of

V. That your petitioner has been held to bail herein in the sum dollars [or, has not been held to bail herein, and special bail was not originally requisite herein3].

VI. [If order to show cause is asked in a New York State couri, state condition of cause, and that no previous application has been made, according to directions on pages 116 and 129 of this volume.]9

VII. Your petitioner offers herewith his bond, with good and sufficient surety, in the penal sum of dollars, conditioned as by law required, for his entering in said Circuit Court of the United States, on the first day of its next session, a copy of the record in this suit, and for paying all costs that may be awarded by said Circuit Court if said court shall hold this suit was improperly or wrongfully removed thereto, [and also for his entering special bail in this action—if special bail was originally requisite.]

WHEREFORE your petitioner prays that said bond may be accepted, and that the said suit be removed into the next Circuit Court of the United States, in and for the District of

, pursuant to the laws of the United States, and that no further proceedings be had therein in this court [and that the bail required of your petitioner herein be discharged], or for such other or further relief as may be proper.

Verification of petition to remove cause to United States court.10

[Venue.]

Y. Z. [defendant above-named] being duly sworn, says [where defendant is an agent, that he is the general and managing agent of the defendant above-named]," that he has read the foregoing

824; Bryce v. Southern Ry. Co., 122 id. 709; Wirgman r. Persons, 126 id. 449; Dishon r. Cinn., etc., Ry. Co., 133 id. 471.

8 According to settled practice, this allegation is not necessary for the purpose of effecting removal; but if a State court order is desired, it may be useful in securing approval of the bond.

"Notice need not be given unless desired. See Ashe v. Union Cent. Life Ins. Co., 115 Fed. Rep. 234.

10 See, generally, paragraph 13.

p. 768.

11 Sustained by Shaft r. Phoenix Mut. Life Ins. Co., 67 N. Y. 544, 23 Am. Rep. 138.

petition and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters therein stated to be alleged, on information and belief, and as to those matters he believes it to be true.12

[Jurat.]

FORM NO. 458.

[Signature.]

Petition for removal because of prejudice or local influence.

13

[Title of U. S. Circuit Court,13 and cause.]

To the [state name of court at length]: Your petitioner, Y. Z., of

Honorable Court:

I. That on or about the

respectfully shows to this

named plaintiff, A. B., commenced an action of a civil nature against your petitioner as [the sole] defendant therein in the for the County of

court of the State of

;

that no trial of said cause has ever been had,14 and that said cause will be first triable at the term of said court, to be held day of

at

commencing on the

19 .

II. That the matter and amount in dispute in the said action exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and that said suit involves a [separable] controversy wholly between citizens of different States [and if the controversy is wholly between part of the parties add:] namely, between the above-named plaintiff, A. B., and your petitioner, Y. Z., and is one in which both A. B. and Y. Z. are actually interested and one which can be fully determined between them, being of the following nature [state nature of the separable controversy.]15

The absence of a verification, if not objected to by motion to remand, is waived. Canal, etc., Street R. R. Co. v. Hart, 114 U. S. 654.

If the petition filed in the State court be verified, the Circuit Court will treat it as prima facie true; but the adverse party may show that the real facts did not justify removal. Clarkhuff t. Wisconsin. etc.. R. R. Co.. 26 Fed. Rep. 465, holding that the resisting party has a right to contest the jurisdictional facts in the Circuit Court, and may do it by plea in abatement, without pleading to the merits. The case depended on citizenship. (On the question of joinder preventing re moval, the case has been overruled.)

.

As to the burden of proof on the contested facts, see Davies v. Wells, 134 Fed. Rep. 139; Virginia v. Felts, 133 id. 85.

12 Or the verification may be made by the attorney for the defendant. Bonner v. Meikle, 77 Fed. Rep. 485.

13 The application must be made to the Circuit Court. Southworth v. Reid, 36 Fed. Rep. 451; Bonner v. Meikle, 77 id. 485.

14 There can be no removal after trial once had. See Davis v. Chicago, etc., Ry. Co., 46 Fed. Rep. 307, and the foregoing text under REMOVAL FOR PREJUDICE, pp. 782-785.

15 A citizen of another State sued jointly with citizens of the same State

III. That your petitioner, Y. Z., was at the time of the commencement of this action and still is, a citizen of the State of residing at and a non-resident of the State

of

[naming State where suit is pending]; that A. B., the plaintiff, was then, and still is, a citizen of the State of [the State where the suit was commenced] residing at [state citizenship of all parties plaintiff, and of defendants as well, if no separable controversy exists.]16

IV. That there are no other parties in this suit than hereinbefore mentioned [or, that the only other parties to this suit are stating names, and reasons why their presence may be disregarded."]

of

[If suit is by assignee, use assignee clause of Form 456.]

