of Congress, sued because of acts done in the discharge of their official duty,20 or cases where the defense depends upon the civil rights laws,21 shall be to the next District Court, to be held in the district where the suit is pending. It has been held: that, in the case of prosecutions against revenue officers, this direction is not mandatory; that the petition may be filed in any Fedéral Court within the district; 22 that it need not then be filed at the place where the next session of such District Court is held after the indictment, where there are several places for holding that court within the district; 23 that a petition and an order for a removal, because of difference of citizenship, into the District Court for another district than that where the case is pending, although such district is in the same State, are void; 24 that where the petition prayed for a removal to a division of the district which did not exist, but correctly designated the city where the court in one of the divisions thereof was held, the defect was immaterial and would be disregarded; 25 and that a prayer for a removal to the District instead of the Circuit Court of the United States, for the proper district might be cured by an amendment.26 § 544a. Notice of application for removal. The requirement of notice was first made by the Act of 1887. Its absence is fatal to the removal, if objection upon this ground is duly made. Service of the petition alone is insuf 20 Ibid., re-enacting 18 St. at L., p. 401. 21 Ibid., § 31, re-enacting U. S. R. S., § 641. 22 Virginia v. Felts, 133 Fed. 85. 23 Virginia v. Felts, 133 Fed. 85. 24 Ex parte State Ins. Co. of Missouri, 18 Wall. 417, 21 L. ed. 904; Ex parte Groom, 40 Alabama 731. 25 Hodge v. Chicago & A. Ry. Co., 121 Fed. 48, 57 C. C. A. 388. 26 Hadfield v. N. W. Life Assur. Co., 105 Fed. 530. § 544a. 1 Wanner v. Bissinger & Co., 210 Fed. 96. 2 Goins v. Southern Pac. Co., 158 Fed. 434; Arthur v. Maryland Casualty Co., 216 Fed. 386; Goins v. and bond Southern Pac. Co., 198 Fed. 432, if plaintiff intends to assert, as would seem to be implied by his argument, that by this new requirement Congress intended to work so radical a change in the effect of removal proceedings as vesting in the state, instead of the federal, courts the power to pass upon the sufficiency of such proceedings, to this I am equally unable to assent, since the provisions of the act in other respects, in the light of established principles of construction, do not sustain any such theory. Moreover, it is at variance with the rule of construction provided by the Code itself (section 294) for the interpretation of its provisions. But I do not deem it at all needful to ascribe to Congress the intention to bring about a change in the established procedure so fundamental as that suggested, in order that we may perceive a sufficiently valuable purpose to be subserved by the requirement. The right of removal is justly regarded as one of great moment to the suitor, and its exercise not infrequently involves important changes in the aspects if not the results, of the controversy; and the history of many cases involving the right tends to disclose the great desirability, if not the necessity, in order to fully protect the rights of the adverse party, by avoiding expensive and unseemly delays and other inconveniences of a more or less serious nature that some notice of the proceeding be had... Without the effect of materially changing the method of procedure, it will tend to protect the parties and the courts. as well, not alone against mistakes and delays in proceedings genuinely instituted, but against unwarranted and frivolous attempts to exercise the privilege in instances where no real right exists. And, speaking in a general way, I entertain little doubt that it was for reasons such as indicated in the class of cases referred to that the requirement of notice has been prescribed. This view, however, does not aid defendant's position. Defendant relies solely upon cases to the