82
FEDERAL REPORTER.
account of such prejudice or local intluenc1e, to remove said cause. Deponent further deposes that the facts,IltQ,ted in the foregoing petition for removal by the said Richmond &; Dan ville Railroad Company are true." A bond was also filed, in'accordancEl'with the law. ,The order of the judge of the superior court was as follows: " ,','Uponconsidering the foregoing bond, and affidavit, it is ordered that the bond be acceptedaJ;ld,approved, and that this COUl:tproceed no fur'ther i'D'this case. It is further ordered that'the clerk of this 'court make out and of all processes, pleadings, a complete transcript ofWereeord of this depositions, testimony, a"d ;Qt,het proceedings therein ,had, ,and furnish the same t<> the petitioner, the nichmond, & Danville ,Railro8.d Company, or its counsel, in order that the same maybe filed in the circuit court of the United States for the Northern district of Georgia." The record was filed ill 'this court September 26,1887, and a motion is now made to remand the case to the state court.' 'The motion to re'mand is basea on the ground that under, the act of March 3, 1887, (24 St. at Large, 552,) it is now necessary, even as to a defendant seeking a Temoval, to make astrohger' case before this court' to justify retaining 'been neces$ary under the original act of jUrisdiction than would f1867,(Rev.St. U. 639;'subsec. 3.) In other words, that thelanguage it shaUbemadeto appear to said .circuit court that frompreju'dice or, localinfluenc,e llot be able to''obtaiiijustitJe "in such state <iourt,or in any other statecourt to which the said defendant may, under the laws, dfthe state; have a right, on accotl,nt' of such prejudice or local influence, said case," (A:ct MarcIl '3, 1887, § 2,) Wl\S intended to tiliange the laW' andpracticejaB' it r,emoval 'by affidavit of the 'party; 'Before the passage of'the last-named act, 'the law in terms autho!ized the removal upon the affidavit of either party has to, that from'prej-qdice or Ioqali;hfluence,:hew':ill npt be!1l;>le to 09talQ jUstice 'in, said\ltate 2 i of the act of,March 3, 18,87, as to court.'" The: latt!3fpart of removals by ,plaintiffs account of prejudice ,or local jnfluence, is in the following language: ' ' before the'trlW6t any whicl{t{n,dW pending in 'any cir<luit coilrt, or mar her'eafter'Jje"entered il;nd which hlLs been, removed tp $aid court' fr9Pl a statecpurt the affidavit that he had reasonto biM'eve,alld didWlieve. that from PNjulHce ;he unableto obtaIn justice in, said state courts'h'all, on of party; into the trl1th, bf'tbe' affidavit. and the ¥.rounds therepfi' and" un1e&s itshall'appl'ar totlielatisfaction' of the said 'chiIrt that MWIlar,tr will to obtain in, such state court, it shall cause temaI1q.ed thereto." ',;;: This in terms makes it the duty of theeou1!t,ointhe case ofa removal "bya plaintiff; ,on "the application hf .the other'party' toexltmine into the 81ldthe grQunds But no ,such proJoa 'flJ,Serei;noveQ, by a defcllHa:J;it. Is clear.from ,this that it.w:&.'3 to, establish a, djfferent rule as to removing cuses to this court from that of plaintiffs. And the reason for a different rule is apparent: The plaintiff, in a in
on
HILlS,
v.
RICHMOND & D .. R. CO.
83
the state court, has gone there voluntarily, whereas the defendant has been taken there against his will; certainly without his consent. The law, therefore, very properly places more restrictions around the right to remove in the former than in the latter case. It will also be seen that, even as to plaintiffs, the right to remove by affidavit, as formerly practiced, still exists, subject to an exami.nation by this court, after the case reaches it, as to sufficiency of the grounds of removal. Now, what is required of a defendant seeking a removal under the act of 1887? An examination of that act will show that the act of 1867 (subsection 3, Rev. St. U. S. § 639) is not expresslyrepealed. It is still in force, therefore, except in so far as it is repealed by necessary implication.' is the language "shall be made to appear to said circuit court," sufficient to indicate an intention to change the rule as it existed under the original act of removal, by .affidavit of the party? Is it not, rather, a proper construction to hold that the two acts should be read and construed together, and that so read and construed, the law now is that it shall be made to ,appear to this court by the affidavit of the defendant that he hasreason to believe, etc.?'-thisaffidavit to state, of course, in addition to wb'at'would have been necessary under the old act, "that he will not be able to obtain justice in any other state court to which the defendant, under the laws of 8uchstate, had the right, on account of such prejudice or local influence, to remove said case." It seems to me that the latter view is the only one that can be adopted, if proper construction be given to all the legislation, as it now stands, on this subject. Again, the express provision in the act of March 3, 1887, as to the duty of this court to examine into the,sufficiency of the grounds for removal, in the case of a plaintiffremoving his case here, and the absence of any such provision as to a defendant so removing, seems to be significant of the fact that the ,law as it formerly existed is not changed as to defendants. It was suggeSted and argued by counsel for plaintiff, that the application of defendant to remove this case should have been made originally to this court. Finding the case in this court, removed here by an order of the judge of the state court, it seems to me unnecessary to consider this question. I determine, w'hether or not, finding the case here, I should retain jurisdiction. I think the court should retain jurisdiction for the reasons I have stated, and therefore the motion to remand is denied. After writing the foregoing opinion, and before filing it, I have received the Federal Reporter of November 29, 1887, and I find therein (volume 32;.p. 417) an opinion in the case of Fisk v. Henarie, from the circuit courl in Oregon, rendered by Judge DEADY, in which he reaches the same conclusion as to the proper construction of that part of the act of 1887 under consideration, that I have announced above. I am gratified to have the concurrence of this learned judge in the view I have taken oHhis newlaw.
84
GAVIN V. VANCE.
(Oircuit Oourt,
w: lJ.Tenneasee.
December 24, 1887.)
In Equity. Motion to remand. H. C. Warinner, for the motion.
C. F. Vance, contra. HAMMOND, J. Since the argument of this motion, counsel for the plaintiff has suggested an additional ground for remanding the case, which will be first considered. Hecites'the case of Yuba Co. v. Mining 00.,32 Fed. Rep. 183, and insists that, under the new act of congress of March 3, 1887, (24 St. 552,) this court conldhave had no original jurisdiction of this case, because the defendant Vance, not being an inhabitant of this district, could not have been sued here; and, such being the fact, that the cause cannot be removed under the second section of the new act, which confines the right of removal to those cases of which this court could have acquired original jurisdiction under the first section of the act. The case cited seems to hold this, unless there be a distinction between corTlorations and natural persons in relation to this jurisdiction, that being