ern District of New York, it has been held that, where a suit is removed by a non-resident defendant because of a difference of citizenship, the "proper district" is the district where he resides and that the suit must be removed thereto.3 § 537j. Effect of counter-claim upon removal. The pleading in a State court by the original defendant, of a counterclaim or demand in re-convention, which exceeds the jurisdictional amount, does not put the original plaintiff in the position of a defendant so that he can remove the cause,1 nor debar the defendant of his right to remove. But where, pending an appeal by a landowner from the award of a sheriff's jury in condemnation proceedings under the statute of Iowa, he filed a pleading which was tantamount to a cross-bill praying an injunction against the institution of the proceedings for want of power in the corporation, it was held that this made the corporation defendant, as regards the issues raised thereupon, and entitled it to remove the case when the other statutory prerequisites existed.3 The authorities are in conflict as to whether the amount of a counterclaim pleaded by the defendant should be added to that of the plaintiff's claim, in order to determine the juris 685; St. John v. Taintor, S. D. N. Y., 220 Fed. 457; N. Y. Coal Co. v. Sunday Creek Co., 230 Fed. 295; Ostrom v. Edison, D. N. J., 244 Fed. 228; Lockport Glass Co. v. H. L. Dixon Co., D. Pa., 262 Fed. 976. 3 Mattison v. Boston & M. R. R., N. D. N. Y., 203 Fed. 821; Park Square Automobile Station v. Am. Locomotive Co., N. D. N. Y., 222 Fed. 979; mandamus refused, Ex parte Park Square Automobile Station, 244 U. S. 412, 37 Sup. Ct. 732, 61 L. ed. 1231. $537j. 1 West v. Aurora City, 6 Wall. 139, 18 L. ed. 819; La Montagne v. T. W. Harvey Lumber Co., 44 Fed. 645; Waco Hardware Co. v. Michigan Stove Co., C. C. A., 91 Fed. 289; McKown v. Kansas & T. Coal Co., 105 Fed. 657; City of Au rora v. West, 25 Ind. 148; aff'd 6 Wall. 139, 18 L. ed. 819; Chappell v. Chappell, 39 Atl. 984; Illinois Cent. R. Co. v. A. Waller & Co., 164 Fed. 358, 85 Md. 532; Smithers v. Smith (Tex. Civ. App.), 80 S. W. 646; rehearing granted (Sup.) 81 S. W. 283. Contra, Carson v. Rand Lumber Co. v. Holtzclaw, 39 Fed. 578 (for prejudice or local influence); Price v. Hart v. T. J. Ellis & Co., 129 Fed. 482. See infra, $542; Glover Mach. Works v. Cooke Jellico Coal Co., 222 Fed. 531. 2 Meissner v. Buek, 28 Fed. 161; La Montagne v. T. W. Harvey Lumber Co., 44 Fed. 645. Contra, Hansen v. Pac. Coast Asphalt Cement Co., 243 Fed. 283. 3 La Montagne v. T. W. Harvey Lumber Co., 44 Fed. 645. dictional amount. It has been held that this question is so doubtful that a motion to remand the clause should be granted in such a case.5 Where the counterclaim belongs to a class which by the State practice is barred unless pleaded in the suit, it must be added to the sums demanded by the plaintiff when determining the jurisdictional amount. Such an objection is waived if the plaintiff proceeds in the Federal court without making a motion to remand shortly after the removal.7 Where the counterclaim is for damages in excess of the amount which the State court has jurisdiction to award, such excess must be disregarded. § 537k. Nature of the right of removal. The purpose of the creation of the right to remove a case from a State to a Federal court was to enable a defendant to have claims against him under the Federal Constitution or Federal statutes, adjudicated in the first instance by a Federal tribunal; and to enable him to obtain freedom from local prejudice or influence, when sued in the courts of a State, of which he is not a citizen. It is analogous to a change of venue. common law and is the creature 4 Clarkson v. Manson, 4 Fed. 257 (18 Blatchf. 