756. See Rev. Stats. secs. 641, 642, 646; and secs. 25, 26, and 15 of this book.)

Note.-The Act of March 3, 1863, sec. 5, providing for the removal of a judgment in a State court, in a cause tried by a jury, to the circuit court of the United States, for a retrial on the facts and law, is unconstitutional and void. (Justices v. United States ["The Justices v. Murray"], 9 Wall. 274.)

Amendment to Habeas Corpus Act.

[Secs. 3, 4, and 5, Act of May 11, 1866, 14 U. S. Stats. 46, 47.]

§ 33. Causes arising under amended Habeas Corpus Act.-That the right of removal from the State court into the circuit court of the United States, provided in the fifth section of the act to which this is amendatory, may be exercised after the appearance of the defendant, and the filing of his plea or other defense in said court, or at any term of said court subsequent to the term when the appearance is entered, and before a jury is impanneled 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. (Sec. 3 of Act of May 11, 1866, 14 U. S. Stats. 46.)

§ 34. Further State proceedings void. -That if the State court shall, notwithstand

ing the performance of all things required for the removal of the case to the circuit court aforesaid, proceed farther in said cause or prosecution before said certificate is produced, then, in that case, all such further 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. (Sec. 4 of Act of May 11, 1866, 14 U. S. Stats. 46.)

§ 35. 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 or neglect of the clerk to furnish such copies, the said party may docket the case in 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. (Sec. 5 of Act of May 11, 1866; 14 U. S. Stats. 47. See Rev. Stats. secs. 641, 642, 646.)

Note.-The jurisdiction given to the circuit courts by the Acts of March 3, 1863, and May 11, 1866, which provided for acts done by virtue of any order issued by the president or secretary of war, or any military officer of the United States, and that such authority shall be a defense in all courts for all concerned, and for the removal of all such cases from the State courts to the circuit courts of the United States, -is constitutional. (Nashville v. Cooper, 6 Wall. 247.)

§ 36. Suits against aliens, etc.—That 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 against a citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the 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, without the presence of the other defendants as parties in the cause, then and in every 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, 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 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 farther in the cause as against the defendant so applying for its removal; 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.

And any attachment of the goods or estate of the defendant by the original process shall hold the goods or estate so attached to 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 defend

ant, 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 petitioning therefor, into the United States court, shall not be deemed to prejudice or take 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. (Act of July 27, 1866, 14 U. S. Stats. 306, 307. See Rev. Stats. secs. 639, 640, 646.)

$37. On ground of prejudice or local influence.-That the act entitled "An act for the removal of causes in certain cases from State courts," approved July twenty-seventh, eighteen hundred and sixty-six, be and the same is hereby amended as follows: That where a suit is now pending, or may hereafter be brought in any State court, in which there is controversy between a citi