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14 Stat. 46.

moval may be

9. The right of removal from the state court into the circuit court of the United 11 May 1866 ? 3. States, provided in the fifth section of the act to which this is amendatory, (a) may be exercised after the appearance of the defendant and the filing of his plea or other defence When right of rein said court, or at any term of said court subsequent to the term when the appear- exercised." ince is entered, and before a jury is empannelled to try the same; but nothing herein contained shall be held to abridge the right of such removal after final judgment in the state court, nor shall it be necessary in the state court to offer or give surety for the filing of copies in the circuit court of the United States; but, on the filing of the petition, verified as provided in said fifth section, the further proceedings in the state court shall cease, and not be resumed until a certificate under the seal of the circuit court of the United States, stating that the petitioner has failed to file copies in the said circuit court, at the next term, is produced.

Ibid. 4.

court to be void.

10. If the state court shall, notwithstanding the performance of all things required for the removal of the case to the circuit court aforesaid, proceed further in said cause Subsequent proor prosecution before said certificate is produced, then, in that case, all such further ceedings in state proceedings shall be void and of none effect; and all parties, judges, officers and other persons, thenceforth proceeding thereunder, or by color thereof, shall be liable in damages therefor to the party aggrieved, to be recovered by action in a court of the state having proper jurisdiction, or in a circuit court of the United States for the district in which such further proceedings may have been had, or where the party, officer or other person, so offending, shall be found; and upon a recovery of damages in either court, the party plaintiff shall be entitled to double costs.

Ibid. § 5.

circuit court.

11. It shall be the duty of the clerk of the state court to furnish copies of the papers and files in the case to the party so petitioning for the removal; and upon the refusal How record to be or neglect of the clerk to furnish such copies, the said party may docket the case in certified to the the circuit court of the United States; and thereupon said circuit court shall have jurisdiction therein, and may, upon proof of such refusal or neglect of the clerk of the state court, and upon reasonable notice being given to the plaintiff, require him to file a declaration or petition therein; and upon his default may order a nonsuit, and dismiss the case at the costs of the plaintiff, which dismissal shall be a bar to any further suit touching the matter in controversy.

14 Stat. 171.

causes against

12. In any case, civil or criminal, where suit or prosecution shall be commenced in 13 July 1866 2 67. any court of any state against any officer of the United States, appointed under or acting by authority of the act entitled "An act to provide internal revenue to support Removal of the government, to pay interest on the public debt, and for other purposes," passed officers of interJune 30th 1864, or of any act in addition thereto or in amendment thereof, or against nal revenue. any person acting under or by authority of any such officer, on account of any act done under color of his office, or against any person holding property or estate by title derived from any such officer, concerning such property or estate, and affecting the validity of this act or acts of which it is amendatory, it shall be lawful for the defendant, in such suit or prosecution, at any time before trial, upon a petition to the circuit court of the United States in and for the district in which the defendant shall have been served with process, setting forth the nature of said suit or prosecution, and verifying the said petition by affidavit, together with a certificate, signed by an attorney or counsellor at law of some court of record of the state in which such suit shall have been commenced, or of the United States, setting forth that, as counsel for the petitioner, he has examined the proceedings against him, and carefully inquired into all the matters set forth in the petition, and that he believes the same to be true; which petition, affidavit and certificate shall be presented to the said circuit court if in session, and if not, to the clerk thereof, at his office, and shall be filed in said office, and the cause shall thereupon be entered on the docket of said court, and shall be thereafter proceeded in as a cause, originally commenced in that court. And it shall be the duty of the clerk of said court, if the suit were commenced in the court below by summons, to issue a writ of certiorari to the state court, requiring said court to send to the said Certiorari. circuit court the record and proceedings in said case; or if it were commenced by capias, he shall issue a writ of habeas corpus cum causa, a duplicate of which said writ Habeas corpus. shall be delivered to the clerk of the state court, or left at his office, by the marshal of the district, or his deputy, or some person duly authorized thereto; and thereupon it shall be the duty of the said state court to stay all further proceedings in such cause, and the said suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be deemed and taken to be moved to the said circuit court, and any further proceedings, trial or judgment therein in the state court shall be wholly null and void. And if the defendant in any such suit be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum (a) Supra 6.