443); Carson & R. L. Co. v. Holtzclaw, 39 Fed. 578; Wolcott v. Watson, 46 Fed. 529; Wolcott v. Sprague, 55 Fed. 545; Lee v. Continental Ins. Co., 74 Fed. 424; Price & Hart v. T. J. Ellis & Co., 129 Fed. 482; Central Commercial Co. v. Jones-Dusenbury Co., 251 Fed. 13; Clarkson v. Manson (N. Y.), 60 How. Pr. 45; reversing 59 How. Pr. 480. See Champion v. Grand Rapids, etc., Ry. Co., 145 Mich. 676, 108 N. W. 1078. Contra, Falls W. Mfg Co. v. Broderick, 6 Fed 654; La Montague v. T. W. Harvey Lumber Co., 44 Fed. 645; Bennett v. Devine, 45 Fed. 705; McKown v. Kansas & T. Coal Co., 105 Fed. 657; Fltenstein v. Yankaus, S. D. N. Y.; Hough, J., quoted in Yankaus v. Feltenstein, 244 U. S. 127, 131, in which This right is unknown to the of statute. Statutes, which the author was counsel. See supra, $ 21. 5 Crane Co. v. Guanica Centrale (S. D. N. Y.), 132 Fed. 713. Contra, Yankaus v. Feltenstein, 244 U. S. 127, 131, in which the author was counsel. 6 Lee v. Continental I. & S. Co., 74 Fed. 424. 7 Mackay v. Uinta Dev. Co., 229 U. S. 173. 8 New York I. & P. Co. v. Milburn Gin & Machine Co., 35 Fed. 225. Cf. Bennett v. Forrest, 69 Fed. 421. § 537k. 1 Davis v. St. Louis & S. F. Ry. Co., 25 Fed. 786, 787, infra, $ 555. 2 Gaines v. Fuentes, 92 U. S. 10, 23 L. ed. 524; Hubbard v. Northern R. Co., Fed. Cas. No. 6,818 (3 provide for such removals, are authorized by the Constitution of the United States. The right of removal is not a vested right of property, which may not be taken away after it has once accrued; and such a right, which has come into existence, but has not been exercised before the repeal of the statute under which it arose, is lost upon such repeal.1 The rights of a plaintiff to bring and of defendant to remove a suit over which the Federal and State courts have concurrent jurisdiction are not reciprocal; the fact that the plaintiff might have brought the suit in the Federal court of a particular district does not give the defendant the right to remove it thereto.5 § 5371. Interference by the States with the right of removal. A State has no power to forbid the removal of a suit to a Federal court.1 A State statute is invalid which deprives a foreign corporation of the benefit of a statute of limitations unless the latter stipulates not to remove to the Federal court suits brought Blatchf. 84; 25 Vt. 715); Manley v. Olney, 32 Fed. 708. 3 Chicago & N. W. R. Co. V. Whitton, 13 Wall. (80 U. S.) 270, 20 L. ed. 571; Home Life Ins. Co. v. Dunn, 19 Wall. (86 U. S.) 214, 22 L. ed. 68; Tennessee v. Davis, 100 U. S. 257, 25 L. ed. 648; Strauder v. West Virginia, 100 U. S. 303, 25 L. ed. 664; Fisk v. Union Pac. R. Co., Fed. Cas. No. 4,827 (6 Blatchf. 362); Johnson v. Monell, Fed. Cas. No. 7,399 (Woolw. 390); Murray v. Patrie, Fed. Cas. No. 9,967; San Mateo County v. Southern Pac. R. Co., 13 Fed. 145; Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 1 L. R. A. 65; McCormick v. Humphrey, 27 Ind. 144; Burson v. National Park Bank, 40 Ind. 173, 13 Am. Rep. 285; Meadow Val. Min. Co. v. Dodds, 7 Nev. 143, 8 Am. Rep. 709; State v. Fairfield County Court of Common Pleas, 15. Ohio St. 377; Hodgson v. Millward (Pennsylvania), 3 Grant Cas. 412; Kulp v. Ricketts (Pennsylvania), 3 Grant Cas. 420; Goodman v. City of 4 Manley v. Olney, 32 Fed. 708; against it.2 A State has no power to revoke the authority to transact business therein of a Federal corporation, or of a corporation engaged in interstate commerce, because of the removal by such a corporation of a suit brought against it. A State may revoke the authority of a foreign corporation, such as an insurance company, not engaged in interstate commerce, to transact business within its jurisdiction, because of the removal by such corporation of a suit which has been brought against it.5 6 A State statute cannot deprive a party of the right of removal by designating him as plaintiff in a particular class of suits where he is essentially defendant; nor by directing that nonresidents, who qualify there, as the personal representatives of those who die and leave assets in the State shall be treated as citizens thereof for the purpose of suing and being sued, deprive them of the right of removal.7 § 537m. Stipulations against removals. An agreement by a corporation not to remove, into a court of the United States, any suit brought against it within a State, is void.1 A stipulation not to remove a specified suit is valid. States. Railway Co. v. Whitton, 13 Wall. (80 U. S.) 270, 20 L. ed. 571; Hess v. Reynolds, 113 U. S. 73, 5 Sup. Ct. 377, 28 L. ed. 927; Clark v. Bever, 139 U. S. 96, 11 Sup. Ct. 468, 35 L. ed. 88; affirming 31 Fed. 670; Warren v. Wisconsin Valley R. Co., Fed. Cas. No. 17,204 (6 Biss. 425); Kirby v. Chicago & N. W. R. Co., 106 Fed. 551. 