Opinion of the Court.

upon this subject, the only reasonable inference is that Congress contemplated that the petition for removal should be filed in the state court as soon as the defendant was required to make any defence whatever in that court, so that, if the case should be removed, the validity of any and all of his defences should be tried and determined in the Circuit Court of the United States." Martin v. Baltimore & Ohio Railroad, 151 U. S. 673, 686, 687.

As the defendant's right of removal into the Circuit Court of the United States can only be exercised by filing the petition for removal in the state court before or at the time when he is required to plead in that court to the jurisdiction or in abatement, it necessarily follows that, whether the petition for removal and such a plea are filed together at that time in the state court, or the petition for removal is filed before that time in the state court and the plea is seasonably filed in the Circuit Court of the United States after the removal, the plea to the jurisdiction or in abatement can only be tried and determined in the Circuit Court of the United States.

Although the suit must be actually pending in the state court before it can be removed, its removal into the Circuit Court of the United States does not admit that it was rightfully pending in the state court, or that the defendant could. have been compelled to answer therein; but enables the defendant to avail himself, in the Circuit Court of the United States, of any and every defence, duly and seasonably reserved and pleaded, to the action, "in the same manner as if it had been originally commenced in said circuit court."

How far a petition for removal, in general terms, without specifying and restricting the purpose of the defendant's appearance in the state court, might be considered, like a general appearance, as a waiver of any objection to the jurisdiction of the court over the person of the defendant, need not be considered; because, in the petition filed in the state court for the removal of this action into the Circuit Court of the United States, it was expressed that the defendant appeared specially and for the sole and single purpose of presenting the petition for removal. This was strictly a special

Opinion of the Court.

appearance for this purpose only, and, whether the attempt to remove should be successful or unsuccessful, could not be treated as submitting the defendant to the jurisdiction of the state court for any other purpose. Likewise, in the motion filed by the defendant in the Circuit Court of the United States, immediately after the action had been removed into that court, for an order setting aside the summons and the service thereof, it was expressed that the defendant appeared by its attorney specially for the purpose of applying for this order. Irregularity in a proceeding by which jurisdiction is to be obtained is in no case waived by a special appearance of the defendant for the purpose of calling the attention of the court to such irregularity. Harkness v. Hyde, 98 U. S. 476; Southern Pacific Co. v. Denton, 146 U. S. 202; Mexican Central Railway v. Pinkney, 149 U. S. 194.

The necessary conclusion appears to this court to be that the defendant's right to object to the insufficiency of the service of the summons was not waived by filing the petition for removal in the guarded form in which it was drawn up, and by obtaining a removal accordingly. And it is gratifying to know that this conclusion is in accord with the general current of decision in the Circuit Courts of the United States. Parrott v. Alabama Ins. Co., 5 Fed. Rep. 391; Blair v. Turtle, 1 McCrary, 372; Atchison v. Morris, 11 Bissell, 191; Small v. Montgomery, 5 McCrary, 440, explaining Sweeney v. Coffin, 1 Dillon, 73, 76; Hendrickson v. Chicago &c. Railway, 22 Fed. Rep. 569; Elgin Co. v. Atchison &c. Railway, 24 Fed. Rep. 866; Kauffman v. Kennedy, 25 Fed. Rep. 785; Miner v. Markham, 28 Fed. Rep. 387; Perkins v. Hendryx, 40 Fed. Rep. 657; Clews v. Woodstock Co., 44 Fed. Rep. 31; Bentlif v. London & Colonial Corporation, 44 Fed. Rep. 667; Reifsnider v. American Publishing Co., 45 Fed. Rep. 433; Forrest v. Union Pacific Railroad, 47 Fed. Rep. 1; O'Donnell v. Atchison &c. Railroad, 49 Fed. Rep. 689; Ahlhauser v. Butler, 50 Fed. Rep. 705; McGillin v. Claflin, 52 Fed. Rep. Judgment affirmed.

657.

No. 180. Submitted January 25, 1895. - Decided March 4, 1895.

When it is not shown when, or at whose instance, or upon what ground a removal of a cause from a state court was effected, and no copy of the petition or of the substance of it is in the bill or annexed to it, everything must be presumed against the party objecting to it.

As, under the act of March 3, 1875, c. 137, it was in the power of the court to rearrange the parties and to place them on different sides according to the actual facts, it is to be assumed that that power was exercised by the court below, and its action in that respect is not reviewable here. After a final decree in a case, an apparent want of jurisdiction on the face of the record cannot be availed of in a collateral proceeding.