13 July 1866.

to be dissolved.

causa, to take the body of the defendant into his custody, to be dealt with in the said cause according to the rules of law and the order of the circuit court, or of any judge thereof Attachments not in vacation. All attachments made and all bail and other security given upon such suit or prosecution shall be and continue in like force and effect as if the same suit or prosecution had proceeded to final judgment and execution in the state court; and if, upon removal of any such suit or prosecution, it shall be made appear to the said circuit court, that no copy of the record and proceedings therein in the state court can be obtained, it shall be lawful for said circuit court to allow and require the plaintiff to proceed de novo, and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said circuit court; and, on failure of so proceeding, judgment of nolle prosequi may be rendered against the plaintiff, with costs for the defendant: Provided, That an act entitled "An act further to provide for the collection of duties on imports," passed March 2d 1833, shall not be so constructed as to apply to cases arising under an act entitled "An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes," passed June 30th 1864, or any act in addition thereto or in amendment thereof, nor to any case in which the validity or interpretation of said act or acts shall

1864.

Ibid. 68.

be in issue.

13. The 50th section of an act passed June 30th 1864, entitled "An act to provide Repeal of act of internal revenue to support the government, to pay interest on the public debt, and for other purposes," is hereby repealed: (a) Provided, That any case which may have been removed from the courts of any state under said 50th section to the courts of the United States, shall be remanded to the state court from which it was so removed, with all the records relating to such cases, unless the justice of the circuit court of the United States in which such suit or prosecution is pending shall be of opinion that said case would be removable from the court of the state to the circuit court under and by virtue of the 67th section of this act. And in all cases which may have been removed from any court of any state under and by virtue of said 50th section of said act of June 30th 1864, all attachments made, and all bail or other security given upon such suit or prosecution, shall be and continue in full force and effect until final judg ment and execution, whether such suit shall be prosecuted to final judgment in the circuit court of the United States, or remanded to the state court from which it was removed.

5 Feb. 1867 1. 14 Stat. 385.

If defendant be in custody,

issue.

14. Whenever in any suit or prosecution which has been or may be commenced in any state court, and which the defendant is authorized to have removed from said court to the circuit court of the United States, under and by virtue of the provisions of "An habeas corpus to act relating to habeas corpus, and regulating judicial proceedings in certain cases," approved March 3d 1863, or by virtue of an act amendatory thereof, approved May 11th 1866, and all the acts necessary for the removal of said cause to the circuit court shall have been performed, and the defendant in any suit shall be in actual custody on process issued by said state court, it shall be the duty of the clerk of the said circuit court of the United States to issue a writ of habeas corpus cum causa; and it shall be the duty of the marshal, by virtue of the said writ of habeas corpus, to take the body of the defendant into his custody to be dealt with in said circuit court according to rules of law, and the orders of the said court, or of any judge thereof in vacation; and he shall file a duplicate copy of said writ of habeas corpus with the clerk of the state court in which said suit was commenced, or deliver said duplicate to the clerk of said court; and all attachments made, and all bail and other security given in any suit or prosecution which has been or shall be removed from any state court to the circuit court of the United States, in pursuance of law, shall be and continue in like force and effect as if the same suit had proceeded to final judgment and execution in the

27 July 1866 2 1. 14 Stat. 306.

be removed from state to circuit

several defend

state court.

15. If in any suit already commenced, or that may hereafter be commenced, in any state court against an alien, or by a citizen of the state in which the suit is brought When suits may against a citizen of another state, (b) and the matter in dispute exceeds the sum of five hundred dollars, (c) exclusive of costs, to be made to appear to the satisfaction of the courts, by one of court, a citizen of the state in which the suit is brought is or shall be a defendant, and if the suit so far as relates to the alien defendant, or to the defendant who is the citizen of a state other than that in which the suit is brought, is or has been instituted or prosecuted for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy, so far as it concerns him, Prentiss v. Brennan, 2 Blatch. C. C

ants.

162.

