is presented is unnecessary; 53 and if the surety is present, the bond itself need not be presented to the State Court, but may be filed after his acceptance.54 It has been held that the State court cannot reject a bond because of a technical objection, without affording the applicant an opportunity to correct the error; 56 but that the court need not postpone the trial in order to allow a party time to amend his bond.57 The penal sum named in the bond is a penalty, and not liquidated damages.58 The damages for which the sureties are liable cannot exceed the costs awarded upon the remand.59 No suit can be brought thereupon until after the cause has been remanded. A dismissal of the case that has been removed, upon a failure of the defendant to appear and put in special bail, will prevent a suit against the surety.60 It has been held that, in the absence of any stipulation in the removal bond that judgment may be entered thereupon in case of a breach, without the necessity of any new action, no such judgment can be entered, and the surety is not liable until after judgment in an independent suit; 61 but that the District Court of the United States, upon a remand, has jurisdiction to enter judgment for costs, including the attorney's docket fee, against the plaintiff.62 § 548. Order of State court upon removal. No order of the State court is necessary upon a removal.1 Such orders have, however, been often made. It has been held that such an order, 53 Brown v. Crippin (Virginia), 4 Hen. & M. 173. 54 Tunstall v. Parish of Madison, 30 La. Ann. 471. 56 Taylor v. Shew, 54 N. Y. 75; Grow v. Wilman, 3 N. Y. St. Rep. 281; Chase v. Erhardt, 198 Fed. 305. 57 Harrold v. Arrington, 64 Tex. 233. 58 Henry v. Louisville & N. R. Co., 91 Ala. 585, 8 South 343. 59 Hale v. Fallon, 4 N. J. L. J. 308. 60 Welch v. Thorn, 16 La. 188. 61 Colburn v. Hill, 103 Fed. 340, 43 C. C. A. 253. 62 Pellett v. Great Northern Ry. Co., 105 Fed. 194. § 548. 1 Insurance Co. v. Dunn, 19 Wallace 214, 22 L. ed. 68; Kern v. Huidekoper, 103 U. S. 485, 26 L. ed. 354; Fisk v. Union Pac. R. Co., Fed. Cas. No. 4,827 (6 Blatchf. 362); Hatch v. Chicago, R. I. & P. R. Co., Fed. Cas. No. 6,204 (6 Blatchf. 105); Commercial & Sav. Bank v. Corbett, Fed. Cas. No. 3,057 (5 Sawy. 172); Petrie v. Pennsylvania R. Co., Fed. Cas. No. upon a petition which set forth the jurisdictional facts, should not be subsequently set aside by the court that made it.2 An order by a State court denying the prayer for a removal was said to be a breach of judicial comity. Such an order is always disregarded by the Federal courts, which considers the question de novo, upon a motion for a remand.1 § 548a. Practice upon removal for fraudulent joinder of parties. A petition for removal because of the fraudulent joinder of parties should be verified or supported by an affidavit. It should show that there could be a removal if the petitioner were the sole defendant and then set forth the facts showing the fraudulent joinder. It must allege facts and not con 11,040a; Wilson v. Western Union Tel. Co., 34 Fed. 562; La Page v. Day, 74 Fed. 977; Eisenmann v. Delama Gold Min. Co., 87 Fed. 248; Mutual Life Ins. Co. v. Langley, 145 Fed. 415; City of Montgomery v. Postal Telegraph-Cable Co., 218 Fed. 471; State Improvement-Dev. Co. v. Leininger, 226 Fed. 884; Nelson v. Black Diamond Mining Co., 237 Fed. 264; Muir v. Louisville & N. R. Co., 247 Fed. 885; Duff v. Hildreth, 67 N. E. 356, 183 Mass. 440; Le Roux v. Bay Circuit Judge, 4 Mich. 189, 9 N. W. 154; St. Anthony Falls Water Power Co. v. King Wrought Iron Bridge Co., 23 Minn. 186, 23 Am. Rep. 682; Scheffer v. National Life Ins. Co., 25 Minn. 534; Richards V. Modern Woodmen of America, 85 N. W. 999, 14 S. D. 440. 2 State Improvement-Dev. Co. v. Leininger, 226 Fed. 884; Chamberlain v. American Nat. Life & Tr. Co., 11 Hun (N. Y.) 370. 3 Chambers v. McDougal, 42 Fed. 694, 696. 4 Atlantic Coast Line R. Co. v. Bailey, 151 Fed. 891; and authorities cited, infra, § 556. at L. 1087; Kansas City Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 303, 34 L. ed. 963, 964. Supra, § 545. 