effect that, the cause being one within the jurisdiction of the court, errors or irregularities in merely formal matters, directly in nature and not involving the substance of the right, will be overlooked or allowed to be corrected by amendment, and that the court will not for such a lapse remand the cause. Deford et al. v. Mehaffy (C. C.), 14 Fed. 381; Bryant Bros. v. Robinson, 149 Fed. 321, 79 C. C. A. 259; Northern Pacific T. Co. v. Lowenberg (C. C.), 18 Fed. 339; Woolridge v. McKenna (C.C.), 8 Fed. 650. These cases do not meet defendant's necessities, for such is not this case. It it were a question of the formal sufficiency of a notice actually given, those cases would present some analogy; but it is an instance where a plain and unequivocal requirement of the statute has been wholly ignored, and it is now too late to supply the omission by amendment. The right of removal is purely statutory, and it has always been required that the statute be complied with in its substance. Can it be said that notice, prescribed as the initial step in the proceeding, is not of the substance? It matters not in such a case that the requirement be one not intended jurisdictional in the extreme sense that it may not be waived. It has not here been waived, and must, I am satisfied, be considered as ficient. An omission to give notice may be waived. An appear ance of the plaintiff by counsel upon the application in the State court is such a waiver.5 A notice was sustained which failed to state the hour and place of the application.6 If the State court is satisfied that the notice was sufficient, the Federal court will rarely remand because of an irregularity or defect therein." § 545. Petition for removal in ordinary cases. The petition should be addressed to the State court, not to a judge thereof,1 state the facts which justify the removal, and give jurisdiction to the District Court of the United States.2 It has been said that these facts must be stated positively; not on information and belief; and specifically. as sufficiently of the substance that 198 Fed. 305. 3 Loland v. Northwest Stevedore Co., 209 Fed. 626. 4 Goins v. Southern Pac. Co., 198 Fed. 432, 434, quoted supra; Lewis v. Erie R. Co., 257 Fed. 868. 5 Lewis et al. v. Erie R. Co. et al., 257 Fed. 868. 3 Allegations 6 Hinman v. Barrett, 244 Fed. 621. It was held that a notice was sufficient when served on March 28, stating that the petition and bond would be filed on or before April 2. Cropsey v. Sun Printing & Publishing Ass'n, 215 Fed. 132; and that so was one which stated that it will be made with justice of a specified court immediately, Potter v. General Baking Co., 213 Fed. 697. 7 Chase v. Erhardt, 198 Fed. 305; Cropsey v. Sun Printing & Pub. lishing Ass'n, 215 Fed. 132. § 545. 1 Bigson v. North River Ins. Co., 184 Fed. 165; Higson v. North River Ins. Co., 184 Fed. 165. 2 Railway Co. v. Ramsey, 22 Wall. 322, 328, 22 L. ed. 823, 824; Grace v. Am. C. Ins. Co., 109 U. S. 278, 27 L. ed. 932; Fife v. Whittell, 102 Fed. 537. 3 Wolff v. Archibald, 14 Fed. 369. Contra, Carlisle v. Sunset Tel. & T. Co., 116 Fed. 986; N. Y. & T. Land Co. v. Martin (Texas), 25 S. W. 475. 4 Gold W. & W. Co. v. Keyes, 96 upon inferences will be disregarded. A general allegation in the language of the statute is insufficient.6 It is the safer practice to state, in the petition, that the time has not arrived at which defendant must answer or plead; 7 but it seems that a general allegation, in the language of the statute, is a sufficient averment of this matter.8 It is the safer practice specifically to state, in the petition, that there is a controversy between the parties; and in that case, the petition need not be accompanied by any pleading.9 An averment in the petition for the removal: that the "matter and amount in dispute" exceeds two thousand dollars is sufficient to show that a "controversy exists."' 