2 Quinette v. Pullman Co., C. C. A., 233 Fed. 980. 3 Mercantile Trust Co. v. Texas & P. Ry., 216 Fed. 225. 4 Harrison v. St. Louis & San Francisco R. R. Co., 232 U. S. 318; Wisconsin v. Phila. & R. Coal Co., 241 U. S. 329; Western Union Tel. Co. v. Frear, 216 Fed. 199; Copper Queen Consol. Mining Co. v. Jones, 237 Fed. 131. 5 Doyle v. Continental Ins. Co., 94 U. S. 535; Security Mutual Life The right to remove Ins. Co. v. Prewitt, 202 U. S. 246. 6 Chicago, M. & St. P. Ry. Co., Drainage Dist. No. 8, 253 Fed. 491. 7 Memphis Street Ry. Co. V. Moore, 243 U. S. 299. $ 537m. 1 Barron V. Burnside, 121 U. S. 186; Insurance Co. v. Morse, 20 Wall. 445; Rowland v. Empire State Life Ins. Co., Fed. Cas. No. 12,097; Ashe v. Union Cent. L. I. Co., 115 Fed. 234; Commonwealth v. East Tennessee Coal Co., 97 Ky. 238, 30 S. W. 608; Railway Passenger Assur. Co. v. Pierce, 27 Ohio St. 155; Baltimore & O. R. Co. v. Cary, 28 Ohio St. 208; Erie Ry. Co. v. Stringer, 32 Ohio St. 468; Rece v. Newport News & M. V. Co., 32 W. Va. 164, 9 S. E. 212, 3 L. R. A. 572. Contra, see New York Life Ins. Co. v. Best, 23 Ohio St. 105. 2 Hanover Nat. Bank v. Smith, Fed. Cas. No. 6,035, 13 Blatchf. a particular case may also be waived by the conduct of the defendant.8 § 537n. Waiver of right to removal. The right to remove a specified suit may be waived either by stipulation or by the conduct of the defendant.2 The following acts have been held to constitute a waiver of the right of removal: The argument by the defendant of a plea or motion which he has made. The transmission by him, or his procurement of the transmission, of a record from an inferior to a higher court of the State. His appeal to a State court of review from an order granting an injunction, or appointing a receiver. His application to a State court of reviews for a writ of prohibition to compel the Inferior court to proceed in a certain manner. A consent to the submission of the cause to State court. 224. A defendant may waive his right to insist upon a removal to a Federal court by his stipulation to try it in the State court in consideration of being permitted to file an answer after default, there being no question of jurisdiction. Smithson v. Chicago G. W. Ry. Co. (Minnesota), 73 N. W. 853. 8 Rosenthal v. Coates, 148 U. S. 142, 13 Sup. Ct. 576, 37 L. ed. 399; Hanover Nat. Bank, Fed. Cas. No. 6,035 (13 Blatchf. 224); Gaffney v. Gillette, Fed. Cas. No. 5,168 (4 Dill. 264); Hudson River R. R. & Term. Co. v. Day, 54 Fed. 545; State of West Virginia v. King, 112 Fed. 369; Schneider v. Eldredge, 125 Fed. 638; Amy v. Manning, 144 Mass. 153, 10 N. E. 737; Dart v. Arnis (New York), 19 How. Pr. 429; Pollack v. Cohen, 32 Ohio St. 514; Wadleigh v. Standard Life & Acc. Ins. Co., 76 Wis. 439, 45 N. W. 109. § 537n. 1 Hanover Nat. Bank v. Smith, Fed. Cas. No. 6,035. 2 Rosenthal v. Coates, 148 U. S. 142, 13 Sup. Ct. 576, 37 L. ed. 399; Hanover Nat. Bank v. Smith, Fed. A consent to a reference.9 Cas. No. 6,035 (13 Blatchf. 224); Gaffney v. Gillette, Fed. Cas. No. 5,168 (4 Dill. 264); Hudson River R. R. & Term. Co. v. Day, 54 Fed. 545; State of West Virginia v. King, 112 Fed. 369; Schneider v. Eldredge, 125 Fed. 638; Amy v. Manning, 144 Mass. 153, 10 N. E. 737; Dart v. Arnis (New York), 19 How. Pr. 429; Pollock v. Cohen, 32 Ohio St. 514; Wadleigh v. Standard Life & Acc. Ins. Co., 76 Wis. 439, 45 N. W. 109. 3 Amy v. Manning, 144 Mass. 153, 10 N. E. 737. 4 Hudson River R. & Term. Co. v. Day, 54 Fed. 545. 5 Chicago, I. & N. P. R. Co. v. Minnesota & N. W. R. Co., 29 Fed. 337. 6 Freeman v. Butler, 39 Fed. 1; Sidway v. Missouri Land & Live Stock Co., 116 Fed. 381; Franklin v. Wolf, 78 Ga. 446, 3 S. E. 696. 7 State of West Virginia v. King, 112 Fed. 369; Baltimore & O. R. Co. v. Ford, 35 Fed. 170. 8 Gaffney v. Gillette, Fed. Cas. No. 5,168, 4 Dill. 264. 9 Hanover Nat. Bank v. Smith, |