bring the case within the statute. In some cases the order has contained a direction to the clerk of the State court to certify a copy of the record. While the circuit court has power to resort to certiorari to obtain a copy of the record, it is primarily the removing party's duty to procure and file such transcript,8 so that the propriety of such a direction in the removal order may be open to question.

It would seem that the uncertainties in the statute are best resolved by adhering to the settled rules of preceeding for removal in other cases, whenever they furnish a just analogy.9 Those rules suggest the advisability of presenting the circuit court's removal order to the State court and not merely filing it in the clerk's office.10 They suggest also the advisability of some order by the State court in the premises, which, while not essential, would always be proper and useful as a manifestation of its attitude.11 Denial by a State court of removal in a proper case is reviewable in the Supreme Court on error,13 and the right of review would cer tainly be best preserved by actual presentation of an order which upon its face showed a case within the statute, to the court itself, and in such a way that its action thereon would become part of the record in the cause. The propriety of the State court's action is determined on error, by that which appears in its own record.14

[g] When State jurisdiction terminates.

It is clear that the mere entry of a removal order by the circuit court does not terminate the State court's jurisdiction; 16 and that it must be filed in the State court.17 But the authorities have not yet satisfactorily determined, whether the State jurisdiction ceases upon the filing of the order in the State court, and whether the Federal jurisdiction attaches then and in advance of the filing of the record. This would, however, seem to be so where the proceeding in the circuit court was taken in time, the local prejudice was "made to appear," and the requisite diverse citizenship was shown.18 It has been held that by the petition a cause is not removed

5 It has been held proper to certify to the state court a copy of all the proceedings: Lawson v. Richmond Ry. 112 N. C. 394, 17 S. E. 169; Baird v. Richmond Ry. 113 N. C. 605, 18 S. E. 698.

6 See Crotts v. Southern Ry. 90 Fed. 2; Parks v. Southern Ry. 90 Fed. 4. For other orders see AngloAm. Co. v. Evans, 34 Neb. 44, 51 N. W. 310; Howard v. Stewart, 34 Neb. 769, 52 N. W. 714.

7 Post, 1146.

8 See Miller v. Wattier, 24 Fed. 49.

9See Pennsylvania Co. v. Bender, 148 U. S. 251, 37 L. ed. 442, 13 Sup. Ct. Rep. 591.

10 See Pennsylvania Co. v. Bender.

148 U. S. 251, 37 L. ed. 442, 13 Sup. Ct. Rep. 591; ante, § 1138 [c]. От serving it on both judge and clerk: Walcott v. Watson, 46 Fed. 532.

11 Baird v. Richmond Ry. 113 N. C. 605, 18 S. E. 698; see Miller v. Tobin, 18 Fed. 613; ante, § 1138 [d].

13 Ante, § 1138 [g].

14 Pennsylvania Co. v. Bender, 148 U. S. 251, 37 L. ed. 441, 13 Sup. Ct. Rep. 591.

16 Pennsylvania Co. v. Bender, 148 U. S. 255. 37 L. ed. 442, 13 Sup. Ct. Rep. 591.

17 Ibid.

18See Walcott v. Watson, 46 Fed. 529, 532, nolding state court should proceed no further after filing and serving of order.

although an order to that effect has been filed in the State court, if the petition did not show the requisite citizenship and the State court refused to relinquish jurisdiction.19

§ 1144. Procedure when party believes cause removable because land grants from different States will be in issue.

If in any action commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceed the sum or value of two thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial; and if he or they inform that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim.

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

The original enactment upon this subject was contained in the judiciary act of 1789,2 and was carried forward into § 647 of the Revised Statutes. It made the jurisdictional value $500 exclusive of costs, and permitted removal only by the party claiming under grant from a State "other than that in which the suit is pending."4 R. S. § 647 was re-enacted with some changes, in section three of the act of 1875 and hence was superseded al

though not expressly repealed. The act of 1875 raised the jurisdictional value to $2.000 "exclusive of interest and costs," and permitted removal by either claimant whether under the foreign or the domestic State grant. It will be observed that the above proceeding is permitted any time "before the trial;" and that it is now the only case where plaintiff as well as defendant may remove a cause.7 Jurisdiction over controversies between claimants under land grants from different States is conferred upon the Federal courts by the Federal constitution.8

§ 1145. Procedure on removal of suits against revenue officers or involving revenue law.

[against a revenue

Any civil suit or criminal prosecution officer or involving a revenue law, which is removable to the Federal court]10 may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant to said circuit court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution, and be verified by affidavit; and, together with a certificate signed by an attorney or counselor at law of some court of record of the State where such suit or prosecution is commenced, or of the United States, stating 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 them to be true, shall be presented to the said circuit court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the circuit court, and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. Part of R. S. § 643, U. S. Comp. Stat. 1901, p. 521.

The first part of the section prescribes the right of removal upon this ground.11 The remainder is contained in the two following sections.12 The legislative history and validity of R. S. § 643 are elsewhere considered. 13 A prosecution on a felony charge is not commenced within this section by

5Osgood v. C. D. R. R. 6 Biss. 330, Fed. Cas. No. 10,604.

See post. § 1140 [b] as to the interpretation of this clause.

It is often said that in no case can plaintiff now remove. See ante, § 1136 [a].

