the bond contain a condition for the entry of appearance in the Federal court in such a case. The bond must provide for the payment of costs in case of a remand. The bond need not be executed by the petitioner, if it have a principal and a sufficient surety. When the petitioner is named as principal, it seems that it may be executed in his name by his attorney-atlaw.10 It seems that the bond must be sealed by the parties who execute it," but that a scrawl seal without wax, or an impression on the paper, will be sufficient," at least in a State by the law of which such scrawl or impression is equivalent to a seal. A formal defect in the bond may be cured by amendment, with leave of the court, or a new bond may be filed, if leave to do so be obtained.13 It is customary to procure the approval of the bond by the State court. Whether the Federal court has the power to approve the bond after the State court has disapproved it, or to disapprove it after the State court's approval, is unsettled. It has been held that the want of acknowledgment or of proof of the execution of the bond is a matter of practice for the State court to pass upon, and that it will not be reviewed by the Federal court after the State court has accepted the bond.15 Such an objection cannot be raised for the first time in the Supreme Court.16 It has been held

7 Ibid.

8 Sheldrick v. Cockcroft, 27 Fed. R. 579; Webber v. Bishop, 13 Fed. R. 49; Torrey v. Grant L. Works, 14 Blatchf. 269. But see Dennis v. County of Alachua, 3 Woods, 683, 688; Deford v. Mehaffy, 13 Fed. R. 481, and § 373. 9 Stevens v. Richardson, 20 Blatchf. 53; s. C., 9 Fed. R. 191; Public G. & S. Exch. v. W. U. Tel. Co., 16 Fed. R. 289; s. c., 11 Biss. 568; People's Bank of Greenville v. Etna Ins. Co., 53 Fed. R. 161.

113 U. S. 594, 598; Coburn v. Cedar V. L. & C. Co., 25 Fed. R. 791. See infra, § 385d, notes 13, 14, 15; and § 391, notes 39, 40, 41.

14 Compare Osgood v. Chicago, D. & V. R. Co., 6 Biss. 330; Dennis v. County of Alachua, 3 Woods, 683; Cooke v. Seligman, 7 Fed. R. 263; Fisk v. U. P. Ry. Co., 6 Blatchf. 362; Taylor v. Shew, 54 N. Y. 75; Mix v. Andes Ins. Co., 74 N. Y. 53; Stone v. South Carolina, 117 U. S. 430: Carson v. Dunham, 121 U. S. 421; Shedd v.

10 Dennis v. County of Alachua, 3 Fuller, 36 Fed. R. 609; Wilson v. W. Woods, 683, 687.

11 U. S. v. Linn, 15 Pet. 290; Speer on Removal of Causes, p. 119.

12 U. S. v. Stephenson, 1 McLean, 462; Speer on Removal of Causes, p. 119.

13 Dennis v. County of Alachua, 3 Woods, 683, 688; Ayers v. Watson,

U. Tel. Co., 34 Fed. R. 561; Chambers v. McDougal, 42 Fed. R. 694; Brown v. Murray, Nelson & Co., 43 Fed. R. 614.

15 Cooke v. Seligman, 7 Fed. R. 263, 269, per Blatchford, J.

16 Removal Cases, 100 U. S. 457.

that an omission from the bond of a statement of the residence of the surety, and of proof of his sufficiency and the fact that he is an attorney-at-law, who by a rule of the State court is disqualified to act as surety, are objections which can only be raised in the State court, and that the Federal court will not consider them.17

$385c. Proceedings in State court on removal not dependent on prejudice or local influence.- No order of the State court is essential to the removal.1 An order of a State court denying the prayer of a petitioner for a removal has been held to be a breach of judicial comity. An order of a State court granting the prayer for a removal, contained in a petition which sets forth the jurisdictional facts, should not be subsequently set aside by the court that made it. It is the safer practice to present both the petition and the bond to the State court, not merely to file them in the clerk's office. It has been said: "It is the State court which is authorized to act upon the petition, and not a judge or a clerk of the State court." It has been held that when copies of the petition and bond are certified to the Federal court with the rest of the record, in the absence of evidence to the contrary it will be presumed that they were presented to and accepted by the State court. The State court has no power to pass upon questions of fact in the proceedings for a removal.'