(a) Pending causes fell with the repeal of the act. Insurance (b) See 1 vol. 128, note d. Co. v. Ritchie, 5 Wall. 541. Except where the circuit judge was of opinion that the case would be removable under the act in the (c) See 1 vol. 128, note e. text. Philadelphia v. The Collector, 5 Wall. 720.

entered.

to be dissolved

without the presence of the other defendants as parties in the cause, then and in every 27 July 1866. such case the alien defendant, or the defendant who is a citizen of a state other than that in which the suit is brought, may, at any time before the trial or final hearing of the cause, (a) file a petition for the removal of the cause as against him into the next circuit court of the United States to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day Security to be of its session, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in said cause affecting or concerning him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein; and it shall be thereupon the duty of the state court to accept the surety and proceed no further in the cause as against the defendant so applying for its removal; (b) and any bail that may have been originally taken shall be discharged, and the said copies being entered as aforesaid in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process against the defendant who shall have so filed a petition for its removal as above provided. (c) And any attachment of the goods or estate Attachment not of the defendant by the original process shall hold the goods or estate so attached to by removal. answer the final judgment, in the same manner as by the laws of such state they would have been holden to answer final judgment had it been rendered by the court in which the suit commenced; and any injunction granted before the removal of the cause against the defendant applying for its removal shall continue in force until modified or dissolved by the United States court into which the cause shall be removed; and any bond of indemnity or other obligation given by the plaintiff upon the issuing or granting of any attachment, writ of injunction, or other restraining process against the defendant petitioning for the removal of the cause, shall also continue in full force and may be prosecuted by the defendant and made available for his indemnity in case the attachment, injunction, or other restraining process be set aside or dissolved, or judgment be rendered in his favor, in the same manner and with the same force and effect as if such injunction, attachment or restraining process had been granted, and such bond had been originally filed or given in the court to which the cause is removed. And such removal of the cause, as against the defendant petition- Effect of removal ing therefor, into the United States court, shall not be deemed to prejudice or take by one of several away the right of the plaintiff to proceed at the same time with the suit in the state court as against the other defendants, if he shall desire to do so. And the copies of all pleadings filed or entered as aforesaid in the United States court by the defendant applying for the removal of the cause, shall have the same force and effect in every respect and for every purpose as the original pleadings would have had by the laws and practice of the courts of such state if the cause had remained in the state court. (d) 16. The provisions of the second, third and fourth sections of the act approved 28 July 1866 ? 8. March 2d 1833,(e) entitled “An act further to provide for the collection of duties on imports," and of the twelfth section of the act approved March 3d 1863, (g) entitled Actions against "An act to prevent and punish frauds upon the revenue, to provide for the more cer- doned property tain and speedy collection of claims in favor of the United States, and for other may purposes," shall be taken and deemed as extending to and embracing all cases arising or which may have heretofore arisen, and all suits and prosecutions heretofore brought and now pending, or which may hereafter be brought against any officer of the United States or other person by reason of any acts done or proceedings had by such officer or other person, under authority or color of the act approved March 12, 1863,(h) entitled "An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts within the United States," or the act approved July 2, 1864, (i) entitled "An act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary states, and to provide for the collection of captured and abandoned property, and the prevention of frauds in (a) Where a state county court has given judgment, which has been reversed by the supreme court of the state, and judgment entered, in effect, ordering a venire de novo, the cause has not reached final hearing or trial, and a motion to remove to the circuit court is in time. Akerly v. Vilas, 17 Am. L. R. 229.

(b) After making an order for the removal of a cause to the circuit court, the state court has no jurisdiction to allow an appeal from such order, and enjoin its clerk from certifying the record, pending the appeal. Akerly v. Vilas, 17 Am. L. Ř. 229. (c) The plaintiff cannot remove the cause, though the defence, under the state law, become, by a discontinuance of the original suit, a proceeling which may go on to trial and judgment, as if, in some sense, an original one. West v. Aurora City, 6 Wall. 139. On the removal of a suit brought, in his own name, by a cestui que ue, or equitable plaintiff, under the state law, he may remain plaintiff on record in the circuit court, though he could not have sued therein in his own name. Thompson v. Central Ohio Railroad Co., 6 Wall. 134. Where a suit depending on the

defendants.

14 Stat. 329.

takers of aban

be removed.

right construction of a statute of the United States, is removed to the circuit court, it cannot dismiss and remand the cause, on motion, on the ground that the statute is unconstitutional and void; that is a question affecting the merits, and to be determined on the trial. Mayor of Nashville v. Cooper, 6 Wall. 247. A case removed from a state court stands on the same footing. in respect to the recovery of costs, as if commenced in the circuit court. Coggill v. Lawrence, 2 Blatch. C. C. 304.

(d) If the clerk of the court refuses to certify the record, the circuit court will, on motion, allow the same to be supplied by copies or affidavits, under the act of 1833, 1 vol. 129, pl. 21. Akerly v. Vilas, 17 Am. L. R. 229. A mandamus will not lie to the state court, to compel a removal. Ex parte Cromie, 1 Chicago Leg. News 361.

