Page:Federal Reporter, 1st Series, Volume 6.djvu/762

 760 FEDBEAIi REPORTER. �controversy as would, if the allegation were true, authorize a removal, and the petition admits npthing stated in the com- plaint, and takes notice of nothing in it except to controvert it, the state court must cease from its jurisdiction ; and that, where there is a conflict between the complaint and the pe- tition, the petition alone must be regarded. In support of these yievfe, it is suggested, that, when the «ase is fuUy de- veloped by the proofs, it may turn ont that there is in it a controversy between the plaintiff and M. H. Mallory to which G. S. Mallory is not and never was a proper party; that such a state of f acts will show that M. H. Mallory, at the time he presented his petition for removal, had a right to remove the suit; and that, if not now allowed to remove it, his formai proceedings being regular, it will then appear that he has been deprived of a right. �In Dennistoun v. Draper, 5 Blatohf. 336, it was held by this court that where the defendant had taken proceedings, under section 3 of the act of March 2, 1833, (4 St. at Large, 633,) to remove into this court a suit brought in a state court, the removal was imperative, if the proceedings were in conformity with the act; that the question whether the defendant had in fact a right to remove the suit could not be raised by a motion to this court, before the trial, to remand the cause to the state court; and that any question as to the jurisdiction of this court in the promises, based on the point of an alleged absence of right in the defendant to remove the suit, could be raised at the trial. �That was an action of replevin brought in the state court to recover the possession of cotton- The defendant removed. the case, under the act of 1833, by certiorari, claiming that he was in possession of the cotton as an officer, under the revenue laws of the United States. The plaintiff moved to remand the cause on affidavits alleging that the defendant was simply a tort-feasor. The motion was denied, on the view that it was not proper, if it was competent, for this court to determine, upon motion, the disputed jurisdictional facjts jpvolving the right or legality of the removal, a,nd that ��� �