\",860
FEDElU.L REFORTERi'v.ol.
62.
on the question ·.' In that case was that the clause here relIed otflis ('ali independent temporary provision, intended to apply to:suits which had then been :removed" under a former act, and "has no application to a removal had under the act, and which did not take place before the passage of the same," under the act in force gave the right of removal T9. tlle plaintiff. Fiskv;lIenarie, 32. Fed. 417. Independently of the. weight of this construction, seems tome to be clearly correct The clause, in question otherwise would serve no pur· posE;', H. cannot be intenqed to give jurisdiction to e;amine into the grou:nds on which the allegations of the founded, for the reason that it would thus, by implication, restrict the power of the court to inquire into the grounds of the petition to cases in which the plaintiff: had removed the! c1wse. Such a construction, being a derogationof;the right to ·inquire into the substance of an allegation, should be adopted only.in case of absolute necessity. The interpretation of the words by Judge Deady shows that here is n. .. . f1Cli;ssity", T.h., p.ower .1.O in.qui.re ,into them,erits of the . ..... under the' act ,now in;force by virtue court, 9p,proper appJieation or plead· anil not curtaUe4, bY"the proviso that the cause in ,prope:1' as' to defendants, not: affected by local influence; rrhe:: RetltiQner cites .of aills· Y., .Raill'oad 00., 33 ,Fed. 81, in it..is said a\3 to }?laintiffs, the right. to remove ,as fo.rmerly. This case, howdeCIde but rather assumes that it therEmnder for pUl'poses of com· the prilctwe ill case of removal by a defendant.· The' petittob. be denied and dismissed. COLLINS v. CA?!,{P.BELL.
(Circuit Court:;· 'X>:, Rhode ,: No. 2,506.
August 3, 1894.) AJ·
REMOVAL · 0,. CAUSEB-LocAL PREJUDICE -' SUFFICIENCY 01' PETITtON AND ll'IDAVI'i.'. . . , "
ltlgndt Bufficient toinerely allege in tpe petition and, affidavit that petitiolier "has reason to 'believe, and does believe," that, from prejUdice and local influence, he will be unable to obtain justice in the state courts. The of pl'ejudilJeand local Intiuence must be alleged as matter of ShoJ1t. v. RailwIlYCo., 33 Fed; 114, followed.
This tasan'llction at law, brought in a state eourt by John E. Collins against Edward T.Campbell. Defend'aDt petitioned for a remoyml,C!>f·the cause to' thls court, on the ground of prejudice and local influeiice. ' Denison, petitioner. OARPENTER, 'Disb'lct· J:ndge. .This lsi,a petition by the defend· ant, in an a.ction at law now pending in' the common pleas division
THE LINDRUP.
851
of the supreme court of Rhode Island, to remove the Mme' into this court. The petition alleges that the plaintiff, at the beginning of the suit, was, and still is, a citizen of the state of Rhode Island, and that the defendant and petitioner here, at the beginning of the suit, was, and still is, a citizen of the state of Maine, and further alleges that he has filed an affidavit from which he asks the court to find that, from prejudice and local influence, the petitioner will not be able to obtain justice in the said state court, or in any other state court to which he may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause. The petition is accompanied by the affidavit of the petitioner's counsel that the statements and allegations of the petition are true, as he verily believes, and by the affidavit of the I'ditionerthat he has reason to believe, and does believe, that, from prejudice and local influence, he will not be able to obtain justice in the state court. On this petition a citation to show cause was issued and served. The plaintiff has made no appearance. The question which arises is as to the sufficiency of this petition to remove the cause. It may perhaps be taken as well settled for the. present that the petition and affidavit need not set out the facts apdcircumstance.s from which the existence of the prejudice may be' inferred, or on which the belief in the existence of the prejudice is founded (Fisk v. Henarie, 32 Fed. 417; Short v. Rl;l.i1way 00., 33 Fed. 114); but upon the question whether the existence of the prejudice must be alleged as matter of fact I agree with the opinion in Short v. Railway Co., rather than with that in Fisk Henarie. Indeed, in the latter-named case the distinction here adverted to does not seem to have been suggested to the court in argument. The opinion says that "it is sufficient that they have. made oath that they so believe, without setting forth the facts or circumstances on which such belief is founded." The stress of the question seems to have been whether a general allegation be sufficient, and not as to the proper and necessary form of that general allegation. On the other hand, in the case decided by Mr. Justice Brewer (then circuit judge) the question of the form of the averment came up for decision, and it is therein plainly pointed out, as it seems to me, that, in the absence of a specifio averment of the prejudice, there is no evidence whatever in the papers to bring the case within the act providing for removal. In other words, it does not appear on the face of these papers that there is any case for removal. The petition will therefore be denied and dismissed.
v.
THE LINDRUP. INMAN v. THE LINDRUP. (District Court, D. Minnesota, Fifth Division. August 14, 1894.) JURISDICTlQN OF FEDEUAL COURTS-WATERS OF LAKE SUPERIOR-SEIZURE OP VESSEL. .
The marshal' of the district court for the district of Minnesota has au.thority, . under proper pl'Ocess. to arrest a vessel on; the open waters of