(e) 1 vol. 128-9. pl. 18, 20, 21.
(g) Tit. "District Attorneys" 2.
(h) 12 Stat. 820.

(i) 13 Stat. 375.

28 July 1866.

If the acts were of the executive.

states declared in insurrection:" Provided, That such acts done or proceedings had under the two acts last aforesaid, or under color thereof, shall have been done and had done by direction under the authority or by the direction of the executive government of the United States: (a) And provided further, That when a recovery shall have been, or shall hereafter be had in any such suit or prosecution brought, or which may hereafter be brought, as aforesaid, the payment of the amount recovered, as provided for in the said twelfth section of the act approved March 3d 1863, (b) aforesaid, shall be made out of the moneys arising and obtained from the proceeds of sales and leases and fees collected and paid over to the government under the two acts approved March 12, 1864, (c) and July 2d 1864, (d) aforesaid, in relation to captured and abandoned property.

2 March 1867

14 Stat. 558.

Certain actions

1.

may be removed prejudice, &c.,

justice cannot be had in the state

court.

17. That the act entitled "An act for the removal of causes in certain cases from state courts," approved July 27, 1866, (e) be and the same is hereby amended as follows: That where a suit is now pending or may hereafter be brought in any state when from local court, in which there is controversy between a citizen of the state in which the suit is brought and a citizen of another state, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, such citizen of another state, whether he be plaintiff or defendant, if he will make and file in such state court an affidavit stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court, may, at any time before the final hearing or trial of the suit, (g) file a petition in such state court for the removal of the suit into the next circuit court of the United States to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of all process, pleadings, depositions, testimony and other proceedings in said suit, and doing such other appropriate acts, as by the act to which this act is amendatory, are required to be done upon the removal of a suit into the United States court: and it shall be, thereupon, the duty of the state court to accept the surety and proceed no further in the suit. And the said copies being entered as aforesaid in such court of the United States, the suit shall there proceed in the same manner as if it had been brought there by original process; and all the provisions of the act to which this act is amendatory respecting any bail, attachment, injunction or other restraining process, and respecting any bond of indemnity or other obligation given upon the issuing or granting of any attachment, injunction or other restraining process, shall apply with like force and effect in all respects to similar matters, process or things in the suits for the removal of which this act provides.

27 July 1868 2. 15 Stat. 227.

corporations may be removed.

18. Any corporation, or any member thereof, other than a banking corporation organized under a law of the United States, and against which a suit at law or in equity Actions against has been or may be commenced in any court other than a circuit or district court of the United States, for any liability or alleged liability of such corporation, or any member thereof as such member, may have such suit removed from the court in which it may be pending, to the proper circuit or district court of the United States, upon filing a petition therefor, verified by oath, either before or after issue joined, stating they have a defence arising under or by virtue of the constitution of the United States, or any treaty or law of the United States, and offering good and sufficient surety for enterring in such court on the first day of its session, copies of all process, pleadings, depositions, testimony and other proceedings in said suit, and doing such other appropriate acts as are required to be done by the act entitled "An act for the removal of causes in certain cases from state courts," approved July 27th 1866; (h) and it shall be thereupon the duty of the court to accept the surety and proceed no further in the suit; and the said copies being entered as aforesaid in such court of the United States, the suit shall then proceed in the same manner as if it had been brought there by original process, and all the provisions of said act in this section referred to, respecting any bail, attachment, injunction or other restraining process, and respecting any bond of indemnity or other obligation given upon the issuing or granting of any attachment, injunction or other restraining process, shall apply with like force and effect in all respects to similar matters, process or things in the suits for the removal of which this act provides.(i) 19. All the provisions of section eight of the act of July 28, 1866,(k) entitled "An act to protect the revenue, and for other purposes," and the forms and modes by that

27 July 1868 2 1. 15 Stat. 243.

[blocks in formation]

(g) See Akerly v. Vilas, 17 Am. L. R. 229.
(h) Supra 15.

