the suit would be brought on for hearing on bill and answer at the next term of court, which would begin September 13th. On October 19, 1892, before any hearing was had in accordance with the notice, the trust company presented a petition to Judge Swan, of this court, for the removal of the suit on the ground that by rea son of prejudice and local influence the petitioner could not obtain justice in the Wayne circuit court, or in any other court in the state to which, for such cause, the case could be removed. The petition states the jurisdictional facts, and refers to an affidavit accompanying it, to make it appear to the court that its averment in regard to prejudice and local influence is well founded. Upon the petition and affidavit Judge Swan made the order removing the cause as prayed. Subsequently a motion to remand the cause was made by the solicitor for the city of Detroit on the following grounds:

"(1) The cause was not subject to removal under the statutes of the United States applicable thereto. (2) The cause was not removed within the time required by said statutes; it was not removed until after the first term at which it could have been tried. (3) The affidavit and petition upon which such order was based do not contain any legal evidence of the facts therein stated. (4) The facts stated in said affidavit and petition, if true, do not offer any evidence that said Washington Trust Company, from prejudice or local influence, was not able to obtain justice in said circuit court for the county of Wayne, in chancery."

We shall consider these grounds in order.

1. The act under which this removal is to be sustained, if at all, was passed August 13, 1888, (25 St. c. 866, p. 433,) to correct the enrollment of an act approved March 3, 1887, (24 St. c. 373, p. 552.) The act is an amendment of the act of March 3, 1875, determining the jurisdiction of circuit courts of the United States, and regulating the removal of causes from state courts. By the first section the original jurisdiction of circuit courts of the United States is defined. Part of the second section is as follows:

"That in any suit of a civil nature in law or in equity arising under the constitution or laws of the United States or treaties made or which shall be made under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suit of a civil nature at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending or which may hereafter be brought in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. And where a suit is now pending or may hereafter be brought in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant being such citizen of another state may remove such suit into the circuit court of the United States for the proper district at any time before the trial thereof when it shall be made to appear to such circuit court that from prejudice or local influence he will not be able to obtain justice in such state

court, or any other state court to which the defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause."

It has been held by the supreme court of the United States in Re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. Rep. 141, that only suits involving $2,000 or more can be removed for local prejudice. The petition for removal shows that the necessary amount is involved. It has been held by Judge Jackson in Whelan v. Railroad Co., 35 Fed. Rep. 849, and in Thouron v. Railway Co., 38 Fed. Rep. 673, that under this act, where all the plaintiffs in a state court are citizens of the state where suit is brought, a single defendant, being a citizen of another state, may remove the case into the proper United States circuit court for prejudice and local influence, even though he is united as codefendant with citizens of the same state as the plaintiffs, and even though there is no separable controversy between the plaintiffs and the nonresident removing defendant. We understand the chief justice in the case of Wilder v. Iron Co., 46 Fed. Rep. 676, to concede and assume the correctness of the view of Judge Jackson as given above. It follows that, as the city of Detroit, the sole plaintiff here, is a citizen of Michigan, and the trust company, one of the defendants, is a citizen of New York, the order of removal, so far as the citizenship of the parties is concerned, was authorized by statute.

Counsel for complainant do not seriously dispute the correctness of the foregoing views, but the ground which they vigorously press upon the court for excluding this from the cases included within the local prejudice clause is very different. They say that the only question at issue in this suit is one of law, and that questions presenting only questions of law are not removable under the statute for prejudice and local influence. It is conceded that the questions arising on the bill and answer involve simply the construction of the constitution of the state of Michigan, and the laws and ordinances passed thereunder, and are purely of law. The contention of counsel is that the prejudice and local influence which congress had in mind was that which would operate upon a jury, and that it never could have supposed that a state judge would be affected thereby in deciding questions of law. We are clear that this claim of counsel cannot be supported. The local prejudice clause under discussion begins with the words, "And where a suit is now pending, or which may hereafter be brought," etc. The proper limitation to be put on the meaning of this phrase has been authoritatively stated by the supreme court in the case of In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. Rep. 141, where Mr. Justice Bradley said:

"The fourth clause [the one in question] describes only the special cases comprised in the preceding clauses. The initial words 'and where' are equivalent to the phrase and when in any such case.' In effect, they are tantamount to the beginning words of the third clause, namely, and when in any suit mentioned in this section.""

The suits mentioned in this section are suits at law and in equity. It necessarily follows, therefore, that the local prejudice clause relates to both suits at law and in equity. The words of the clause

"at any time before the trial thereof," used in fixing the time within which the removal on account of prejudice or local influence can be made, are relied on as indicating that only suits at law can be removed, because the word "trial" is properly used only with reference to such suits. This view is refuted by the foregoing language of Mr. Justice Bradley, and by the further fact that under the removal act of 1875, which, it is conceded, permitted the removal of causes in equity as well as at law, the same words are used to fix a time within which removals under that act could be made. When the words "trial" and "hearing" are used together, as in the removal acts of 1866 and 1867, the one refers to a trial at common law and the other to a hearing on the merits in chancery, (Car Co. v. Speck, 113 U. S. 84--86, 5 Sup. Ct. Rep. 374;) but when the word "trial" alone is used it includes both trial at common law and hearing in chancery as in the act of 1875.

If the prejudice and local influence clause applies to suits in equity, then congress must have intended to provide against the prejudice of judges as well as of juries, for there are no juries in equity. The contention on behalf of complainant is, therefore, reduced to a claim that it was the intention of congress to save suitors from injustice by a judge in the determination of issues of fact, but not against injustice done by him in deciding issues of law. We do not see why a judge, if influenced improperly against a party, may not yield to such influence as well in his decisions of legal questions as in his conclusions of fact.

