Brown, President.
This was a foreign attachment, under the statute, by the plaintiff, John Bell, against the Merchants’ and Mechanics’ Bank of Wheeling, and the absent defendant Samuel M. Bell, to attach in the hands of the bank some 28,700 dollars, due from said bank to said ab[191]*191sent defendant. The process was executed on the bank and an order .of publication awarded and duly executed against the absent defendant.
In this state of the -case the absent defendant might appear at rules and do what was necessary to protect his interests. By the 13th section, chapter 151, Code of 1860, he might release from the attachment -the estate attached by giving bond with condition to perform the judgment or de.cree of the court. This bond to be taken by the officer serving the attachment.
And by the 15th section of same chapter, the circuit court might in vacation discharge the attachment on the defendant’s giving bond with security to pay or satisfy the decree, if any should be rendered for the plaintiff in the suit. And so the absent defendant did; for on the 1st day of August, 1865, he appeared before the judge of the said court in vacation, and on his motion the attachment in the cause was discharged, upon his giving bond and'security before the clerk of said court, conditioned according to law', which bond he thereupon gave, but made no motion then for the removal of said cause to the Federal court. After-wards, at the next term of said court, to wit: on the 31st day of October, 1865, the said defendant, Samuel M. Bell, presented in court his petition and bond for the removal of said cause from the State to the United States court. But the court, upon consideration of the motion, overruled the same, and then proceeded to decide the cause upon its merits. This refusal of the court to remove the cause is now assigned for error and is the first question to be determined in the cause. The right of removing a cause in any particular instance from the State court to the Federal court is a privilege and not a duty, and may be exercised or not at the option of the party defendant entitled to the privilege; biit to oust the general jurisdiction of the State court the party who would avail himself of the privilege should do it at the earliest opportunity, because like a plea to the jurisdiction or other.dilatory plea, it should not be used for delay, if delayed in the use.
[192]*192The facts stated show tbat.the absent defendant appeai’ed, gave bond and security to satisfy the decree of the court, and obtained a discharge of the fund attached, but made no motion for removal of the cause until the next term of the court, about three months after his first appearance. Here then was delay in the use of a privilege claimed which might not be used for delay. Redmond vs. Russell, 12 John., 153; Gibson vs. Johnson, Peter’s C. C. R., 44; State of Pennsylvania vs. Corbett, 3 Dallas, 467; also 1 Paige’s Chy Rep., 153. There is another fatal objection to the motion for removal, and that is, that the bond tendered by the applicant for the removal did not provide that he should appear in the cause in the Federal court. It simply provided “ for his en-. tering in such court — copies of said process against him;” but omitted the succeeding clause of the statute, “and also for his there appearing,” &c. As he was not a resident of West Virginia, but of Pennsylvania, and the subject matter a foreign attachment,.the Federal court in this State had no jurisdiction of his person nor of the subject, and it was therefore of the highest importance that he should enter his personal appearance and that the bond should provide for it if the case was to be removed, i
Again, one of the defendants was a resident of this State and therefore the Federal court had no jurisdiction on account of the parties plaintiff and part of the defendants being residents of the State, and consequently there could not be a removal on that ground. Ward vs. Arredondo, 1 Paine, 410; Conkling’s Treat., 154-5.
Nor could the defendant below have been sued in said court as he was not a resident in the said district, and if he Isad been he might have pleaded the fact of his non residence in abatement. It is not competent therefore for the defendant below to oust the State court of its rightful jurisdiction and give it to the Federal court which had none; neither over the subject, because it was a foreign attachment; Picquet vs. Swan, 5 Mason, 35; Toland vs. Sprague, 14 Peter, 300; nor over the person of the defendant, because he was a non resident. The attempt to oust the State court [193]*193is made under the 12th section of the judiciary act, which authorizes such removal .when the suit is brought by a citizen of the State in which the suit is against a citizen of another State.
Now it is manifest that the object of this act was to secure the defendant, who has no choice in the matter, against the supposed advantage the plaintiff might have in selecting the courts of his own State instead of the courts of the defendant’s State. If the plaintiff chose to go into the defendant’s State and sue him there the defendant had no right of removal. And it would seem but correlative if the de-fendent should go into the plaintiff’s State, and there voluntarily submit himself to the jurisdiction of the State court by appearing to a foreign attachment, that he too should not in such case have the privilege of removal.
