will try the cause, is a member of the community where the prejudice or local influence exists.23 The removal may be had at any time before the trial of the suit in the State court.24 What constitutes a trial has been previously explained.25 The petition and other motion papers upon a removal for prejudice or local influence must be presented to the Federal court and filed in the clerk's office of the same.26 It is the better practice to file also a certified copy thereof in the office of the clerk of the State court.27 The motion papers must contain, in a verified petition or an affidavit, a statement of the facts which shows that the prejudice or local influence exists. A statement in the language of the statute is insufficient.28 "The amount and manner of proof required in each case must be left to the discretion of the court itself."' 29 An affidavit containing nothing but general allegations, in the language of the statute has been held to be insuf 23 Montgomery County v. Cochran, 116 Fed. 985, 1001; reversed on another point, Cochran v. Montgomery County, 199 U. S. 260, 50 L. ed. 182. See also Detroit v. Detroit City Ry. Co., 54 Fed. 1, 19. 24 25 St. at L. 433, § 2. 25 Supra, § 543. 26 City of Bellaire v. Baltimore & O. R. Co., 146 U. S. 117, 13 Sup. Ct. 16, 36 L. ed. 910; Malone v. Richmond & D. R. Co., 35 Fed. 625, 628; Kaitel v. Wylie, 38 Fed. 865; Bonner v. Meikle, 77 Fed. 485; Rome & C. Const. Co. v. Smith, 84 Ga. 238, 10 S. E. 728; Mason v. Interstate Consol. St. Ry. Co., 170 Massachusetts 382, 49 N. E. 645; Blackwell v. Lynchburg & D. R. Co., 107 N. C. 217, 12 S. E. 133; Baird v. Richmond & D. R. Co., 113 N. C. 603, 18 S. E. 698; Williams V. Southern Bell Telephone & Telegraph Co., 116 N. C. 558, 21 S. E. 298. Contra, Short v. Chicago, M. & St. P. Ry. Co., 33 Fed. 114; Id., 34 Fed. 225 (holding that the affidavit may be filed in the State court and a certified copy in the Circuit Court of the United States). 27 Short v. Chicago, M. & St. P. Ry. Co., 33 Fed. 114; Baird v. Richmond & D. R. Co., 113 N. C. 603, 18 S. E. 698. 28 Re Pennsylvania Co., 137 U. S. 451, 34 L. ed. 738; Short v. Chicago, M. & St. P. Ry. Co., 33 Fed. 114; Id., 34 Fed. 225; Malone v. Richmond & D. R. Co., 35 Fed. 625; Goldworthy v. Chicago, M. & St. P. R. Co., 38 Fed. 769; Amy v. Manning, 38 Fed. 536; s. c., 38 Fed. 868; Hakes v. Burns, 40 Fed. 33; Minnick v. Union Ins. Co., 40 Fed. 369; Hall v. Chattanooga Agricultural Works, 48 Fed. 599; P. Schwenk & Co. v. Strang, C. C. A., 59 Fed. 209; Collins v. Campbell, 62 Fed. 850. 29 Re Pennsylvania Co., 137 U. S. 451, 457, 34 L. ed. 738, 741. ficient.30 An affidavit was held to be sufficient, which averred the prejudice and local influence positively, and then alleged upon information and belief the facts which were evidence thereof.31 The affidavit should show that the same prejudice or local influence exists in all the counties in the State to which the venue could be changed.32 The papers should show that the necessary difference of citizenship existed at the time when the suit was begun; 33 and also at the time when the application is made.34 Under the Revised Statutes, an affidavit, sworn to before a suit was brought, which correctly described the case by its title and by the number subsequently given thereto was held to be sufficient.35 It has been held: that the petition may be verified by an agent of the petitioner; and that the petitioner's own affidavit is not required when the facts are proved by the affidavits of others, 30 Short v. Chicago, M. & St. P. Ry. Co., 33 Fed. 114; Amy v. Manning, 38 Fed. 536; s. c., 38 Fed. 868; Niblock v. Alexander, 44 Fed. 306; P. Schwenk & Co. v. Strang, 59 Fed. 209. See Re Pennsylvania Co., 137 U. S. 451, 453, 34 L. ed. 738, 739; Collins v. Campbell, 62 Fed. 850. Contra, Cooper v. Richmond & D. R. Co., 8 L.R.A. 366, 42 Fed. 697; Adelbert College v. Toledo, W. & W. Ry. Co., 47 Fed. 836, 841. 