BOTHSCHILD v. MATTHEWS. 9
moval does not sufficiently supply the necessary facts. That peti-
tion, so far as it alleges matters of fact, if it is treated as a plea of
justification by the defendant in his official capacity, under a writ of
attachment, is substantially and fatally defective. ¤ Such a plea, to be ‘
good, being in confession and avoidance, must admit distinctly and
unequivocally the facts charged in the declaration and sought to be `
justified. Here the justification of the seizing and taking possession
of the books of account, which is the wrong and trespass complained q
of, is contingent: "if such seizure and possession actually occurred."
It may, therefore, well be—at least,it is consistent with this petition+
that the defendant expects to prevail, and may prevail, upon a plea
of not guilty, by proof showing that the allegations of the declaration
are not true. In confirmation of this possibility it is further stated ·
in the petition "that in the commission of the acts and grievances
mentioned and set forth in said declaration, if such occurred, your
petitioner, in so far as he can be charged with being a party thereto,
was acting solely in his capacity as said marshal, and under .and by
virtue of the laws of the United States," etc. ; and from that it may
he inferred that the acts and grievances mentioned may not have oc-
curred at all, or that, if they had occurred, the defendant could not
be charged with being a party thereto. And, in addition, the com-
mand of the writ of attachment is not set out nor stated so that it is
impossible to say whether it included the books off account alleged to
be taken, and therefore to determine whether that writ could be
pleaded as a justincation. It therefore does inet affirmatively ap-
pear upon the face of this petition that the decision of the case de-
pends upon any construction to be given to the constitution, or any
law of the United States. Indeed, the closing allegation of the peti-
tion is "that the defense of your petitioner in said cause distinctly
involves, among otherthings, the construction of the laws of the
United States," which is inconsistent with the conclusion that its de~
cision depends upon such construction; for it may be decided upon
some of these other things equally involved in it.
There is another consideration which seems to me is by itself con-
clusive of the question of removal. The right of removal depends
upon whether the case sought to be removed is one arising under the
constitution or laws of the United States; and whether it is one of
that character must appear from the record as existing at the time
of removal in the state court, including in proper cases the petition
for removal. Where there is nothing to show its character but —the
statement of the plaintiffs' cause of action, and the right of removal,
therefore, depends upon the case as made complete by the defense of
the defendant, that defense must be shown on the record, not merely
as a possible and competent defense, but one actually made or to be
made and relied on, and one which, therefore, necessarily imports into
the decision of the case the federal question which authorizes the
change of jurisdiction. When an issue has been made in the state