The plaintiff makes his own selection while the defendant is compelled to appear by the process of the court having jurisdiction of his person. But if a person whose property is attached, himself not amenable personally to the .court because beyond its jurisdiction, chooses to go of his Own accord' and submit himself personally to its jurisdiction, by appearing to the attachment, he is no more within the reason and equity of the statute than the plaintiff is. Indeed, as respects the object and spirit of the act, he is in fact, though not in name, the plaintiff. And it is the substance and not the name that is to be regarded when- the terms of a statute are sought to be perverted to defeat the end in view iu its enactment.
I think, therefore, that if there were no other ground for overruling the motion for removal, the voluntary act of the defendant in going into the State court and submitting himself to its jurisdiction, by appearing to the attachment, was a complete waiver of the privilege which he would have had if he had been compelled to appear against his will by the mandate of the court..
In the case of Pollard vs. Dwight, 4 Cranch, 421, the defendant having without objection obtained a removal of the cause from the State court to the Federal court; .afterwards, [194]*194when judgment was rendei’ed against him in the court of • his choice, appealed to the supreme court of the United States and there alleged the want of jurisdiction in the Federal courts over foreign attachments, as a ground to defeat the jurisdiction of the very courts he had himself invoked. The other side which might more properly have objected made no such objection.
The court in that case overruled the objection, saying that the appearance of the defendant made the proceeding personal as to him, and such was unquestionably true. .
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Brown, President.
This was a foreign attachment, under the statute, by the plaintiff, John Bell, against the Merchants’ and Mechanics’ Bank of Wheeling, and the absent defendant Samuel M. Bell, to attach in the hands of the bank some 28,700 dollars, due from said bank to said ab[191]*191sent defendant. The process was executed on the bank and an order .of publication awarded and duly executed against the absent defendant.
In this state of the -case the absent defendant might appear at rules and do what was necessary to protect his interests. By the 13th section, chapter 151, Code of 1860, he might release from the attachment -the estate attached by giving bond with condition to perform the judgment or de.cree of the court. This bond to be taken by the officer serving the attachment.
And by the 15th section of same chapter, the circuit court might in vacation discharge the attachment on the defendant’s giving bond with security to pay or satisfy the decree, if any should be rendered for the plaintiff in the suit. And so the absent defendant did; for on the 1st day of August, 1865, he appeared before the judge of the said court in vacation, and on his motion the attachment in the cause was discharged, upon his giving bond and'security before the clerk of said court, conditioned according to law', which bond he thereupon gave, but made no motion then for the removal of said cause to the Federal court. After-wards, at the next term of said court, to wit: on the 31st day of October, 1865, the said defendant, Samuel M. Bell, presented in court his petition and bond for the removal of said cause from the State to the United States court. But the court, upon consideration of the motion, overruled the same, and then proceeded to decide the cause upon its merits. This refusal of the court to remove the cause is now assigned for error and is the first question to be determined in the cause. The right of removing a cause in any particular instance from the State court to the Federal court is a privilege and not a duty, and may be exercised or not at the option of the party defendant entitled to the privilege; biit to oust the general jurisdiction of the State court the party who would avail himself of the privilege should do it at the earliest opportunity, because like a plea to the jurisdiction or other.dilatory plea, it should not be used for delay, if delayed in the use.
