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16 Justices v. Murray, 76 U. S. 274: reversing Murray v. Patrie, 5 Blatchf. 343; McKee v. Rains, 77 U.S. 22; Galpin v. Critchlow, 112 Mass. 341; Hodgson v. Milward, 3 Grant Cas. 418; Bell v. Dix, 49' N. Y. 232; Wetherbee v. Johnson, 14 Mass. 412; Lamar v. Dana, 10 Blatchf, 34; Nashville v. Cooper, 73 U. s. 247; Anthon v. Morton, 15 Amer. Law Reg. (N. S.) 556. 17 Cleveland C. C. & I. R. Co. v. McClung, 119 U. S. 454.
§ 103 c. Criminal cases.--This section applies to criminal cases where the defense arises under a law of the United States. A criminal proceeding is not commenced till the warrant is issued; but is commenced as soon as the warrant is issued;3 and when the warrant is issued, it is removable, although issued by a justice of the peace. If removed after arrest and before commitment, the preliminary examination may be taken before the court;5 and if removed before indictment, the indictment may be found by the grand jury of the circuit court. A party indicted in a state court for an action done under color of the revenue laws may remove the cause into the Federal court;' but a person indicted for maintaining a nuisance under the laws of a State cannot remove the cause.8 If a
a criminal case is removed, it must be determined according to the law of the State. 9 A criminal case under this section is removable, not under the Act of March 6, 1833, section 3, which applies to civil cases, but under section 7 of that act. 10 After removal an indictment found in the State court, and any further proceedings, trial, or judyment in the State court, are void. 11 A deputy marshal, and persons lawfully assisting him, while acting under the authority of the law, are entitled to removal of the prosecution under this section. 12 A collector of internal revenue, indicted in a State court for murder committed by him while enforcing the revenue laws, may remove the prosecution into the United States circuit court.13 Under this section the prosecution is “commenced,” so as to authorize a removal, when the warrant is issued and defendant is arrested, whether any indictment has been found or not.14 Where a deputy marshal obtained a removal of the prosecution against him in strict compliance with this section, proceedings to forfeit a bail bond, and render judgment upon it in the State court against him and his sureties, were coram non judice, and void. 15
1 Findley v. Satterfield, 3 Woods, 504; State v. Davis, 12 S. C. 528. 2 State v. Port, 3 Fed. Rep. 117.
3 State v. Bolton, 11 Fed. Rep. 217. 4 State v. Port, 3 Fed. Rep. 117; State v. Bolton, 11 Fed. Rep. 217. 5 State v. Port, 3 Fed. Rep. 117. 6 State v. Port, 3 Fed. Rep. 117.
7 Georgia v. O'Grady, 3 Woods, 459; Findlay v. Satterfield, 3 Woods, 504; Tennessee v. Davis, 100 U. S. 257; State v. Hoskins, 77 N. C. 530.
8 Com. v. Casey, 94 Mass. 214.
9 Tennessee v. Davis, 100 U.S. 257; Georgia v. O'Grady, 3 Woods, 469; Findley v. Satterfield, 3 Woods, 50 1.
10 Ex parte Carson, 4 Hughes, 215.
$ 103 d. Practice and procedure.—Under this section a removal may be had without regard to the amount in controversy. The proceedings are confined to action in the circuit court; the statute addresses the State court wholly by inhibition. All that the statute requires is that it shall appear from the petition that defendant was sued on account of acts done by him under the laws of the United States; and the petition must show a case arising under such laws, and must show a defense thereto that, upon the facts, it may appear that some material question may arise under those laws.* It must specify the act done;5 but it need not state the particular process or writ. This act applies to every case where the offense alleged is committed under the color of office; and the question whether property was seized by defendant in the performance of his official duties is a matter involved in the merits and not to be raised on a motion to dismiss the suit.8 A suit against a United States officer is not remov. able under the Act of 1833, on the ground that the act complained of was done under the instructions of the treasury department.9 The statute requires, when the proper petition and certificate have been filed, that the clerk shall file said petition, and “shall enter” the cause upon the docket of the circuit court as pending, and “shall issue" duplicate writs, etc. 10 The criminal prosecution is commenced, within the meaning of this section, as soon as a warrant has been issued, and is then removable;11 and the filing of the petition and the service on the State court of a duplicate of the writ of habeas corpus cum causa, ipso facto removes the prosecution. 13 It is the duty of the clerk in vacation to see that the petition contains the averments necessary to bring the case within the