The sole reason of the framers of the constitution for including in the judicial power of the United States the right to decide controversies between citizens of different states was a fear of the operation of prejudice or local influence in the tribunals of one state against a citizen of another. It was thereby intended in the administration of justice, both in determining facts and in deciding the law, to secure a judiciary independent of local influences and surroundings. Recognizing this intention on the part of the framers of the constitution, the federal courts exercise an independence of judgment in deciding many questions of state law, and under some circumstances decline to follow the state courts. In the leading case of Burgess v. Seligman, 107 U. S. 33, 2 Sup. Ct. Rep. 21, Mr. Justice Bradley, in discussing the power and duties of the federal courts in administering state laws, spoke for the supreme court as follows:

"The federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with, but not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of these laws. The existence of the two co-ordinate jurisdictions in the same territory is peculiar, and the result would be inconvenient but for the ex ercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of state constitutions and statutes. Such established rules are often regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is;

but where the law has not been thus settled it is the right and duty of the federal courts to exercise their own judgment, as they also always do with reference to the doctrines of commercial law and general jurisprudence. So when contracts and transactions have been entered into, and rights have accrued thereon in a particular state of the decisions, or when there is no decision of the state tribunal, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted in the state courts after such rights have accrued. But even in such cases, for the sake of harmony, and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt. Acting on these principles, founded as they are on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflicts with the well-considered decisions of the state courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the states in controversies between citizens of different states was to institute Independent tribunals, which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication."

We could have no better evidence than this that one of the objects of the makers of the constitution, in conferring judicial power in controversies between citizens of different states, was to avoid possible injustice to nonresident litigants from the influence of local prejudice on decisions by state courts on pure questions of law. But it is said we are considering a statute, and not the constitution. That is true, but the reason for conferring a constitutional power, and its scope and object, are of controlling importance in construing a statute passed in the exercise of the power. In cases where the right to sue in the federal courts, or the right to remove cases to them, is made to depend only on the fact of diverse citizenship, congress merely assumes the existence of local prejudice, and provides against its dangers to nonresidents, without regard to the actual fact, while in the clause under discussion, congress puts on him who would enjoy its benefit the burden of an affirmative showing. But in either case the evil sought to be avoided by the act of congress was the same as that which led the makers of the constitution to confer the power to pass the act,-possible injustice to nonresident litigants from prejudiced opinions of law as well as from prejudiced conclusions of fact. Neither authority nor federal statute has been cited which makes the distinction between questions of law and questions of fact contended for. If it was the intention of congress to so limit the right of removal, it could have expressed itself in language not to be mistaken, and would not have left the limitation to be inferred from an argumentative construction, which finds no basis either in the words used or in the reason of the provision.

2. The second objection to the order of removal is that the removal was not in time. The statute provides that the petition for removal in a proper cause shall be filed "at any time before the trial thereof." It is said that the supreme court has decided in Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. Rep. 207, that the time for removal under this act is the same as that in the act of 1875, and that, under the act of 1875 the petition for removal was required

to be filed before or at the term at which the cause could first be tried, and before the trial thereof. Conceding for the purpose of the argument that the supreme court has so decided, we are nevertheless of the opinion that the petition for removal in this case was in time. The petition for removal was filed on the 19th day of October, in the September term, which began on the 13th of September. The appearance of the trust company was required, by the order of publication and the notice, to be at the April term, on July 22d. Upon the 13th of August an order pro confesso was taken against the trust company on proof of publication and in default of its appearance. Subsequently, on August 19th, the order pro confesso was by stipulation set aside, and the trust company was allowed to file its answer. The argument on behalf of the city is that, as a de cree might have been taken at once on this order pro confesso against the trust company upon the complainant's making the necessary proofs, this would have been a trial on the merits, and therefore a trial could have been had in the April term. It would follow from

this that the petition for removal should have been filed at the April term, and, as filed, was too late. If the order pro confesso had been taken on a personal and actual service, the argument would be unanswerable, for it is clear that generally a hearing on a default is a trial, within the meaning of the removal act of 1875. McCallon v. Waterman, 1 Flip. 651. And it is also clear that under the act of 1875 a postponement of the trial by stipulation between counsel beyond a term when either party could demand a trial did not enlarge the time of removal beyond the first possible trial term. bitt v. Clark, 103 U. S. 612.

Bab

Under the circumstances of this case, the answer to the argument is twofold: First. Under the laws of Michigan, a decree by default against a nonresident brought in by publication only, can be set aside by such nonresident as a matter of right on payment of costs, and his right to answer the complainant's bill and to have a hearing on the merits is absolute. McDonald v. McDonald, 45 Mich. 44, 7 N. W. Rep. 230. A fortiori, it would seem that such a nonresident is entitled to have an order pro confesso before decree set aside, and to file an answer to the bill. Under the act of 1875, a nonresident against whom a decree by default had been rendered on service by publication, and on whose application within a prescribed time agreeably to the laws of the state, a decree was set aside, and his answer filed, was held entitled to file his petition for removal at the term at which the hearing could first be had on his answer. Harter v. Kernochan, 103 U. S. 562. It would seem to follow that, as the trust company in this case as a matter of right could have had the order pro confesso set aside, and it was set aside, the first trial term within which it was required to file its petition for removal under the requirements of the act of 1875 was the term at which a hearing could be had on its answer. Second. There could have been no trial on the order pro confesso, because that order was void. The order could only be valid in case all the steps required by the statute of Michigan in summoning an absent defendant had been literally and exactly complied with. See Colton v. Rupert, 60 Mich.