(i) An action against a foreign corporation, commenced by
summons, served by publication, and by attachment of the defend-
ant's goods, is removable to the circuit court. Barney v. Globe
Bank, 11 Am. L. R. 221. A suit against a foreign corporation
may be removed, though not originally cognisable in the circuit
court. Bliven v. New England Screw Co., 3 Blatch. C. C. 111.
(k) Supra 16.

officers during

may be removed.

section and the twelfth section of the act of March 3, 1863, (a) therein referred to, 27 July 1868. prescribed for prosecuting suits, withholding executions and paying judgments against Suits for acts officers of the United States, or other persons engaged in executing the acts relative to done by public captured and abandoned property, shall extend and be applied to all suits and pro- the rebellion ceedings (except those in behalf of the United States) which have been brought, or may hereafter be brought, against any officer or agent of the government, civil or military, for acts done during the rebellion while acting by virtue or under color of his office or employment; and every defendant in such suit or proceeding having made full defence thereto, and having notified the attorney-general of the United States to appear and defend the same, shall be entitled to the full benefit and protection provided in said section for officers and agents of the government engaged in the collection of the public revenue; and any defendant being aggrieved by any order or direction, certificate, ruling or judgment of any court made or had in any such proceeding, may except thereto and appeal therefrom to the supreme court of the United States, and have the questions arising there heard and determined.

15 Stat. 267.

Act of 1863 ex

tended to com

mon carriers in certain cases.

20. That the provisions of an act entitled "An act relating to habeas corpus and 22 Jan. 1869 & 1. regulating judicial proceedings in certain cases," approved March 3d 1863,(b) so far as the same relate to the removal of causes from the state to the federal courts, be and the same are hereby declared to extend to any suit or action at law, or prosecution, civil or criminal, which has been or shall be commenced in any state court against the owner or owners of any ship or vessel, or of any railway, or of any line of transportation, firm, or corporation engaged in business as common carriers of goods, wares or merchandise, for any loss or damage which may have happened to any goods, wares or merchandise whatever, which shall have been delivered to any such owner or owners of any ship or vessel, or any railway, or of any line of transportation, firm, or corporation, engaged in business as common carriers, where such loss or damage shall have been occasioned by the acts of those engaged in hostility to the government of the United States during the late rebellion, or where such loss or damage shall have been occasioned by any of the forces of the United States, or by any officer in command of such forces: Provided, That this act shall not be construed to affect any contract of insu- Not to affect war rance for war risks, which may have been made with reference to any goods, wares or merchandise, which shall have been so destroyed.

III. MISCELLANEOUS PROVISIONS.

risks.

12 Stat. 768.

21. Whenever the judge of the supreme court for any circuit, from disability, 3 March 1863 1. absence, the accumulation of business in the circuit court in any district within his circuit, or from his having been of counsel or being interested in any case pending in In case of disability, any other such circuit court, or from any other cause, shall deem it advisable that the circuit circuit judge may court in such district shall be holden by the judge of any other circuit, he may request, hold the court. in writing, the judge of any other circuit to hold the circuit court in such district, during a time to be named in such request; and such request shall be entered upon the journal of the circuit court so to be holden. And thereupon it shall be lawful for the judge so requested to hold the circuit court in such district, and to exercise all the powers of the judge of such circuit within and for such district during the time named in such request.(c)

Ibid. & 2.

ordered.

22. The judge of any circuit may order any civil cause certified into any circuit court within his circuit from any court of the United States, to be certified back to the Retransfer of court whence it came; and in such case such cause shall be proceeded in by such causes may be court, in all respects, as if the same had not been certified from it: Provided, That if from any cause it shall be improper for the judge of such court to try any such cause so certified back, the same shall be tried by some other judge holding such court, pur- How tried. suant to the provisions of this act. Whenever, by reason of death or resignation, there shall be no judge of any circuit, the chief justice of the supreme court of the United States may make the requests herein provided for, which shall be operative until such circuit shall be assigned to another judge. In case of a vacancy in the office of marshal or district attorney in any circuit, the judge of such circuit may fill How vacancies in such vacancy, and the person so appointed shall serve until an appointment shall or district attorbe made by the president, and the appointee has duly qualified, and no longer; ney may be tem porarily filled. and the marshal so appointed shall give bond as if appointed by the president, and the bond shall be approved by such judge. The appointment so made shall be in writing, and such writing shall be filed in the clerk's office of the circuit court, and a copy thereof shall be entered upon the journal of such court. The clerk of every Bonds of clerks court shall give bond in such sum as may be fixed by the court, with sureties to be (a) Tit. "District Attorneys," 2. (b) Supra 6.

office of marshal

and marshals.

(c) This does not repeal the act 28 February 1839. Supervisors v. Rogers, 7 Wall. 175.

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