[192]*192The facts stated show tbat.the absent defendant appeai’ed, gave bond and security to satisfy the decree of the court, and obtained a discharge of the fund attached, but made no motion for removal of the cause until the next term of the court, about three months after his first appearance. Here then was delay in the use of a privilege claimed which might not be used for delay. Redmond vs. Russell, 12 John., 153; Gibson vs. Johnson, Peter’s C. C. R., 44; State of Pennsylvania vs. Corbett, 3 Dallas, 467; also 1 Paige’s Chy Rep., 153. There is another fatal objection to the motion for removal, and that is, that the bond tendered by the applicant for the removal did not provide that he should appear in the cause in the Federal court. It simply provided “ for his en-. tering in such court — copies of said process against him;” but omitted the succeeding clause of the statute, “and also for his there appearing,” &c. As he was not a resident of West Virginia, but of Pennsylvania, and the subject matter a foreign attachment,.the Federal court in this State had no jurisdiction of his person nor of the subject, and it was therefore of the highest importance that he should enter his personal appearance and that the bond should provide for it if the case was to be removed, i
Again, one of the defendants was a resident of this State and therefore the Federal court had no jurisdiction on account of the parties plaintiff and part of the defendants being residents of the State, and consequently there could not be a removal on that ground. Ward vs. Arredondo, 1 Paine, 410; Conkling’s Treat., 154-5.
Nor could the defendant below have been sued in said court as he was not a resident in the said district, and if he Isad been he might have pleaded the fact of his non residence in abatement. It is not competent therefore for the defendant below to oust the State court of its rightful jurisdiction and give it to the Federal court which had none; neither over the subject, because it was a foreign attachment; Picquet vs. Swan, 5 Mason, 35; Toland vs. Sprague, 14 Peter, 300; nor over the person of the defendant, because he was a non resident. The attempt to oust the State court [193]*193is made under the 12th section of the judiciary act, which authorizes such removal .when the suit is brought by a citizen of the State in which the suit is against a citizen of another State.
Now it is manifest that the object of this act was to secure the defendant, who has no choice in the matter, against the supposed advantage the plaintiff might have in selecting the courts of his own State instead of the courts of the defendant’s State. If the plaintiff chose to go into the defendant’s State and sue him there the defendant had no right of removal. And it would seem but correlative if the de-fendent should go into the plaintiff’s State, and there voluntarily submit himself to the jurisdiction of the State court by appearing to a foreign attachment, that he too should not in such case have the privilege of removal.
The plaintiff makes his own selection while the defendant is compelled to appear by the process of the court having jurisdiction of his person. But if a person whose property is attached, himself not amenable personally to the .court because beyond its jurisdiction, chooses to go of his Own accord' and submit himself personally to its jurisdiction, by appearing to the attachment, he is no more within the reason and equity of the statute than the plaintiff is. Indeed, as respects the object and spirit of the act, he is in fact, though not in name, the plaintiff. And it is the substance and not the name that is to be regarded when- the terms of a statute are sought to be perverted to defeat the end in view iu its enactment.
I think, therefore, that if there were no other ground for overruling the motion for removal, the voluntary act of the defendant in going into the State court and submitting himself to its jurisdiction, by appearing to the attachment, was a complete waiver of the privilege which he would have had if he had been compelled to appear against his will by the mandate of the court..
In the case of Pollard vs. Dwight, 4 Cranch, 421, the defendant having without objection obtained a removal of the cause from the State court to the Federal court; .afterwards, [194]*194when judgment was rendei’ed against him in the court of • his choice, appealed to the supreme court of the United States and there alleged the want of jurisdiction in the Federal courts over foreign attachments, as a ground to defeat the jurisdiction of the very courts he had himself invoked. The other side which might more properly have objected made no such objection.
The court in that case overruled the objection, saying that the appearance of the defendant made the proceeding personal as to him, and such was unquestionably true. . The case on its merits was glaringly erroneous and unjust to the defendant, and the court would very naturally be inclined to give relief where the merits of the cause demanded it, and the appellee raised no objection to the jurisdiction, and where the appellant who had invoked its action ought not to be heard to deny its authority.
The distinction between that case and this is, that the appellant in that case who objected to the power of removal had himself obtained the removal, while the other party made no such objection, either to the removal or to the right of removal.
Here, however, the objection comes from the other side, and from the party that is not estopped by his own acts to make it.
I think, therefore, that the application for removal was properly overruled by the circuit court.
And on the merits of the case I see no good reason to disturb the decree of the court below, since the law of the case is plain and simple, and the facts and circumstances of the case would not justify this court in reversing the conclusions arrived at by the court below.
I am of opinion, therefore, to affirm the decree of the circuit court with costs to the appellee.
Maxwell, J., concurred.
Decree affirmed.