§ 385d. Time of removal not dependent on prejudice or local influence.- The petition for a removal and the bond

17 Probst v. Cowen, 91 Fed. R. 929. $385c. 1 Kern v. Huidekoper, 103 U. S. 485; Insurance Co. v. Dunn, 19 Wall. 214.

74 Fed. R. 977. Where the petition was filed in the wrong court the case was remanded. The fact that the removal papers were not marked

2 Chambers v. McDougal, 42 Fed. R. "filed" before they were presented 691-696. to the State court is immaterial.

3 Chamberlain v. American Nat. L. Waite v. Phoenix Ins. Co., 62 Fed. R. Ins. Co., 11 Hun (N. Y.), 370.

Shedd v. Fuller, 36 Fed. R. 609; Roberts v. Chicago, St. P., M. & O. Ry. Co., 45 Fed. R. 433; Fox v. Southern Ry. Co., 80 Fed. R. 945. Contra, Noble v. Massachusetts Ben. Ass'n, 48 Fed. R. 337; Burck v. Taylor, 39 Fed. R. 581; s. c., 152 U. S. 634; Brown v. Murray, Nelson & Co., 43 Fed. R. 614, 616. See La Page v. Day,

769.

5 Williams v. Massachusetts Ben. Ass'n, 47 Fed. R. 533, 534, per Coxe, J.

Chattanooga R. & C. R. Co. v. Cincinnati, O. & T. P. Ry. Co., 44 Fed. R. 456; Probst v. Cowen, 91 Fed. R. 929. 7 Powers v. Ches. & O. Ry. Co., 65 Fed. R. 129; Waite v. Phoenix Ins. Co., 62 Fed. R. 769.

must be filed in cases where there is no prejudice or local influence at or before the time to plead or answer expires. It seems that a case cannot be removed after the time to plead in abatement has expired, although the defendant has further time in which to plead or answer to the merits. Such a removal cannot be made after the time to demur has expired, although a demurrer has been overruled with leave to answer;3 nor after the time to plead has expired, although the defendant has the right to amend as of course within a specified time. It is unsettled whether, if the defendant's time to plead or answer has been extended by consent or order, his time to remove is likewise extended.

ance and pleading by the defendant before the expiration of the time within which he was required by law to plead, does not limit his time to remove the cause. Where he has not been served, and the time to plead is reckoned from the day of service, it begins to run from the date of his appearance. A removal may be made after a motion to take the bill off the file has been denied, after a demurrer has been overruled," and even after answer," provided that the time originally allowed the defendant to plead has not expired.

Where the plaintiff's original pleading did not present a removable case, but an amendment thereto, by omitting some of the original parties," or by a new allegation concerning the value of the matter in dispute," or by showing that the case arises under the Constitution or laws of the United States,13

Fed. R. 497; Winberg v. Berkeley Co. Ry. Ex. Co. (S. D. N. Y.), 29 Fed. R. 721; Rycroft v. Green (E. D. Pa.), 49 Fed. R. 177; Schupper v. Consumers' Cordage Co. (S. D. N. Y.), 72 Fed. R. 803; Mayer v. Ft. Worth & D. C. R. Co. (S. D. N. Y.), 93 Fed. R. 601; Allmark v. Platte S. S. Co. (S. D. N. Y.), 76 Fed. R. 614; Chiatovitch v. Hanchett (D. Nev.), 78 Fed. R. 193; Dancel v. Goodyear Shoe Mach. Co., 106 Fed. R. 551; Sowles v. Witters (D. Vt.), 43 Fed. R. 700; Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. (D. S. C.), 60 Fed. R. 929; People's Bank v. Ætna Ins. Co. (D. S. C.), 53 Fed. R. 161; Tracy v. Morel (D. Nev.), 88 Fed. R. 801; Wedekind v. So. Pac. Co., 36 Fed. R. 279, 281. See also McKeen v. Ives (D. Ind.), 35 Fed. R. 801. Contra: Dixon v. W. U. Tel. Co. (N. D. Col.), 38 Fed. R. 377; Austin v. Gagan (N. D. Cal.), 39 Fed. R. 626, 627; Velie v. Manufacturers' Acc. Ins. Co. (E. D. Wis.), 40 Fed. R. 545; Spangler v. Atchison, T. & S. F. Co. (W. D. Mo.), 42 Fed. R. 305, 306; Ruby C. G. Min. Co. v. Hunter (W. D. S. D.), 60 Fed. R. 305; Rock Island Nat. Bank v. J. S. Keator L. Co. (D. Ill.), 52 Fed. R. 897; Martin v. Carter (D. Mont.), 48 Fed. R. 596; Fox v. South

ern Ry. Co. (D. N. C.), 80 Fed. R. 945. See for dicta tending the same way, Murray v. Holden (W. D. Mo.), 2 Fed. R. 740. See also Del banco v. Single_tary (D. Nev.), 40 Fed. R. 177; Pullman P. C. Co. v. Speck, 113 U. S. 84, 86; Kaitel v. Wylie (N. D. Ill.), 38 Fed. R. 865; Daugherty v. W. U. Tel. Co. (D. Ind.), 61 Fed. R. 138.