8 Ante, § 2.

10 See ante. § 138.
11 Ante, § 138.

12 Post. §§ 1142-1144.
13 Ante, § 138.

a preliminary examination, but only by the finding of indictment or equivalent act.16 But minor prosecutions are removable from before the justice of the peace.17 "Final hearing" is used with reference to equity procedure and means the final hearing in the court of original cognizance and not on appeal.18 If removal is prematurely had mandamus will lie to compel the circuit court to remand.19

3

The circuit court's jurisdiction depends upon a proper petition; 20 and attaches at once upon the filing thereof, although the State jurisdiction does not cease until filing of certiorari or habeas corpus.2 It is for the circuit court to determine the sufficiency of the petition. It must specify the act done, but not minutely, so long as it shows suit for an act done under Federal law. The clerk is to enter the cause forthwith upon the filing of petition.6

§ 1146.

certiorari or habeas corpus to State court, which should proceed no further.

When the suit is commenced in the State court by summons, subpoena, petition or another process except capias, the clerk of the circuit court shall issue a writ of certiorari to the State court, requiring it to send to the circuit court the record and proceedings in the cause. When it is commenced by capias, or by any other similar form of proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which 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 by some person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as

16 Virginia v. Paul. 148 U. S. 119, 37 L. ed. 386, 13 Sup. Ct. Rep. 539; Post v. U. S. 161 U. S. 587, 40 L. ed. 817, 16 Sup. Ct. Rep. 613, over ruling North C. v. Kirkpatrick, 42 Fed. 689; Georgia v. Bolton, 11 Fed. 217; State v. Port, 3 Fed. 117. See also State v. Felts, 133 Fed. 85.

17 Virginia v. Bingham, 88 Fed.

561.

18 Brice v. Somers, 1 Flipp. 574, Fed. Cas. No. 1, 856. "Before trial" is used in other removal provisions. See ante, § 1139 [b].

19 Virginia v. Paul, 148 U. S. 123, 37 L. ed. 386. 13 Sup. Ct. Rep. 540. The petition may be filed at any time before trial, at the place where the

next term thereafter is to be held: State v. Felts, 133 Fed. 85.

20Virginia v. Paul, 148 U. S. 114, 37 L. ed. 389, 13 Sup. Ct. Rep. 536. The petition, however, creates only a prima facie case and the burden of proof is on defendant: State v. Felts, 133 Fed. 85.

1 Davis v. South Carolina, 107 U. S. 597, 27 L. ed. 574, 2 Sup. Ct. Rep. 636; State v. Sullivan, 50 Fed. 593. 2 Post, 1142.

3 Dennistoun v. Draper, 5 Blatchf. 336, Fed. Cas. No. 3,804.

4 Ex parte Anderson, 3 Woods, 124, Fed. Cas. No. 349.

5 Abranches v. Schell, 4 Blatchf. 256, Fed. Cas. No. 21.

6In re Clark's charges, 5 Fed. 441.

aforesaid, shall be held to be removed to the circuit court, and any further proceedings, trial, or judgment therein in the State court shall be void.

Part of R. S. § 643, U. S. Comp. Stat. 1901, p. 521.

The remainder of R. S. § 643 is given elsewhere. If the court is not in session it becomes the clerk's duty to issue certiorari or habeas corpus after first satisfying himself of the sufficiency of the petition. 10 A deputy clerk may issue the writ of certiorari.11 The State court's jurisdiction does not cease until the filing of therein of certiorari or habeas corpus.12 Orders by the State court after removal are void.13 The finding of an indictment after removal has been perfected is such further proceeding in the State court as is forbidden and is void.14 The bail given in the State court are discharged from their undertaking by the removal;15 if duly taken.16

§ 1147. duty of marshal if defendant in custody.

If the defendant in the suit or prosecution be in actual custody or mesne process therein, it shall be the duty of the marshal by virtue of the writ of habeas corpus cum causa to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the circuit court, or, in vacation, of any judge thereof.

Part of R. S. § 643 U. S. Comp. Stat. 1901, p. 521.

The remainder of R. S. § 643 is given in preceding and following Code section, and elsewhere.1

§ 1148.proceeding when copy of State record cannot be had. If, upon the removal of such suit or prosecution, it is made to appear to the circuit court that no copy of the record and proceedings therein in the State court can be obtained, the circuit court may 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.

8 Ante, §§ 138, 1141; post, § 1143, 1144.

10 Salem, etc. R. R. v. Boston, etc. R. R. 21 Law. Rep. 210, Fed. Cas. No. 12,249; see North Carolina v. Kirkpatrick, 42 Fed. 689.

310.

13 McCullough v. Large, 20 Fed. 14 North Carolina v. Kirkpatrick, 42 Fed. 691.

15 Davis v. South Carolina, 107 U. S. 601, 27 L. ed. 574, 2 Sup. Ct. Rep. 636.

11State v. Sullivan, 50 Fed. 593. 12 Virginia v. Rives, 100 U. S. 316, 25 L. ed. 667; Virginia v. Paul, 148 U. S. 114, 37 L. ed. 389, 13 Sup. Ct. § Rep. 539; State v. Port, 3 Fed. 124.

16 Hunter v. Colquitt, 73 Ga. 46. 1 Ante, §§ 138, 1141, 1142; post, 1144.