1 Wood v. Matthews, 2 Blatchf. 370.
4 Salem & Lowell R. Co. v. Boston & Lowell R. Co., 21 Law Reporter, 210.
5 Ex parte Anderson, 3 Woods, 124. 6 Abranches v. Schell, 4 Blatchf. 250.
7 Venable v. Richards, 1 Hughes, 326; Findley v. Satterfield, 3 Woods, 504.
8 Wood v. Matthews, 2 Blatchf. 370.
9 Victor v. Cisco, 5 Blatchf. 128. But see Benchley v. Gilbert, 8 Blatchf. 147; Salt Co. v. Wilkinson, 8 Blatchf. 30.
10 In re Clarke's Charge, 5 Fed. Rep. 441.
§ 103 e. Enforcing removal. -Certiorari will lie to bring the record, and if the defendant is in custody habeas corpus lies to bring the party. They issue for these purpose only,” and their issuance is only a mode of notification to the State court.3 Service by leaving a duplicate with the clerk of the State court is sufficient;t and if delivered to or left at the office of the clerk, the case is ipso facto removed, and no return is necessary.6 An application for a certiorari must state facts sufficient to show a cause within the provision of the statute; it is not sufficient to state facts generally, as that be intends to rely on the revenue laws of the State.?
1 State v. Hoskins, 77 N. C. 530. See Com. v. Casey, 94 Mass. 214; People v. Murray, 5 Parker Cr. C. 577.
2 Abranches v. Schell, 4 Blatchf. 256. 3 Fisk v. Union Pac. R. Co., 6 Blatchf. 362. 4 Abranches v. Schell, 4 Blatchf, 236. 5 Fisk v. Union Pac. R. Co., 6 Blatchf. 362. 6 Fisk v. Union Pac. R. Co., 6 Blatchf. 362. 7 Salem & Lowell R. Co. v. Boston & L. R. Co., 11 The Reporter, 210.
§ 104. Removal of suits by aliens in a particular case.- Whenever a personal action has been or shall be brought in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States, being a non-resident of that State wherein jurisdiction is obtained by the State court, by personal service of process, such action may be removed into the circuit court of the United States in and for the district in which the defendant shall have been served with the
process, in the same manner as now provided for the removal of an action brought in a State court by the provisions of the preceding section. (Rev. Stats. section 644; 17 U. S. Stats. 44.)
PROCEEDINGS TO OBTAIN REMOVAL OF CAUSE,
$ 105. Removal proceedings-Petition, when filed. § 105 a. Act construed. § 105 b. Application. § 105 c. Petition. § 105 d. Allegation as to subject-matter of suit. § 105 e. Allegation of citizenship. § 105 f. Allegation of non-resident. § 105 g. Allegation as to amount in controversy. $ 105 h. Pending of suit the foundation of the right to remove under
Act of 1887. § 105 i. Time to file petition governed by rules of State court, Act
of 1887. § 105 j. Subsequent extensions of time to answer cannot extend time
for removal. $ 105 k. Order extending time, § 105 1. Time under the Revised Statutes, section 639. § 105 m. Timo under prior statutes. $ 105 n. Time under Act of 1875. § 105 0. At or before the first term. $ 105 p. When cause could be first tried. $ 105 q. Latest decisions under Act of 1875. § 105 r. Application too late. § 105 8. Application when too late, under Act of 1887. $ 106. Bond to be filed, special bail when required. § 106 a. Bond and security. $ 106 b. Filiog bond a jurisdictional prerequisite. $ 106 c. Form and sufficiency of bond. § 106 d. Approval of bond. § 106 e. Special bail. 8 107. Time to file record-Misfeasance of clerk-Certiorari, $ 107 a. Damages for failure to enter copy of record. 8 107 b. The record. § 107 c. Time to file record. § 107 d, Duty of clerk. § 107 e. Certiorari. $ 107 f. What the record must show, § 107 8.
Record must show citizenship of parties.