Chatham Nat. Bank of N. Y. v. Merchants' National Bank of West Virginia. within the other provisions of congressional legislation on this subject. And it permits that to be done when the defendant states in the petition that a defense exists arising under or by virtue of the constitution or any treaty or law of the United States. From this privilege banking associations organized under the laws of the United States are excluded by an exception contained in the act. 15 U. S. Statutes at Large, 256, 257. But the exception by its terms extends no further than the subject-matter of the act in which it is contained, and consequently can have no effect upon the provision made for the removal of causes in other cases by the preceding law. It simply left these associations unaffected by its provisions, and entitled to the privileges provided in this respect for suitors by other acts of congress. And among them the right of removing the action into the circuit court of the United States, when the circumstances of the case appear to be such as are required to justify that proceeding.

By the act under which the application was made in this case, the petition was required to be filed at the time of entering the defendant's appearance in the action (1 U. S. Statutes at Large, 79, §12), and that, it is claimed, was not done in this case. Other objections of a mere formal nature were relied upon by way of answer to the application. They were predicated upon defects in the copies of the papers served upon the plaintiff's attorneys; but as they did not exist in the papers themselves, on which the application was made, they were very properly disregarded upon the hearing. The more substantial objection was placed upon the circumstance that a notice of the defendant's appearance was served in the action on the 15th day of December, 1873, while the petition itself was not presented until the seventh of the following January; and upon that reason the court denied the application for the removal of the cause, holding that the appearance was entered within the meaning of the terms used in the law at the time when the notice itself was served.

But this was a mistaken view of the provision requiring the petition for the removal of the cause to be filed at the time of entering the defendant's appearance; for the mere notice of appearance was not the entering of an appearance required by the act of congress. That by Rule 7 of this court is something more than the mere service of a notice. It contemplates an act to be performed on the filing of the notice with proof of its service. Upon that being

Chatham Nat. Bank of N. Y. v. Merchants' National Bank of West Virginia.

done, the Rule authorizes the defendant's appearance to be entered as of the time when the notice itself was served. The notice was simply a notice of the defendant's appearance, without an entry of it; and was no more than the notice of retainer, which, under the preceding practice, the defendant was authorized to serve in the action, which was held insufficient to constitute the entry of appearance required by the act of congress providing for the removal of causes into the United States circuit court, on the ground on which the right is claimed in this action. Norton v. Hayes, 4 Denio, 245.

No other act appeared to have been performed on the part of the defendant, before the filing of the petition, from which it could be claimed that an appearance of the defendant had been entered, while the petition contained the statement that it then entered its appearance, and had not done so before; and the order requiring the plaintiff to show cause why the application should not be granted recited the fact that the defendant, on the day of its date, had entered its appearance, and at the same time filed its petition for the removal of the cause, and offered the security required by the act, by a bond then filed; and as there was no contradiction of this statement, it should be accepted as true, as long as the mere service of the notice was not the entry of an appearance. Porter v. Bronson, 20 How. 292; Rugg v. Spencer, 59 Barb. 388.

No appearance appeared by the papers to have been previously entered, and this statement, as well as the other to the same effect contained in the petition, sufficiently showed its entry at the time when the order was made, to constitute a performance of what the act of congress required to be done in that respect.

But if it did not, procuring the order and making the motion were equivalent to the entry of an appearance, within the technical meaning of those terms; for by such acts the defendant of necessity appears in court. They could not be performed without an appearance in court, as well as an appearance in the action. This was substantially held in the case of Ayres v. Western R. R. Co., 48 Barb. 132, where obtaining an order extending the time to answer was considered to be the entry of an appearance, and for that reason sufficient to justify the denial of a motion afterward made for the removal of the cause. See also Cooley v. Lawrence, 12 How. 176.

The provisions of the act of congress were complied with in all

Chatham Nat. Bank of N. Y. v. Merchants' National Bank of West Virginia. other particulars, and an order should therefore have been directed for the removal of the cause. The order appealed from should be reversed, with costs, and an order entered directing the removal of the cause into the circuit court of the United States.

DAVIS, P. J., concurred.

