When application should be made.-To effect a removal under this provision, the petition must be filed in the State court "before or at the term at which said cause could be first tried and before the trial thereof." This has been held to mean, in respect to suits pending when the act was passed, that the petition must be filed at the first term of the court thereafter at which the cause could be tried. Hence where a suit tried in a State court, April 14, 1875, was, on the disagreement of the jury, continued at that term and the following one, it was held that a petition for a removal filed thereafter should not be granted. Bible Society v. Grove, 101 U. S., 610; Removal Cases, 100 Id., 457.

In the case last cited the court held that an application made for the removal of a cause from a State to the circuit court, pending at the passage of the act of March 3, 1875, was in time if made before trial and at the first term of the court thereafter.

The court further held, that the petition, in such a case, must be presented to the court before the trial is in good faith entered upon; and to bar the right of removal, it must appear that the trial had actually begun and was in progress in the order by course of proceeding when the application was made. No mere attempt of one party to get himself on the record as having begun the trial. will be enough." See, also, Baker v. Peterson, 4 Dill., 562; Hoadley v. San Francisco, 3 Saw., 553; The Merchants & Man. Nat. Bank v. Wheeler, 13 Blatch., 218.

Where a judgment had been recovered in a State court against a railroad company for $12,000, and the latter appealed the case to the Supreme Court where a judgment was rendered reversing that below and ordering a new trial, and immediately thereafter the company made and filed in the office of the clerk of the lower court, the court not being in session, a writ of procedendo together with a petition for a removal of the cause to the circuit court under the act of March 3, 1875, accompanied by the necessary bond, and afterwards, but within the sixty days allowed for that purpose by the laws of the State the plaintiff on an application for a rehearing in the Supreme Court of the State, obtained an order for the suspension of its judgment until the next term, and the railroad company then appeared and moved to dismiss the application for a rehearing on the ground that before it was presented the case had been removed into the circuit court, and that consequently the Supreme Court had no jurisdiction thereof, the motion was denied and a rehearing had and the plaintiff consenting to a reduction of the amount of the judgment to $7,000, judgment for that amount was rendered. On error, the Supreme Court held:

1. That the Supreme Court of the State having, after reversing the judg ment of the lower court, still retained jurisdiction of the cause for the purpose of a hearing, the right of the defendant to a new trial had not been perfected when the petition for a removal was filed.

2. That the subsequent judgment in the Supreme Court operated as a revocation of the order to the court below granting a new trial, and consequently withdrew the case from under the petition. Railroad Co. v. McKinley, 99 U. S., 147.

In the case of Vannevar v. Bryant, 21 Wall., 41, it was decided that after

one trial has been had in a State court, the right to another must be perfected before a demand can be made for the removal of the case to the circuit court of the United States. And in Insurance Co. v. Dunn, 19 Wall., 214, it was held that a cause could be removed from the State to the circuit court after a trial and judgment in a State court if before the removal, the first judgment be set aside or vacated, and the right to a new trial perfected.

In the La Mothe Manufactring Co. v. The National Tube Works Co., 15 Blatch., 432, Judge BLATCHFORD observes: "In respect to a case which is covered by section two of the act of 1875, even though the same case was covered by subdivision one of section 639 of the Revised Statutes, the provision of section three (of the act of 1875) that the petition for removal may be filed before or at the term at which said cause could be first tried, and before the trial thereof,' is in conflict with the provision of said subdivision one, that the petition must be filed at the time the appearance of the defendant is entered in the State Court, and the earlier provision is repealed."

Judge DILLON says: (Dillon on Removal of Causes, p. 28). "That it would seem that subdivision 1, of section 629 is practically repealed by reason of being merged in the more enlarged right given by the act of 1875.'

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See, also, opinion by Judge BALLARD in Cooke v. Ford, 4 Cent. L. J., 561; Hervey v. The Illinois Midland Railway Co., 7 Biss., 103.