V. That your petitioner has been held to bail herein in the sum dollars [or, has not been held to bail herein, and special bail was not originally requisite herein.]

district of

VI. That your petitioner desires the removal of said suit from the State Court wherein it is now pending to the Circuit Court of the United States for the , and as a ground for such removal respectfully shows to this court that on account of prejudice and local influence in favor of the plaintiff and adverse to your petitioner, he will be unable to obtain justice in said court of the State, or in any other court of said State to which by the laws thereof your petitioner may have recourse. That said prejudice or local influence arises from the following facts [state them or, as shown by the accompanying affidavits of M. N. and O. P., verified the

19 .]

day of

VII. Your petitioner offers herewith his bond, with good and sufficient surety, in the penal sum of dollars, conditioned as by law required.

as plaintiff, can remove only when there is a separable controversy. Cochran r. Montgomery County, 199 U. S. 260 (affirming the doctrine as it has long prevailed in the Eighth Circuit); Anderson r. Bowers, 43 Fed. Rep. 321; Campbell v. Milliken, 119

Fed. Rep. 982; Welden v. Fritzlen, 128 Fed. Rep. 608.

16 All parties plaintiff must be citizens of the State wherein the suit is brought. Wilder . Virginia, etc., Iron Co., 46 Fed. Rep. 676.

17 See note 7 to Form No. 456.

WHEREFORE your petitioner prays that said bond may be accepted and that an order issue removing this case from the

court of the State of States for the

into the Circuit Court of the United

district of

ceedings be had herein in said State court.

[Date.]

[Signature, and address of],

Attorney for petitioner.

[Signature of],

Petitioner.

[Verification as in Form 457.]

FORM No. 459.

Affidavit of prejudice or local influence to support petition for removal.18 [Title of Circuit Court and of cause.]

[Venue.]

W. X., being duly sworn, says [or if more than one, being duly severally sworn, say, each for himself]: that he has reason to believe, and does believe, that from prejudice and local influence the defendant Y. Z. will not be able to obtain justice in the State court in this action by reason of the following facts, [stating facts which sufficiently establish grounds of belief.19]

[Jurat.]

FORM No. 460.

[Signature.]

Bond on asking to remove cause from State to Jnited States court.

Know all men by these presents, that we, M. N., of [principal20], and O. P., of [surety], are hereby held and firmly bound unto [name of adverse party, with designation of character in which he sues if special, for instance, as executor of, etc.], his [or, their] executors, administrators and assigns [or, successors and assigns], in the sum of dollars, lawful money of the United States, to be paid to the said [name], his executors, administrators, or assigns [or, successors or assigns], for which payment, well and truly to be made, we jointly [and severally21]

18 Where the application is made upon affidavit alone, it must conform in all respects to the foregoing petition for removal.

19 An affidavit of a credible person, stating facts upon information and belief, but satisfactorily showing the grounds of that belief, will be sufficient. Detroit v. Detroit City Ry. Co., 54 Fed. Rep. 1. A perfunctory showing, by a formal affidavit of mere belief will not be sufficient, nor (accord

ing to the better authority) will a direct and unequivocal allegation of prejudice be received, if unsupported by facts. In re Pennsylvania, 137

U. S. 451.

20 It is not essential that the petitioner be an obligor. Removal Cases, 100 U. S. 457. One surety, if approved, is sufficient. Id.

21 A joint bond was held sufficient in Mix v. Andes Ins. Co., 74 N. Y. 53, 57, saying, however, that the court

bind ourselves, our heirs, executors and administrators, firmly by

these presents.

WHEREAS [the said] Y. Z. has filed or is about to file in the [title of State court in full], in county, in the State of his petition [and affidavit] for the removal from said court to the Circuit Court of the United States, of a suit now pending in said [state court], in which A. B. is plaintiff and Y. Z. defendant. Now, therefore:

district of

THE CONDITION of this obligation is such that if the said [name of petitioner] shall enter in the Circuit Court of the United States for the on the first day of its next session, a copy of the record in said suit, and shall pay all costs that may be awarded by said Circuit Court of the United States, to said [obligees], or to any of them,22 if said court shall hold that said suit was wrongfully or improperly removed thereto23 [and, if special bail was originally requisite, add, and shall then and there appear and enter special bail in said suit], then this obligation to be void; otherwise of force.

Sealed and delivered

in presence of

[Signature of witness.25]

[Signatures and seals.]

[Acknowledgment as in Form 1, p. 3.]

[Affidavit of sufficiency and approval, as in Forms Nos. 255, 258, on pages 480, 481.]26

[Venue.] I.

FORM No. 461.

Short form of affidavit of sufficiency.27

of said county, the surety named in the foregoing bond, being duly sworn, do depose and say that I am a resident

of the State of

am worth the sum of

,

and a property-holder therein. That I dollars over and above all my debts.

could require it to be joint and ser eral; and in New York State this is now the uniform rule. N. Y. Code Civ. Pro., § 812.

See paragraph 7 on p. 27 of this volume.

22 As to words of several interest, see p. 27 of this volume.

23 This clause as to costs is essential. Sheldrick v. Cockcroft, 27 Fed. Rep. 579.

24 The bond need not be conditioned for the entering of special bail, if the

action be one in which bail could not be required. Erisman v. Pidcock, 62 How. Pr. 327.

25 Not necessary if the bond is aeknowledged.

26 File within the period allowed for filing petition. Austin t. Gagan, 39 Fed. Rep. 626,

27 Given in Dillon's Rem. of C., as the approved form for the Eighth Circuit.

in New York it is better, if not essential for the purpose of applying