The charges of fraud in this case are too vague to be made the basis of a bill to set aside a judicial sale.

The delay of the plaintiff's for four years to assert their claim is, under the circumstances, fatal to it.

THIS was a bill in equity to set aside a decree rendered in a former case of Watson v. Evers et al., for want of jurisdiction, or that the sale of certain land by a special commissioner, under such decree, be set aside as to all the lands still in the possession of the defendants.

Plaintiffs, who were aliens, British subjects and residents of London, set forth that in 1881 or 1882 they, together with Watson and one Baldwin, citizens of Illinois, were associated together in the purchase of a large quantity of land in Mississippi, known as the Delta, amounting to 500,000 or 600,000 acres together with certain pine lands amounting to about 150,000 acres. That certain differences having arisen as to their respective interests, Watson filed a bill in the chancery court of Le Flore County (a mistake for De Soto County) against Evers, William Marshall, George F. Philips, M. S. Baldwin et al., which was removed into the Circuit Court of the United States, wherein a decree was rendered on October 3, 1885, in

Statement of the Case.

favor of Watson for the sum of $145,000, which was charged as a lien upon said lands, and, in the event of the failure of the defendants to pay such sum within six months from the date of the decree, the lands were to be sold by one McKee, as special commissioner, for the satisfaction of the decree. The land was accordingly sold, and most of it bought in by Watson, such sale being afterwards confirmed by the court. "That said decree was a consent decree, agreed to in a spirit of compromise, and accompanied with and based upon certain agreements to be hereinafter explained."

The bill further alleged that the Circuit Court of the United States was without jurisdiction to entertain such suit, or render such decree, by reason of the fact that Watson, the plaintiff in such bill, was a citizen of Illinois, and Baldwin, one of the defendants, and a material defendant, was likewise a citizen of Illinois.

It was further charged that before the sale of the land was had, Watson and his agents and representatives conspired with one Burroughs to prevent them (the plaintiffs) from being present at said sale, and to deter them from bidding for the lands, the result of which fraudulent collusion was that Watson bought the lands at a mere trifle per acre, except about 162,000 acres, which it was fraudulently agreed that Burroughs and his friends should buy at their own figures. That but for such fraudulent collusion the Delta lands would have sold for more than enough to satisfy the decree, and would have left, at least, the pine lands to plaintiffs in this bill and the other defendants in said suit, after fully paying their debt. Instead of this, that they succeeded in securing all the land, and still claimed a large balance against the defendants in that suit as due by the decree; more, in fact, than Watson originally advanced for the purchase of the land. That the plaintiffs were not aware of and had no knowledge of the fraud practised upon them by Watson until recently, and long after the sale had been ratified and confirmed, and that this was the first opportunity to bring the matter before the court, and they ask a restitution of their rights and an equitable redress for the fraud.

Statement of the Case.

That the decree was a compromise decree, accompanied by stipulations, one of which was that the defendants were to have six months in which to pay the decree, and that, when they acquiesced and consented to such decree, it was their intention and expectation, and it was so understood by all parties, to organize a land company in London, and to sell the lands referred to in the decree for money enough to pay off said indebtedness, and the balance in stock and debentures and working capital, within the six months allowed to them by the decree. That to accomplish this, and carry out the understanding, a company was organized, at great expense to plaintiffs, and a satisfactory sale of the lands arranged to be made to such company, which would have been perfected, and Watson's debt paid, but for the interference of Watson and his agents, who, by circulating false reports affecting the title to the land, prevented such company from being floated, and defeated the efforts of the defendants in such suit, in raising money to comply with their agreement to pay off such decree. That afterwards, a son of Watson, representing his father and the Delta and Pine Land Company, visited London, and, recognizing the fact that plaintiffs still had an interest in the lands, agreed to organize another English company, certain shares of stock in which company they agreed to receive. That plaintiffs, being ignorant of the fraud that had been practised upon them at the time of the sale, and relying upon the statements of Watson's son, at his request executed quitclaim deeds of their interests in such lands, Watson stating that he wanted such deeds in trust solely for the purpose of facilitating the sale of the lands to such company, and promising that such deeds when executed should be deposited by him with Walter Webb & Company, of Queen Victoria Street, London, the solicitors of such company. That Watson, instead of depositing the deeds with the solicitors, fraudulently and in violation of his promise and agreement, sent the deeds to Mississippi, and caused them to be registered in the several counties in which the lands were located. That this was done without the knowledge or consent of plaintiffs; that the organization of the company was

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