Under a similar provision, as to the time of the application for the removal by any defendant, under certain circumstances, in the act of 1866, where judgment had been rendered in a State court in favor of the plaintiff and against two defendants, and the judgment was afterwards reversed and a new trial granted, and afterwards, and before a new trial, one of the defendants applied to the State court for a removal of the suit against him into the circuit court, it was held that the case stood for trial as if no trial had occurred, and that the cause was properly removed. Dart v. McKinney, 9 Blatch., 359. See, also, explanation of the act of 1875. Atle v. Potter 4 Dill.. 550; McColough v. Sterling School Furniture Co., Id., 563; Palmer v. McCall, Id., 566.

The whole controversy must be removed.-In order to authorize a removal of a cause it must appear that the matter in controversy can be wholly determined in the circuit court; a part of a controversy cannot be removed. Hervey v. The Illinois Mid. R. Co., 7 Biss., 103. A fragment of the suit or controversy cannot be removed under the act of 1875, because a party interested in that fragment, or some single issue, is a citizen of another State from that of the plaintiff. Carreaher v. Brennan, 7 Biss., 497. See, also, Arapahoe County v. Kansas Pacific R. Co., 4 Dill., 277.

The right to remove a case founded upon citizenship of the parties depends upon their citizenship as persons, and not as representatives of other parties if there can be such a thing. Hence, where a suit was brought by executors and the petition alleged that as such executors they had the required citizenship, this was held insufficient to authorize a removal of a cause from the State to a circuit court. Amory v. Amory, 95 U. S., 186. See, also, Craigie v. McArthur, 4 Dill., 474.

Citizenship of merely nominal parties will not affect the question of the right of removal, but under the act of 1875 the whole controversy must be

removed if anything is; and foreign citizens cannot remove a cause unless they constitute the entire parties plaintiff or parties defendant-it must be a suit between citizens of one of the States on one side, and foreign States, citizens or subjects on the other. Hewey v. The Illinois Mid. R. Co., 7 Biss., 103; Arapahoe County v. Kansas Pacific R. Co., 4 Dill., 277. But, see Removal Cases, 100 U. S., 457, where it was held sufficient in this respect, if, after placing all on one side or the other, as the matter in dispute may require, then if all on one side desire a removal, it may be had. See, also, Osgood v. Chicago, etc., R. Co., 6 Biss., 330; Scott v. The Clinton, etc., R. Co., 6 Biss., 529.

The statute must be complied with.-To entitle a party to a removal, the act of 1875 must be substantially complied with. Hence where the bond given on an application for a removal contained a blank space where the amount of the penalty should have been inserted it was held that no right of removal existed. Burdick v. Hale, 7 Biss., 96. See, also, Osgood v. Chicago, etc., R. Co., 6 Biss., 330, where it was held that the act of 1875 repealed previous acts on the subject; and that since its passage a defendant, though a citizen of the State where the suit is brought, may remove a case from the State to a circuit court.

So, the petition for the removal should also clearly state the grounds of the removal, whether arising from the citizenship of the parties, or the subjectmatter, and also the amount in controversy, where that is essential. Abrancher v. Schell, 4 Blatch., 256; Thurton v. Union P. R. Co., 3 Dill., 366; Railway Co. v. Ramsey, 22 Wall., 328. It was settled in the case of Insurance Company v. Pechner, 95 U. S., 183, that under the twelfth section of the judiciary act of 1789 (embodied in section 639 of the Revised Statutes), a cause cannot be removed from a State to a federal court unless the petition for removal or the record of the cause affirmatively shows, that at the time of the commencement of the suit the parties were citizens of different States.

At the October term of the circuit court at Des Moines, in the eighth circuit, circuit judge MCCRARY held that "under the act of 1875, as well as under the previous law, a case cannot be removed from a State to a federal court on the ground of citizenship of the parties, unless it appears from the record that at the time the suit was commenced the parties to it were citizens of different States." This opinion was concurred in by Mr. Justice MILLER, circuit justice.