10 The petition should show that the Federal court could take jurisdiction of the case after the removal unless this appears on the record.11 It is the safer practice to allege the facts which establish that the defendant has been duly served with process or has made a general appearance in the action.12 The petition need not state that the petitioner has a just cause or a just defense and intends to prosecute the same.13 In Iowa, it was held that the petition must show that defendants had a defense to the action, U, S. 199, 24 L. ed. 656; Grace v. 5 Dodd v. Louisville Bridge Co., 130 Fed. 186, 193; where, after allegations that did not show a difference of citizenship, the petition continued: "Your petitioner therefore avers that, in respect to the obligations said to be enforced by this suit, your petitioner is a citizen of the State of Indiana and no other State." Missouri, K. & T. Ry. Co. v. Chappell, 206 Fed. 688. 6 Gold W. & W. Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; Grace v. Am. C. Ins. Co., 109 U S. 278, 27 L. ed. 932; Carson v. Dunham, 121 U. S. 421, 30 L. ed. 992; Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. ed. 132; Smith v. Hor ton, 7 Fed. 270; Jones v. Adams Express Co., 129 Fed. 618; Lalor v. Dunning (New York), 56 How. Prac. 209; Pacific Express Co. v. Needham (Texas), 94 S. W. 1070. 7 Remington v. Central Pacific R. R. Co., 198 U. S. 95, 99, 49 L. ed. 959, 963; Aldrich v. Crouch, 10 Fed. 305 (11 Biss. 180); Waverly Stone & G. Co. v. Waterloo, C. F. & N. Ry. Co., 237 Fed. 561. 8 Remington v. Central Pacific R. R. Co., 198 U. S. 95, 99, 49 L. ed. 959, 963. 9 Wilcoxen v. Chicago, B. & Q. R. Co., 116 Fed. 444. 10 Egan v. Chicago, M. & St. P. R. Co., 53 Fed. 675. 11 Nickels v. Pullman Co., 268 Fed. 610. 12 Ibid. See infra, § 555. 13 Chase v. Erhardt, 188 Fed. 305. and that they had pleaded or answered therein.14 It has been said that the petition must aver that the suit was duly filed in the State court.15 An omission from the petition of a jurisdictional fact will be cured, if this appears in an accompanying affidavit, 16 or in the record in the State court.17 An allegation in an amended complaint, filed after a remand, does not cure a defect in the orig inal petition.18 A conditional application, in which the petition requests a removal, in case a pending motion should be denied or a plea in abatement not sustained, is bad.19 A petition is not fatally defective when it contains the jurisdictional allegations, but refers in its prayer to a wrong statute,2 20 14 Stanbrough v. Griffin, 52 Iowa 112, 2 N. W. 1011; Bosler v. Booge, 54 Iowa 251, 6 N. W. 301. 15 Wilson v. Giberson, 124 Fed. 701. 16 Yulee v. Vose, 99 U. S. 539, 25 L. ed. 355; Bixby v. Blair, 56 Iowa 416, 9 N. W. 318. 17 Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 92, 101, 42 L. ed. 673, 676; Remington v. Central Pacific R. R. Co., 198 U. S. 95, 99, 49 L. ed. 959, 963; Chambers v. McDougal, 42 Fed. 694; Shattuck v. North British & Mercantile Ins. Co., 58 Fed. 609, 7 C. C. A. 386, 19 U. S. App. 215; Jumeau v. Brooks, 109 Fed. 353, 48 C. C. A. 397; Wells v. Russellville Anthracite Coal Mining Co., 206 Fed. 528; Vestal v. Ducktown Sulphur, Copper & Iron Co., 210 Fed. 375; Hayes v. Todd, 34 Fla. 233, 15 So. 752; Goodsell v. Delta & Pine Land Co., 72 Miss. 580, 18 So. 452; Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co., 17 W. Va. 812. Contra, Sherman v. Windsor Mfg. Co., 11 Fed. 852 (19 Blatchf. 314). But see Woolridge V. McKenna, 8 Fed. 650; Craswell v. Belanger, 56 Fed. 18 Jones v. Mosher, 107 Fed. 561, 19 Manning v. Amy, 140 U. S. 137, 35 L. ed. 386. 20 Removal Cases; Meyer v. Delaware R. R. Construction Co.,, 100 U. S. 457, 25 L. ed. 593; Canal & C. Sts. R. Co. v. Hart, 114 U. S. 654, 5 Sup. Ct. 1127, 29 L. ed. 226; Norris v. Mineral Point Tunnel, 7 Fed. 272 (19 Blatchf. 201); Stanley v. Chicago, R. I. & P. R. Co., 62 Mo. 508; Dart v. Walker (New York) 4 Daly 188. Where the petition prayed for removal to a division of the district, which did not exist, but correctly designated the city where the court in one of the divisions was held; it was held that the defect was immaterial and |