31 Detroit v. Detroit City Ry. Co., 54 Fed. 1, 13. 32 Southworth v. Reid, 36 Fed. 451; Robison v. Hardy, 38 Fed. 49; Board of Water Com'rs v. Robbins, 125 Fed. 656; Parker v. Vanderbilt, 136 Fed. 246. 33 Young v. Ewart, 132 U. S. 267, 10 Sup. Ct. 75, 33 L. ed. 352; Miller v. Chicago, B. & Q. R. Co., 17 Fed. 97 (3 McCrary 460); Frelinghuysen v. Baldwin, 19 Fed. 49; Schnadig v. Flescher, 29 Fed. 465; Adelbert College of Western Reserve University v. Toledo, W. & W. R. Co., 47 Fed. 836; Martin v. 34 Cochran v. Montgomery County, 199 U. S. 260, 273, 50 L. ed. 182, 188; reversing Montgomery County v. Cochran, 116 Fed. 985; and overruling a number of decisions of the lower courts to the contrary. Rike v. Floyd, 42 Fed. 247; Anderson v. Bowers, 43 Fed. 321; Wilder v. Virginia, T. & C. Steel & Iron Co., 46 Fed. 676; Terre Haute v. Evansville & T. H. R. Co., 106 Fed. 545; Campbell v. Milliken, 119 Fed. 982; Weldon v. Fritzlen, 128 Fed. 608, 614 (reversed Boatmen's Bank v. Fritzlen, C. C. A., 135 Fed. 650). 35 Canal & C. Sts. R. Co. v. Hart, 114 U. S. 654, 5 Sup. Ct. 1127, 29 L. ed. 226. When the date of the affidavit was more than a year prior to its presentation to the court, it was held that it would not be presumed that the local prejudice still existed. Metropolitan Life Ins. Co. v. Ethier, 44 Mich. 144, 6 N. W. 201, 369. who state that they have personal knowledge thereof; 36 although one contains the additional averment, "that affiant knows the facts of such prejudice and local influence, and makes this affidavit from such knowledge." 37 The petition may be verified and an affidavit made by any person acquainted with the facts. The oath of the petitioner is not required.38 If made without the State, it is the proper practice to have the proof of the authority of the officer taking the same authenticated, in the manner that is required by the State statutes.30 If made within the State, it has been held that the State statute, concerning the form of the certificate to the jurat by the officer, must be followed.40 Notice of the application must be given to the plaintiff. It is the usual and the better practice, to allow a hearing to both sides, upon the application for the removal for prejudice or local influence.42 It has been held that the court may, in its discretion, refuse to allow the affidavit of the defendant to be controverted.43 36 Parker v. Vanderbilt, 136 Fed. 246. 87 Niblock v. Alexander, 44 Fed. 306. 38 Dennis v. Alachua County, 3 Woods 683, Fed. Cas. No. 3,791; Bonner v. Meikle, 77 Fed. 485. 39 Bowen v. Chase, Fed. Cas. No. 1,720 (7 Blatchf. 255). 40 Sutherland v. Jersey City & B. R. Co., 22 Fed. 356. Jud. Code, § 29, 36 St. at L. 1087. 41 P. Schwenk & Co. v. Strang, 59 Fed. 209, 8 C. C. A. 92; Herndon v. Southern Ry. Co., 73 Fed. 307; Bonner v. Meikle, 77 Fed. 485; Reeves v. Corning, 51 Fed. 774, 776; Malone v. Richmond & D. R. Co., 35 Fed. 625, 629, per Harlan, J. Contra, Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 1 L.R.A. 65; Amy v. Manning, 38 Fed. 868, 869; Adelbert College v. Toledo, W. & W. Ry. Co., 47 Fed. 836, 843; Carpenter v. Chicago, M. & St. P. Ry. Co., 47 Fed. 535; Reeves v. Corning, 51 Fed. 774; Crotts v. Southern Ry. Co., 90 Fed. 1; Montgomery County v. Cochran, 116 Fed. 985, 990; reversed on another point, 199 U. S. 260, 50 L. ed. 182. Where a notice was served three days before the appointed time, two weeks additional time was given to the party opposing the removal. Carson & Rand Lumber Co. v. Holtzclaw, 39 Fed. 578. 42 Reeves v. Corning, 51 Fed. 774, 776; P. Schwenk & Co. v. Strang, C. C. A., 59 Fed. 209. 43 Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 1 L.R.A. 65; Huskins v. Cincinnati, N. O. & T. P. R. Co., 37 Fed. 504, 3 L.R.A. 545; Cooper v. Richmond & D. R. Co., 42 Fed. 697; 8 L.R.A. 366; When the original application was ex parte, the court may, in its discretion, allow a rehearing on affidavits by the plaintiff; but, it has been said, that it ordinarily will refuse a rehearing; 44 "unless it is clearly made to appear that the court has been imposed upon or misled." 