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ance and entering special bail need appear only in those cases where special bail has in fact been required.15 So under the law of Pennsylvania, in an action of foreign attachment the bond need not be conditioned for the entering of such bail.16 If defendant is held to bail the amount of the bond must equal the bail. But an attachment bond is not "special bail.”17 The sureties on the bail bond given in the State court are discharged by the removal.18

[f] Sufficiency, and justification of sureties.

The State court may investigate the value of the sureties, and judge of their sufficiency. It must determine whether the surety is "good and sufficient," may determine the amount, and whether it should be joint or joint and several.3 The State court may require the sureties to justify." But the sureties are not bound to justify until a rule to do so is laid upon them.5 The absence of any acknowledgment or proof of the execution of the bond is a matter of practice for the State court to pass upon. Where the bond presented is apparently ample, the State court cannot arbitrarily refuse to receive it, or refuse to remove without giving an opportunity to correct it, and make it ample. It cannot reject the security without assigning a cause; 8 nor can it refuse to accept it, except on the ground of insufficiency. If all the requisites exist, the State court must accept the surety and proceed no farther.10 The surety is not bound by the subsequent adjudication against the principal in a State court. If there is one good and sufficient surety the fact that the other is an attorney not competent to act as surety gives the State court no right to retain jurisdiction.11

15 Burck v. Taylor, 39 Fed. 581, 584. See Cooke v. Seligman, 7 Fed. 269, 17 Blatchf. 452, where provision of bond that defendant "do or cause to be done such other and appropriate acts" as by law were required, was held the equivalent.

16 Preston v. McNeil L. Co. 143 Fed. 555.

17 Jones v. Seward, 17 Abb. Pr. 377.

18 Ramsay v. Coolbaugh, 13 Iowa, 164; Davis v. South Carolina, 107 U. S. 601, 27 L. ed. 574, 2 Sup. Ct. Rep. 636.

iOrosco v. Gagliardo, 22 Cal. 83; Suydam v. Smith, 1 Denio, 263.

Fitz v. Hayden, 4 Martin N. S. 653.

3 Mix v. Andes Ins. Co. 74 N. Y. 53, 30 Am. Rep. 260.

Howard v. Southern R. R. 122 N. C. 945, 29 S. E. 778; Taylor v. Shew, 54 N. Y. 77.

5 Empire Trans. Co. v. Richards, 88 Ill. 404; Cleveland etc. R. R. v. Monaghan, 140 Ill. 484, 30 N. E. 869; Miller v. Finn, 1 Neb. 254.

6 Cooke v. Seligman, 7 Fed. 263, 17 Blatchf. 452.

7Taylor v. Shew, 54 N. Y. 75.

8 Yulee v. Vose, 99 U. S. 539, 25 L. ed. 355; Taylor v. Shew, 54 N. Y. 75; Mix v. Andes Ins. Co. 74 N. Y. 53, 30 Am. Rep. 260.

9 Yulee v. Vose, 99 U. S. 539, 25 L. ed. 355, S. C. 64 N. Y. 449; Fisk v. Union Pac. R. Co. 6 Blatchf. 362, Fed. Cas. No. 4,827; Mix v. Andes Ins. Co. 74 N. Y. 53, 30 Am. Rep. 260.

10 De Camp v. N. J. L. M. Ins. Co. 2 Sweeney, 481.

4Weed Sew. Mach. Co. v. Smith, 11 Removal Cases, 100 U. S. 457, 25 71 Ill. 204; Darst v. Bates, 51 Ill. L. ed. 599. See Chambers v. Mc439; Herndon v. Aetna Ins. Co. 107 Dougal, 42 Fed. 694. N. C. 195, 12 S. E. 240, 10 L.R.A. 53.

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§ 1138. State court should receive bond and proceed no further. It shall then be the duty of the State court[] to accept said petition and bond, [e]-[b] and proceed no further in such suit [e]-[g] and the said copy being entered as aforesaid in the said circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court.

Part of § 3, act Mar. 3, 1875, c. 137, 18 Stat. 470, as amended Mar. 3, 1887, c. 373, 24 Stat. 552 as corrected Aug. 13, 1888, c. 866, § 1, 25 Stat. 433, U. S. Comp. Stat. 1901, p. 510.

[a] History of statutory provision.

As originally enacted in 1875 this portion of the section contained also the proviso "and any bail that may have been originally taken shall be discharged." The act of 1875 superseded a clause of R. S. § 639 providing that "It shall thereupon be the duty of the State court to accept the surety and to proceed no further in the cause against the petitioner, and any bail that may have been originally taken shall be discharged.”