6 Conner v. Skagit C. C. Co., 45 Fed. R. 802; Gavin v. Vance, 33 Fed. R. 84; Brisenden v. Chamberlain, 53 Fed. R. 307. But see Delbanco v. Singletary, 40 Fed. R. 177.

7 Fidelity Tr. & S. V. Co. v. Newport N. & R. V. Co., 70 Fed. R. 403; Case v. Olney, 106 Fed. R. 433.

8 Tennessee Coal, L. & T. B. Co. v. Waller, 37 Fed. R. 545.

9 Tennessee Coal, L. & T. B. Co. v. Waller, 37 Fed. R. 545. Contra, Delbanco v. Singletary, 40 Fed. R. 177. 10 Gavin v. Vance, 33 Fed. R. 84,

92. See Burck v. Taylor, 39 Fed. R. 581; Evans v. Dillingham, 43 Fed. R. 177; Conner v. Skagit C. C. Co., 45 Fed. R. 802.

11 Powers v. Ches. & O. Ry. Co., 169 U. S. 92, 99.

12 Huskins v. Cincinnati, N. O. & T. P. Ry. Co., 37 Fed. R. 504.

13 Speckert v. German Nat. Bank,

brings it within the removal act; the time to remove is extended until defendant must plead to the amended pleading. It has been held that the same rule applies where the amendment presents an entirely new case; 14 but not otherwise.15 It has been held that after the time to plead in a removable case has once expired it cannot be extended by an order opening the default and allowing him to plead.16 Where there are two defendants and but one controversy, and the time for removal has expired as to one defendant, it is too late for the other defendant to remove the cause, although he has not been previously served," provided that he was named as a party in the plaintiff's pleading. Where, however, after the expiration of the time of the original defendant, others were brought in by amendment, they were allowed to remove because of a Federal question that appeared in the plaintiff's original pleadings.18 The filing of a pleading in the State court by the defendant is not a necessary prequisite or accompaniment to the petition for a removal.19 The bond must be filed with the petition, and cannot be filed subsequently nunc pro tunc,20 although it may be subsequently amended as to a matter of form, but not as

85 Fed. R. 12; Bailey v. Mosher, 95 Fed. R. 223; Guarantee Co. v. Hanway (C. C. A.), 104 Fed. R. 369.

14 Evans v. Dillingham, 43 Fed. R. 177, 180; Matton v. Reynolds, 62 Fed. R. 417; Mecke v. Valleytown Mineral Co., 89 Fed. R. 209.

15 Painter v. New R. M. Co., 98 Fed. R. 544; Kaitel v. Wylie, 38 Fed. R. 865; Gregory v. Boston S. D. & Tr. Co., 88 Fed. R. 3. Contra, Daniel v. Goodyear S. M. Co., S. D. N. Y., per Lacombe, J., 106 Fed. R. 551.

16 Rock Island Bank v. J. S. Keator L. Co., 52 Fed. R. 897; Hurd v. Gere, 38 Fed. R. 537. Held contra, in S. D. N. Y., where, when the default was made, no complaint had been served. Daniel v. Goodyear Shoe Mach. Co., 106 Fed. R. 551. The omission to enter judgment by default does not extend the time. Kansas City, F. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 303. Even where there was an oral understanding that no default should be

taken. Price v. Lehigh Val. R. Co., 65 Fed. R. 825. The fact that the defendant's attorney was prevented by inevitable accident from filing the petition will not enlarge the time. Daugherty v. W. U. Tel Co., 61 Fed. R. 138.

17 Fletcher v. Hamlet, 116 U. S. 408; Houston & T. C. Ry. Co. v. Shirley, 111 U. S. 358; Hakes v. Burns, 40 Fed. R. 33. But see Mutual L. Ins. Co. v. Champlin, 21 Fed. R. 85.

18 Green v. Valley, 101 Fed. R. 882. Where a case is not removable until after an amendment. the time expires when the defendant is required to plead to the amended pleading, unless, perhaps, such time is unreasonably short. Enders v. L. E. & W. R. Co., 101 Fed. R. 202.

19 Egan v. Chicago, M. & St. P. Ry. Co., 53 Fed. R. 675.

20 Austin v. Gagan, 39 Fed. R. 626; Kaitel v. Wylie, 38 Fed. R. 865. 21 Harris v. Delaware, L. & W. R.