BRADY, J., dissenting. The twelfth section of the judiciary act, which relates to the removal of causes from the State to the federal courts, provides that if the defendant, among other things to be made apparent, "shall, at the time of entering his appearance in such State court, file a petition, etc., it shall then be the duty of the State court to accept the surety and proceed no further in the cause." The right of removal, however, is purely statutory, and when the defendant attempts to exercise it he must show that he has complied with the law in its requirements. He must at the time of entering his appearance, which is the first step, file his petition; and the question which is suggested, in limne, on this appeal, is whether the defendants' appearance was entered, in this action, in the manner provided by the rules and practice of this court. It is not pretended that any thing more was done on that subject than the service of a notice of retainer on behalf of the defendants, and the presentation of the petition containing a statement "that the petitioner does now enter his appearance in this action, but has not done so before." The notice of retainer, however, was not claimed by the defendants to be an appearance. The defendants aver their appearance when the petition was signed or presented, and not before. It is not pretended either that any rule was entered by the defendants on the subject, either on their own behalf, or by the plaintiffs' attorney, under Rule 14 of this court. The appearance of the defendants was not entered, therefore, when the petition was presented. Redmond v. Russell, 12 Johns. 153; Norton v. Hayes, 4 Den. 245; Bristol v. Chapman, 34 How. 141; Field v. Blair, 1 Code R. N. S. 292; Durand v. Hollins, 3 Duer, 686; Cooley v. Lawrence, 5 id. 605. See also Fairchild v. Durand, 8 Abb. 305, note.

In Bristol v. Chapman the defendant went into court at special term, and caused his appearance to be entered in the minutes of the court. The appearance was held to be irregular. The court said, MORGAN, J., delivering the opinion: "The rules of this court VOL. IV, N. Y. REP.-26

Chatham Nat. Bank of N. Y. v. Merchants' National Bank of West Virginia.

have prescribed the manner in which the defendants may appear, and what shall be deemed an appearance. This is by service of notice of retainer, on filing which the defendant may doubtless enter his appearance in the clerk's office, and at the same time file his petition."

In Norton v. Hayes it was held that notice of retainer was not "entering his appearance" within the terms or meaning of the act of congress, but that entering an appearance with the clerk at the time of filing the petition was a compliance, and BEARDSLEY, J., said these being done at one and the same time, the application for the removal was made in due season. The case of Redmond v. Russell, supra, was cited by him to sustain the proposition just stated. In the latter case SPENCER, J., said: "This is not a case in which the comity of the court is to be exercised; if the defendant is not strictly entitled to have his cause removed, we are bound to maintain our jurisdiction. The plaintiff has as strong a claim to have his cause retained here as the defendant can have to remove it. The whole point turns upon the question when did the defendant enter his appearance." The court thereupon declared that the entering an appearance and filing the petition are to be simultaneous

acts.

In Durand v. Collins it was held that the execution of an undertaking upon arrest was not, in theory or in fact, an act done in court; that the party's appearing by the filing of special or common bail, which prevailed prior to the Code, had no application to proceedings under the Code, and that no appearance was formally or actually entered in the action until the defendant entered his appearance with the clerk of the court, which he had done at the time he filed his petition to remove the cause. In Cooley v. Lawrence, the question, What is an appearance in a State court? is considered somewhat elaborately; and it is said that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance; and, further, when such submission has once been made it cannot be retracted. The appearance of the defendant in that case was declared perfected by his submission to the court of a material question upon affidavits and argument, namely, the continuance of an injunction against him.

The result of these considerations is, that in order to enable a defendant to remove his case from this court to the federal court,

Dillon v. People.

he must enter his appearance according to the rules and practice of this court, and at the same time file, or at least present, his petition. The defendants not having entered such an appearance were not regular in their proceeding to remove the cause, and the motion in the court below was properly decided. If the defendants claimed that the service of a notice of retainer was an appearance within the act of congress, under the practice which prevails in this court, then their application was too late, as it was not made until several days after such notice was served. They make no such claim. They insist, on the contrary, as already suggested that it was not an appearance, and rely, therefore, on the incident of the proceeding to remove indicated by the statement "they now enter their appearance" contained in their petition.

ance.

The petition was not, nor was any thing contained in it, an appearance such as contemplated, nor did it amount to an appearIt was of no greater significance than the service of a notice of retainer which, for the general purposes of an action, is, under our Code, a sufficient appearance · or of the execution of an undertaking, which, as we have seen, is not an appearance. It was not entering an appearance, either in theory or in fact, and was, in form, a proceeding unknown, and, by analogy to the case of Bristol v. Chapman, supra, irregular.

It follows, therefore, that the defendants' proceedings were premature, and the order made at special term should be affirmed. Order reversed.

DILLON, plaintiff in error, v. PEOPLE.

Larceny-identification-Evidence - presumption of guilt from possession.

Defendant was indicted for the larceny of a quantity of pig-iron; and the evi dence showed that the iron was found in defendant's possession in a boat, at three o'clock in the morning; that complainant had missed a like quantity of iron which he had had in his possession the day previous; that, on the following afternoon, complainant identified the iron found in defendant's possession. Defendant's statement was that he had bought the iron of a canal boatman for $15, whereas the value of the iron was $50. Held, (1) that the question of the identity of the iron was for the jury; (2) that, under the circumstances, the court properly refused to charge the jury that