[b] Scope of inquiry open to State court.

The State court can only inquire whether as a matter of law on the face of the record, including the declaration or complaint petition and bond, there exists a right of removal.16 It has a right to satisfy itself as to the sufficiency of the security offered; 17 and that the petition is filed in time.18 But averments of the petition must be taken as true,19 and it has no discretion to refuse acceptance of a bond with good and sufficient surety.20 In other words while the State court as well as the circuit court may pass upon the questions of law, all questions of fact are to be decided by the circuit court.2 The State court cannot deny a right of removal upon the pretended ground of vagueness in the petition.3

[c] Presentation and acceptance of petition and bond.

It is the filing of petition and bond that is jurisdictional and required to

16 Carson v. Hyatt, 118 U. S. 287, 30 L. ed. 167, 6 Sup. Ct. Rep. 1050; Burlington. etc. Ry. v. Dunn, 122 U. S. 515, 30 L. ed. 1159, 7 Sup. Ct. Rep. 1262.

17 Penn Co. v. Bender, 148 U. S. 260, 37 L. ed. 442, 13 Sup. Ct. Rep. 591.

18 Kansas, etc. R. R. v. Daughtry, 138 U. S. 303, 34 L. ed. 963, 11 Sup. Ct. Rep. 306.

19 Southern Ry. v. Hudgins, 107 Ga. 337, 33 S. E. 443.

20Removal Cases, 100 U. S. 472, 25 L. ed. 593.

1 Walker v. O'Neill, 38 Fed. 374: Springer v. Howes, 69 Fed. 849. But see Beadleston v. Harpending, 32 Fed. 644.

2 Kansas City R. R. v. Daughtry, 138 U. S. 303, 34 L. ed. 963. 11 Sup. Ct. Rep. 306; Stone v. South Carolina, 117 U. S. 432, 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Postal Co. v. So. Ry. 88 Fed. 805; Dow v. Bradstreet Co. 46 Fed. 828.

3 Marshall v. Holmes, 141 U. S. 601, 35 L. ed. 870, 12 Sup. Ct. Rep. 62.

be within the statutory time.6 The action of the State court in accepting them may be later. Acceptance is not in any sense a condition precedent to the transfer of jurisdiction. As it is made the State court's duty to accept proper petition and bond, any formal acceptance is not prerequisite to the vesting of the circuit court's jurisdiction:8 and refusal to accept does not prevent its jurisdiction from terminating.9 Refusal to accept a bond that is in fact good and sufficient will not prevent the ousting of the State court's jurisdiction.10 However it is correct practice and in accordance with the rules of comity to obtain the State court's formal acceptance of the petition and bond. 11 The requirement of the act that the State court accept the petition and bond seems to imply that the party is to present them to the court besides filing them.12 The court is not to be deprived of the opportunity to pass upon the sufficiency of the petition and bond, by leaving them with the clerk and taking a transcript of the record forthwith.13 By comity at least, the State court or the judge in vacation,14 should be given opportunity to pass upon the petition and bond.15 Its acceptance and order of removal thereon, relate back to the filing of petition and bond.16 Moreover there are advantages in formally presenting the petition and bond and obtaining their acceptance and an order of removal. Defects may be pointed out which the party can remedy by amendments: and the fact that the State court has formally accepted the petition and bond, places the removing party in a better position to enjoin the State court's proceedings,17 or to obtain amendment in case defects are made the basis of objection in the circuit court.18 On the other hand if the State court decides the question of law involved adversely and declines to permit removal, the parties chance of getting an opposite decision in the circuit court is impaired.19 It is sufficient presentation if the attention of the

Ante, § 1136.

Burck v. Taylor, 39 Fed. 581; Noble v. Mass. Ben. Ass. 48 Fed. 337. See Waters v. Cent. T. Co. 126 Fed. 469.

* Brigham v. Thompson L. Co. 55 Fed. 881; State v. Coosaw M. Co. 45 Fed. 804, 811; Brown v. Murray etc. & Co. 43 Fed. 614; Miller v. Tobin, 18 Fed. 609, 9 Sawy. 401. But compare Fox v. So. Ry. Co. 80 Fed. 948; La Page v. Day, 74 Fed. 977; Kinne v. Lant, 68 Fed. 438.

Shedd v. Fuller, 36 Fed. 609. 10 Removal Cases. 100 U. S. 472, 25 L. ed. 599; Noble v. Mass. Ben. Assn. 48 Fed. 337.

