general principles there would seem to be no reason why a defendant who is sued by an alien in a State Court of a district in which he does not live, should not have the right to remove his case to the Federal Court. There are decisions that he may. Most of the cases, however, take the other view, on the ground that as the alien could not have sued the defendant in the United States Court of any other district than that in which the defendant lived and could not therefore have sued originally in the United States Court to which removal is sought, the defendant may not remove it there. The whole question is elaborately discussed in Western Union Telegraph Co. vs. Louisville & N. R. Co.1

306. Right of Removal of Cases Involving Separable Controversies.-The general purpose of the removal statutes, as has already been pointed out, is to put the defendant on an equal footing with the plaintiff as to the choice of Courts. This result is, by no means, as fully attained in practice now as it was before the Acts of 1887 and 1888. Nevertheless, that is the theory which underlies all the provisions for removals. We have already seen that a plaintiff, if he wishes to bring his suit in the Federal Court, may avoid ousting the jurisdiction of the Court by refusing to join as defendants those who, under the ordinary equity rule, would be necessary parties, but who, from the standpoint of absolute justice, are not strictly indispensable.

307.

Do.-Under Acts of July 27, 1866.—While from a relatively early period it was recognized that the plaintiff might do so, it was not until the Act of July 27, 1866,1 that a corresponding privilege was given to the defendant. Before that time, a suit could be removed only in the event that every party plaintiff to it, as originally brought, was a citizen of a different State from any of the defendants. By that Act it was provided that if the suit, so far as it relates to a defendant who is a citizen of a State other than that in which it.

1201 Fed. 939. 114 Stat. 306.

is brought, is such that there can be a final determination of the controversy, so far as it concerns him, without the presence of the other defendants as parties in the cause, he should have the right to remove. It was held that under the Act what was removed to the Federal Court was only such part of the dispute as concerned the particular defendant who had applied for the removal.

After its amendment the Supreme Court said:

"Much confusion and embarrassment, as well as increase in the cost of litigation, had been found to result from the provision in the former Act permitting the separation of controversies arising in a suit, removing some to the Federal court, and leaving others in the State court for determination. It was often convenient to embrace in one suit all the controversies which were so far connected by their circumstances as to make all who sue, or are sued, proper, though not indispensable, parties. Rather than split up such a suit between courts of different jurisdictions, Congress determined that the removal of the separable controversy to which the judicial power of the United States was, by the Constitution, expressly extended, should operate to transfer the whole suit to the Federal Court."2

308. Do.-Under Act of March 3, 1875.-The determination alluded to by the Supreme Court was evidenced by the Act of 1875, which contained the language now found in section 28 of the Judicial Code.

309.

Do.-Whole Case Now Removed.-The Act of 1875 came before the Supreme Court in the case of Barney vs. Latham, already cited. That suit had been brought in a State Court of Minnesota by plaintiffs who were citizens respectively of Minnesota and Indiana. There were in all ten defendants. Nine of them were individual citizens of different States other than Minnesota or Indiana. The tenth was a Minnesota corporation The individual defendants sought to remove the case to the United States Court. The removal was made and a petition to remand was denied.

The Supreme Court held that there was a controversy which could be decided between the individual plaintiffs and the individual defendants, and that therefore the latter had the right to remove the case, but the effect of such removal was to carry over the entire cause, including such part of the controversy as concerned the Minnesota corporation only.1

310. Do.-Right of Removal Restricted by Construction. The Federal Courts have by construction, restricted rather than enlarged the classes of cases in which the right of removal can be exercised on the ground that there is a separable controversy. Since the passage of the Act of 1887, they have steadily sought to limit rather than to extend their jurisdiction. The separable controversy must be one which is wholly between citizens of different States. If an alien is a party the case is not removable.1

311. Do. What Controversies Are Separable.The Supreme Court has said "a separate and distinct cause of action, on which a separate and distinct suit might properly bave been brought and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different States from those on the other," is a separable controversy and nothing else is. "To say the least, the case must be one capable of separation into parts, so that, in one of the parts, a controversy will be presented with citizens of one or more States on one side and citizens of other States on the other, which can be fully determined without the presence of any of the other parties to the suit as it has been begun."

991

An example of a case held to include a separable controversy was where stockholders of a corporation brought suit against it and its directors and also against another corpo

'Connell vs. Smiley, 156 U. S. 336.

1

1 King vs. Cornell, 106 U. S. 395; Creagh vs. Equitable Life Assur. Soc., 88 Fed. 1.

ration to whom it had conveyed its property. The bill sought to set aside the conveyance as ultra vires and as in fraud of complainant's rights and to compel the directors to respond in damages. It was held that the latter were not necessary parties to the relief sought against the corporations. The controversy as to them was separable. They had a right to remove.2

312. Do.-Existence of Separable Controversy Must Be Shown By Plaintiff's Statement of His Own Case.A controversy is not separable unless it appears so to be from the plaintiff's own allegations. The rule here is the same as it is with reference to the existence of a Federal question.1 It has one necessary qualification. As the plaintiff in bringing an action in a State Court is not required to allege the citizenship of either himself or the defendant, and usually does not do so, the fact of diverse citizenship may be set up by the defendant in his petition for removal. In all other respects, however, the rule is strictly enforced.

313. Right of Removal Because of Prejudice or Local Influence.-Section 28 of the Judicial Code makes provision for removal under still other conditions. It declares that

"where a suit is now pending, or may hereafter be brought, in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the District Court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said District Court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause.'

Geer vs. Mathieson Alkali Works, 190 U. S. 428.

1 Ayres vs. Wiswall, 112 U. S. 187.

To be removable under this section the case must be one which originally could have been instituted in a Federal Court. 1

314. Do.-A Case Which Could Not Have Been Brought in a Federal Court May Not Be Removed Thereto on the Ground of Prejudice and Local Influence. It has been held1 that a case may be removed on the ground of prejudice or local influence, although it was a case which could not have been brought originally in the United States Court, as, for example, where citizens of the same State were on opposite sides of the controversy. This view, however, has been definitely determined to be unsound. The Supreme Court has said that the clause of the statute permitting removal on the ground of prejudice and local influence does not furnish a separate and independent ground of Federal jurisdiction, but describes only a special case comprised in the preceding clauses. 2

315. Right of Removal of Cases Between Parties Claiming Lands Under Grants of Different States.Provision is made by section 30 of the Judicial Code for the removal of cases in which plaintiff and defendants though both citizens of the same State, are claiming lands under grants of different States. Such a case may doubtless still sometimes arise, but not very often.

316. Right of Removal Because of Denial of Equal Civil Rights.-Section 21 of the Judicial Code provides for the removal of any civil suit or criminal prosecution commenced in a State Court against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States or of all persons within the jurisdiction of the United States.

1 Cochran vs. Montgomery County, 199 U. S. 260.

1

1 Boatmen's Bank vs. Fritzlen, 135 Fed. 650.

2 Cochran vs. Montgomery County, 199 U. S. 260.