Page:Federal Reporter, 1st Series, Volume 8.djvu/691

 WOOLRIDGE V. m'kENNA. 677 �be remanded. I have no doubt it is that character of case. By the very terms of the bankruptcy acts the assignee might have filed this bill in this court, irrespeotive of the citizenship of the parties, and this power could not be given him if it were not a case "arising ander the constitution and laws of the United States." Bailroad Co. V. Mississippi, 102 U. S. 135; Lathrop v. Drake, 91 U. S. 616; Burbank v. Bigehw, 92 U. S. 179; Van Allen v. Railroad, 3 Fed. Ebp. 545; S. G. 1 MoC. 698, 20 Am. L. Eeg. (N. S.) 24, 42; Babbit v. Clark, 13 Cent. L. J. 248. But by these same acts of congress the assignee bas been vested with power to bring this suit in the state court where he did bring it, and we can only obtain jurisdiction by removal as in other cases. Claflin v. Houseman, 93 U. S. 130. �This petition for removal makes no mention of that ground of jurisdiction, but is based wholly on the ground of difference in citizen- ship. The character of this suit appears by the bill filed in the state court ; but while we may look to that in aid of the allegations con- tained in the petition for removal, we cannot depend wholly on it to furnish the jurisdictional averments. The petition itself, like all other records in this court, must show by proper averments the juris- dictional facts, and the allegata and probata must correspond. This petition should have averred at least that it was a case "arising under the constitution and laws of the United States." Ins. Co. v. Pechner, 95 U. S. 183; Bible So. t. Grave, 101 U. S. 610; Trafton v, Nougues, 4 Sawy. 179 ; Keith v. Levi, 1 McO. 343; S. C. 2 Fed. Eep. 743; Dill. Eem. (2d Ed.) § 73, p. 89; M. § 70 et seq. This is the rule in original cases where the declaration or other pleading must contain these averments; and I think it applies here. Ex parte Smith, 94 U. S. 455. In Ins. Co. v Pechner, supra, it is said that the "petition for removal, when filed, becomes a part of the record in the cause. It should state facts which, taken in connection with such as already appear, entitle him to the transfer. " It would appear from expressions in some of the cases that we may look to the record of the state court, or to the removal petition,, for the jurisdictional facts ; but I do not find it any where decided that, when a case presented by the petition for removal is predicated on the citizenship, we may retain it if it appears by the record in the state court to be one aris- ing under the constitution and laws of the United States. Dill. Eem. § 70, 71. Grderly proceedings require that one who seeks, by petition or other pleadings, any remedy or redress depending upon gtatutory grounds prescribed as conditions to that remedy, should state the facts upon which his petition is founded, and not require ��� �