11 Brown v. Murray Nelson & Co. 43 Fed. 616; Noble v. Mass. Ben. Assn. 48 Fed. 337; Fox v. So. Ry. Co. 80 Fed. 948; Osgood v. Chicago, etc. Ry. Co. 6 Biss. 348, Fed. Cas. No. 10,604.

12 See Scoutt v. Keck, 73 Fed. 906. 907, 20 C. C. A. 103; Coker v. Mona ghan Mills, 110 Fed. 806.

13 Hall v. Chattanooga, 48 Fed. 601; Fox v. So. Ry. Co. 80 Fed. 948: La Page v. Day, 74 Fel. 977; Brown v. Murray Nelson, 43 Fed. 614, 616.

14Shedd v. Fuller, 36 Fed. 609: Roberts v. R. R. 45 Fed. 433.

15 Probst v. Cowen, 91 Fed. 931. State v. Coosaw M. Co. 45 Fed. 811. 812; Hall v. Chattanooga, 48 Fed. 600.

16 Miller v. Tobin, 18 Fed. 613, 9 Sawy. 401.

17 Coker v. Monaghan Mills, 110 Fed. 806.

18 See ante, § 113 [d].

19 See Springer v. Howes, 69 Fed.

851.

State court or judge is drawn to the petition and bond specifically though not formally.20

[d] Necessity for order of removal.

No formal order for the removal of the cause is necessary; 4 and a case is removed though an order is not passed.5 Yet it is usual to obtain an order accepting petition and bond and directing removal. It is a convenient mode of manifesting the State court's action in the premises, and relates back to the filing of the petition and bond.?

[e] State jurisdiction terminated by filing proper petition and bond.

No adjudication by the State court, of the sufficiency of the petition and bond are necessary.10 If they are in fact sufficient and make out a removable case and are filed within the statutory time, the jurisdiction of the State court thereupon ceases and the cause is removed notwithstanding the State court's refusal to allow it.11 The State court is without jurisdiction to proceed; 12 even though the record is not yet filed in the circuit court.13 Nor will failure to file the record in the circuit court in due time, restore the jurisdiction.14 An order by the State court granting the removal is unnecessary to terminate the State court's jurisdiction; 15 and if a removable case has been duly made to appear by proceedings taken in due conformity to the Federal statutes, the circuit court's jurisdiction has attached and no order by the State court in the premises can effect it.16 It is equally true, however, that the State court is not bound to re

20See Probst v. Cowen, 91 Fed. 931; State v. Coosaw M. Co. 45 Fed. 811, 812: Chambers v. McDougal, 42 Fed. 696; Monroe v. Williamson, 81 Fed. 983.

4 Loop v. Winters, 115 Fed. 362; La Page v. Day, 74 Fed. 977; Eisenmann v. Delemar's Nev. G. M. Co. S7 Fed. 248; Lund v. Chic. R. I. & P. R. Co. 78 Fed. 385: Wilson v. W. U. Tel. Co. 34 Fed. 561; Osgood v. C. D. & V. R. Co. 6 Biss. 330. Fed. Cas. No. 10,604; Connor v. Scott, 4 Dill. 242. Fed. Cas. No. 3.119; Lalor v. Dunning. 56 How. Pr. 209; Hatch v. Chicago R. I. & P. R. Co. 6 Blatchf. 105, Fed. Cas. No. 6,204.

5 Commercial Sav. Bank v.

Cor

10 Penn. Co. v. Bender, 148 U. S. 260, 37 L. ed. 442, 13 Sup. Ct. Rep. 591.

Marshall V.

11 Insurance Co. v. Morse, 20 Wall. 454, 22 L. ed. 365; Crehore v. Ohio Ry. 131 U. S. 243, 33 L. ed. 144, 9 Sup. Ct. Rep. 692: Holmes, 141 U. S. 595, 35 L. ed. 872, 12 Sup. Ct. Rep. 63; State v. Coosaw M. Co. 45 Fed. 804; Monroe v. Williamson, 81 Fed. 977; Boatman Bank v. Fritzlen. 135 Fed. 650, (C. C. A.)

12 Railroad Co. v. Mississippi, 102 U. S. 136. 26 L. ed. 96; State v. Coosaw M. Co. 45 Fed. 811; Monroe v. Williamson, 81 Fed. 985, 987.

13 Railroad v. Koontz, 104 U. S. 14, 26 L. ed. 643.

14Steamship Co. v. Tugman, 106 bett, 5 Sawy. 172, Fed. Cas. No. U. S. 122, 27 L. ed. 87, I Sup. Ct.

3,057.