When the writ of certiorari may issue.-The only object of a certiorari is to bring the record from the State court into the federal court; but where the record is in the State court and is before the circuit court, the issuance of a certiorari is useless. If the clerk of the State court refuses to certify, then the circuit court will allow parties to supply them. Scott v. The Clinton, etc., R. Co., 6 Biss., 529; Akerly v. Vilas, 2 Biss., 110.

The record means an exemplified copy; and this holds good in case of an indictment, where a criminal prosecution is remitted from the district to the circuit court, under the provisions of section 1037, of the Revised Statutes. The United States v. McKee, 4 Dill., 1.

SEC. 4. Process not affected by removal.-That when any suit shall be removed from a State court to a circuit court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the State court, shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered in the court in which such suit had been commenced; and all bonds, undertakings or security given by either party in such suit prior to its removal, shall remain valid and effectual notwithstanding such removal; and all injunctions, orders, and other proceedings, had in such suit prior to its removal, shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed.

Attachment, injunctions, etc.-A motion to dissolve an attachment may be made after a removal, under the provision of the State laws, in the discretion of the court, though the same motion may have been prosecuted to the State court. Garden City Man. Co. v. Smith, 1 Dill., 305.

And it was held, under the act of 1866, that injunctions were ipso facto dissolved, on removal, as they did not come within the saving provision of the act. Hatch v. Chicago, etc., R. Co., 6 Blatch, 105. But the act of 1875 expressly provides that they shall continue in force.

See, as to practice on motion to dissolve, Carrington v. Florida R. Co., 9 Blatch, 468.

The circuit court, on a removal of a cause, takes the case in the condition it was when the State court was deprived of jurisdiction. The circuit court has no more power over what was done before the removal than the State court would have if the suit had remained there; and the proceedings in a cause are not vacated by a removal. Rights litigated and disposed of, under the law previous to the act of 1875, are concluded by the judgment of the State court. Duncan v. Gregan, 101 U. S., 810.

SEC. 5. Suit dismissed or remanded.-That if, in any suit commenced in a circuit court, or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively

made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just, but the order of said circuit court dismissing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be.

When the court will remand-when not.-The character of suits brought in the circuit court or removed there from the State courts is always open to examination whether ratione materiae, they can take jurisdiction. Railroad Company v. McKinley, 99 U. S., 147.

If the papers are regular and conform to the requirements of the act, accompanied with the offer of the bond and surety required, the State court has no further jurisdiction of the case, and it seems the court has no discretion in the matter; and that the question of jurisdiction belongs to the federal court. Fisk v. Union Pac. R. Co., 6 Blatch., 362; Hatch v. Chicago, R. I. & P. R, Co., 6 Id., 105; Kanouse v. Martin, 15 How., 198; Insurance Co. v. Dunn, 19 Wall., 214; Akerly v. Vilas, 2 Biss., 110; Railway Co. v. Ramsey, 22 Wall., 328.

The bond must be good, as well as the petition, but the sufficiency of them is to be determined by the federal court. Osgood v. Chicago & C. R. Co., 6 Biss., 330.

A motion to remand admits the facts set out in the petition for removal. Buttner v. Miller, 1 Woods, C. C., 620. If not one of federal cognizance it must be remanded or dismissed when the facts appear to justify such action. Dennistown v. Draper, 5 Blatch., 336; Heath v. Austin, 12 Id., 320; Galvin v. Boutwell, 9 Id., 470; Wood v. Mathews, 2 Id., 370. Issue may be taken on the facts stated as the gounds of removal in the circuit court. Fish v. Union Pacific R. Co., 8 Blatch., 243; Heath v. Austin, 12 Id., 320; Field v. Lownsdale, 1 Deady, 288.

SEC. 6. Mode of procedure.-That the circuit court of the United States shall, in all suits removed under the provision of this act, proceed therein as if the suit had been originally commenced in said circuit court, and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said State court prior to its removal.

SEC. 7. Time to file copy of record-misfeasance of clerk of State court-certiorari.- That in all causes removable under this act, if the term of the circuit court to