2 Offner v. Chicago & E. R. Co., C. C. A., 148 Fed. 201, 203. 66 , 3 Offner v. Chicago & E. R. Co., C. C. A., 148 Fed. 201 (where the allegations that one of the defendants was not a party to the alleged negligence" and "was fraudulently joined as a party defendant, solely for the purpose of defeating your petitioner's right to remove this cause, were held to be insufficient, since the declaration charged facts sufficient to establish a cause of action against that defendant); Clark v. Chicago, R. I. & P. Ry. Co., 194 Fed. 505, holding that the petition should also aver that the plaintiff knew when he joined a resident defendant, or had then sufficient reason in law to know, that he had no cause of action against the latter. Eastin & Knox v. Texas & P. Ry. Co. (Texas), 92 S. W. 838; reversing 89 S. W. 440. But see Donovan v. Wells, Fargo & Co., C. C. A., 169 Fed. 363. The following allegations have been held to be sufficient: "As to Wettengel, the citizen of Missouri, it was alleged in the removal petition that he was not, at the time of the accident or prior thereto, charged with the superintendence and oversight of the plaintiff, or with the duty of superintending and properly planning the construction of the furnace, or providing a reasonably safe and suitable furnace and pots and railings or other device to protect the plaintiff, and was not charged with the duty of placing reasonably safe and sufficient hoisting apparatus, nor with the duty of instructing the petitioner in respect to his duties, as charged in the complaint, and, after stating that Schenck, like the defendant corporation, was a nonresident of Missouri and a citizen of another State, charged that Wettengel had been improperly and fraudulently joined as a defendant for the purpose of fraudulently and improperly preventing, or attempting to prevent, the defendant from removing the cause to the United States Circuit Court, and that the plaintiff well knew, at the time of the beginning of the suit, that Wettengel was not charged with the duties aforesaid, and that he was joined as a party defendant to prevent the removal of the cause and not in good faith." Wecker v. National Enameling & Stamping Co., 204 U. S. 176, 180, 51 L. ed. 430, 433. "That the defendant Strause was at the time of the injury in question an employe of the petitioner, and had nothing whatever to do with the inspection or other control over the engine of which the plaintiff complains, and that the duties of said Strause were those of a yard master-confined exclusively to the making up of trains; and that said Strause was joined as a co-defendant for the sole purpose of avoiding and defeating the jurisdiction of the United States court, and to fraudulently deprive the petitioner of the right of removal." Kelly v. Chicago & A. Ry. Co., 122 Fed. 286, 289. "Your petitioner further says: that in this suit plaintiff has fraudulently, wrongfully, improperly, and illegally joined as co-defendant one George Coffman, who is alleged by plaintiff in his petition to be a citizen and resident of the State of Kentucky; and your petitioner says that George Coffman was fraudulently, wrongfully, improperly and illegally joined as a co-defendant in this suit because of the alleged fact, if it is a fact, that said George Coffman is a citizen and resident of the State of Kentucky, for the sole purpose of defeating the jurisdiction of the United States court. Your petitioner says that it denies that the said George Coffman is a citizen and resident of the State of Kentucky, and says that George Coffman has never been served with summons herein, and that it is not the purpose or intent of the plaintiff to prosecute the action in good faith against the said George Coffman, but that the said George Coffman was made a party defendant herein for the sole purpose and reason of attempting to defeat the removal of this cause to the Circuit Court of the United States, and to defeat the jurisdiction of the said Circuit Court of the United States; and your petitioner further says that the said George Coffman did not in any manner or degree contribute to the death or injury of |