6 Merchants N. Bank v. Thompson, 4 Fed. 876; Cooke v. Seligman, 7 Fed. 263, 17 Blatchf. 452. See supra, note [].

7Miller v. Tobin, 18 Fed. 613, 9 Sawy. 401.

Rep. 58.

15 Brown v. Murray Co. 43 Fed. 615; Noble v. Mass. B. Assn. 48 Fed. 338; Loop v. Winters, 115 Fed. 365. But it is proper, Wilson v. W. U. T. Co. 34 Fed. 561. supra note [d].

16 Brigham v. Thompson L. Co. 55 Fed. 881.

linquish its jurisdiction until a removable case is made to appear upon the face of the record.17 If no such case is made out the State court's jurisdiction is never ousted, and the Federal jurisdiction never properly attaches.18 It seems also that a party may waive a removal to which the filing of petition and bond technically entitle him, by failing to call them to the court's attention and proceeding further in the State court.19

[f] Duty of State court to proceed no further.

When the State court's jurisdiction has been terminated by filing of petition and bond it has no power to permit plaintiff to amend so as to defeat Federal jurisdiction, as, by making a dispute below the jurisdictional amount. Nor has it power to hear a plea to the jurisdiction filed at the same time with petition and bond; 3 nor power to grant a nonsuit, or dismissal. It cannot proceed again in the cause until the jurisdiction is in some way restored, as by remand on order of the Federal court.7 However, the parties cannot have an order of remand of a properly removed case, by consent;8 although State court's have permitted a defendant who has filed petition and bond to withdraw them and proceed in the State court. The removal of a prosecution under one indictment, to the Federal court will not oust the State court of jurisdiction to proceed on other indictments.10 After judgment of dismissal in the Federal court there is no Federal jurisdictional reason why the State court should not entertain a new action.11

17 Amory v. Amory, 95 U. S. 187, 24 L. ed. 428; Yulee v. Vose, 99 U. S. 545, 25 L. ed. 355; Removal Cases, 100 U. S. 474, 25 L. ed. 599; Crehore v. Ohio Ry. 131 U. S. 243, 33 L. ed. 144, 9 Sup. Ct. Rep. 692.

18 Young v. Parker, 132 U. S. 271, 33 L. ed. 352, 10 Sup. Ct. Rep. 75; Crehore v. Ohio Ry. 131 U. S. 244, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; Johnson v. Wells Fargo Co. 91 Fed. 3.

19 See Kinne v. Lant, 68 Fed. 438; Home Ins. Co. v. Curtis, 32 Mich. 403; Texas, etc. R. R. v. Davis, 93 Tex. 378, 54 S. W. 381, 55 S. W. 562; Roberts v. Chicago R. R. 48 Minn. 521, 51 N. W. 478. Contra, Merriam v. Dunbar, 11 Neb. 208, 7 N. W. 443. But asking extension of time to plead while court is considering removal petition is no waiver. Waters v. Central T. Co. 126 Fed. 469.

Kanouse v. Martin, 15 How. 208, 14 L. ed. 660; Wellman v. Howland Works. 19 Fed. 52; Probst v. Cowen, 91 Fed. 929; Clarkson v. Manson, 4 Fed. 262, 18 Blatchf. 443; Stephens v. St. Louis, etc. R. R. 47 Fed. 530,

14 L. R. A. 184; Insurance Co. v. Delaware Co. 50 Fed. 257.

3Goldey v. Morning News, 156 U. S. 524, 39 L. ed. 520, 15 Sup. Ct. Rep. 559.

4 Shepherd V. Bradstreet Co. 65 Fed. 142.

5 Mahoney M. Co. v. Bennett, 4 Sawy. 291. Fed. Cas. No. 8,968.

6 Carson v. Dunham, 121 U. S. 427, 30 L. ed. 992, 7 Sup. Ct. Rep. 1030.

7Turner v. Farmers L. & T. Co. 106 U. S. 555, 27 L. ed. 273, 1 Sup. Ct. Rep. 519; Birdseye v. Shaeffer, 37 Fed. 821.

8 Lawton v. Blitch, 30 Fed. 641. But see Farmers L. & T. Co. v. Chicago, etc., R. R. 9 Biss. 133, Fed. Cas. No. 4,665.

Wadleigh v. Standard L. Co. 76 Wis. 441, 45 N. W. 109; Farmers L. & T. Co. v. Chicago, etc. R. R. 9 Biss. 133, Fed. Cas. No. 4,665.

10 Bush v. Commonwealth of Kentucky, 107 U. S. 115, 27 L. ed. 354, Sup. Ct. Rep. 625.

1

11Gassman v. Jarvis, 100 Fed. 140.

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