45 It has been held that leave to move for a rehearing must be obtained, even though the first application was ex parte.46 A plea in abatement is not indispensable to raise an issue upon the allegations in the petition. It was held that a plea to the petition, which simply denied the allegations as to the petitioner's belief, but not the allegations as to the existence of prejudice or local influence, did not raise an issue.48 An order of the Federal court, granting or denying the application, must be obtained and filed in the State court.49 The State court does not lose jurisdiction until this is done.50 An entry of a finding of the jurisdictional facts, in the record of docket or journal of the District Court, is not sufficient.51 The transcript, including a copy of the order, must be subsequently filed in the Federal court.52 Brodhead v. Shoemaker, 44 Fed. 518, 11 L.R.A. 567; Adelbert College v. Toledo, W. & W. Ry. Co., 47 Fed. 836, 843; Carpenter v. Chicago, M. & St. P. Ry. Co., 47 Fed. 535; Reeves v. Corning, 51 Fed. 774. Contra, P. Schwenk & Co. v. Strang, C. C. A., 59 Fed. 209; Maher v. Tower Hotel Co., 94 Fed. 225; Ellison v. Louisville & N. R. Co., 112 Fed. 805, 50 C. C. A. 530. 44 Adelbert College v. Toledo, W. & W. Ry. Co., 47 Fed. 836, 843; Carpenter v. Chicago, M. & St. P. Ry. Co., 47 Fed. 535; Reeves v. Corning, 51 Fed. 774. Contra, Short v. Chicago, M. & St. P. Ry. Co., 34 Fed. 225, 227; Ellison v. Louisville & N. R. Co., C. C. A., 112 Fed. 805. 45 Reeves v. Corning, 51 Fed. 774. 46 Carpenter v. Chicago, M. & St. P. Ry. Co., 47 Fed. 535. 47 Short v. Chicago, M. & St. P. Ry. Co., 34 Fed. 225. 48 County Court of Taylor County v. Baltimore & O. R. Co., 35 Fed. 161. 49 Pennsylvania Co. v. Bender, 148 U. S. 255, 257, 258, 13 S. Ct. 591, 37 L. ed. 441, 442; Tod v. Cleveland & M. V. Ry. Co., 65 Fed. 143, 12 C. C. A. 521. 50 Pennsylvania Co. v. Bender, 148 U. S. 255, 13 S. Ct. 591, 37 L. ed. 441; Tod v. Cleveland & M. V. Ry. Co., 65 Fed. 145, 12 C. C. A. 521; Sparkman v. Supreme Council American Legion of Honor, 35 S. E. 391, 57 S. C. 16. 51 Pennsylvania Co. V. Bender, 148 U. S. 255, 13 S. Ct. 591, 37 L. ed. 441; Tod v. Cleveland & M. V. Ry. Co., 65 Fed. 145, 12 C. C A. 521. 52 Pennsylvania Co. V. Bender, When there are two separable controversies in the case, the District Court may remand, to the State court, such one of them as does not affect the defendant who procured the removal.53 Otherwise, the whole case remains in the Federal court.54 The statements in the papers upon the application are privileged and an attorney cannot be punished by a State court for making or presenting them.55 § 550. Removal of suits between citizens of the same State claiming land under grants of different States. The statute regulating the removals of suits in which there is a controversy between citizens of the same State claiming land under grants of different States, is as follows: "If in any action commenced in a State court the title of land be concerned, and the parties are citizens of the same State and the matter in dispute exceed the sum or value of three thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under grant from some other State, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform that 148 U. S. 255, 13 S. Ct. 591, 37 L. ed. 441; Tod v. Cleveland & M. V. Ry. Co., 65 Fed. 145, 12 C. C. A. 521. 53 18 St. at L. 470, § 2, as amended by 24 St. at L. 552 and 25 St. at L. 433. See Whelan v. N. Y., L. E. & W. R. Co., 35 Fed. 849; Haire v. Rome R. Co., 57 Fed. 321, 323. 54 Ibid. 55 Re Sherwood (Pa. Jan., 1918), 103 Atl. 42, where the attorney had stated that "the five judges of the In Re Breckenridge, 31 Neb. 489, 48 N. W. 142, an attorney was reprimanded because of statements made by him upon such an application. |