2

application was in time if made at the first term of the court thereafter. The first term at which a cause is in law triable, is that in which the cause would stand for trial if the parties had taken the usual steps, as to pleading and other preparations. This is to be ascertained by the rules of court. The loss of the right to remove by a failure to file a petition "before or at the term at which said cause could be first tried, and before the trial thereof," is not restored by a subsequent amendment of the pleadings presenting different issues. Where the issues raised by answers are all complete, the next term thereafter is the last term at which a removal can be asked for, whether the pleadings are subsequently amended and new issues raised, or not." A petition for removal on the ground of citizenship must be filed at or before the term at which the cause could be first tried in the State court. The first term after the opening of a decree against "unknown holders" of bonds is as to such holders the term at which, within the meaning of the act, he could file his petition for removal." Where there would not have been fourteen days before the term of the court and the case could not have been tried without her consent until the next February term, that term was the one at which the cause could be first tried. The irregular docketing of a case for the first day of the next term does not preclude defendant's motion for removal to the Federal court at a subsequent day of the same term. The case must be actually on trial before the right of removal is gone. 10 Where a cause is removed from a State court of one county to that of another county, a petition for removal to a Federal court is too late unless it was filed at or before the term at which the cause could be tried in the former county.11

1 Meyer v. Delaware R. Construction Co. ("Removal Cases "), 100 U. S. 457; American Bible Society v. Grove, 101 U. S. 610; King v. Worthington, 104 U. S. 44.

2 Pullman P. C. Co. v. Spech, 113 U. S. 84.

3 Pullman P. C. Co. v. Spech, 113 U. S. 84.

4 Phoenix Mut. L. Ins. Co. v. Walrath, 117 U. S. 365; Edrington v. Jefferson, 114 U. S. 770; Pullman P. C. Co. v. Spech, 113 U. S. :84 Gregory v. Hartley, Id. 742.

5 Edrington v. Jefferson, 111 U. S. 770.

6 Manning v. Amy, 140 U. S. 137; Baltimore & O. R. Co. v. Burns, 124 U. 165; Lookout Mt. R. Co. v. Houston, 32 Fed. Rep. 711; Neal v. Foster, 31 Fed. Rep. 53; Holland v. Chambers, 110 U. S. 59; Meyer v. Delaware R. onstruction Co. (Removal Cases"), 100 U. S. 457; Babbitt v. Clark 103

U. S. 605; Myers v. Swann, 107 U. S. 546; Ayers v. Watson, 113 U. S. 594; Gregory v. Hartley, Id. 742; Sperry v. Ethridge, 70 Iowa, 27.

7 Harter v. Kernochan, 103 U. S. 562.

8 Carson v. Hyatt, 118 U. S. 279.

9 McKeens v. Ives, 35 Fed. Rep. 801.

10 Myer v. Delaware R. Construction Co. ("Removal Cases"), 100 U. S. 457.

11 Baltimore & O. R. Co. v. Burns, 124 U. 3. 165.

§ 105 r. Application too late.-A cause cannot be removed from a State court to a Federal court after the term at which it could be first tried in the State court.1 After a trial in State court, and judgment reversed, and the case remanded for a new trial, it is too late to file a petition for removal on the ground of citizenship.2 But if the removal had been asked for and improperly denied it is not too late. Where a verdict on a replevin suit was set aside, and one creditor was added who asked for a removal on the ground of citizenship after one trial in which he was represented by the sheriff, his application is too late.

i Manning v. Amy, 140 U. S. 137; Baltimore etc. R. Co. v. Burns, 124 U. S. 165; Babbitt v. Clark, 103 U. S. 606; Pullman P. C. Co. v. Speck, 113 U. S. 84; Gregory v. Hartley, 113 U. S. 742; Keeney v. Roberts, 39 Fed. Rep. 629.

2 Core v. Vinal, 117 U. S. 347; Holland v. Chambers, 110 U. S. 59. 3 Stix v. Keith, 90 Ala. 121.

4 Hakes v. Burns, 40 Fed. Rep. 33.

§ 105 s. Application when too late, under Act of 1887. Under the Act of March 3, 1887 (sec. 3), as amended by the Act of August 13, 1888, the application must be made at or before the time the defendant required to plead to the declaration where defendants, their plea in abatement having been quashed, are required to plead to the merits instanter. A petition filed nearly a month afterward is too late.1 Under Act of March 3, 1887, as corrected by Act of August 13, 1888, it is too late to make the application for removal after a motion to take the bill from the files and a demurrer to the bill have been disposed of. Where on the third day of the term, defendant is ruled to answer, and files a plea in abatement on the next day, which is overruled on demurrer on the sixth day, a petition for removal, not filed until the seventh day, is too late, even if the plea in abatement suspended

3

the rule to answer, as such rule became operative on the overruling of the plea. An action commenced February 10, 1887, where defendant's time to answer would have expired March 2d, but, by stipulation, the time to answer was extended to March 30th; a petition an bond for removal filed April 8th was filed too late. Where a defendant had lost the right of removing a suit before the act of March 3, 1887, and after that act was passed the pleadings were amended, and he filed a petition for removal with his amended answer, he was too late. It is too late to remove a cause after a lapse of four terms after the plea was due. 6

1 Kaitel v. Wylie, 38 Fed. Rep. 865.

2 Tennessee Coal L. & T. B. Co. v. Walker, 37 Fed. Rep. 515

3 Browning v. Reed, 33 Fed. Rep. 625.

4 Simonson v. Jordan, 24 Blatchf. 374.

5 Woolf v. Chisolm, 24 Blatchf. 405.

6 Kansas City, St. S. & M. R. Co. v. Daughtry, 138 U. S. 298.

§ 106. Bond to be filed-Special bail, when required.-And shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit, if special bail was originally requisite therein. (Cl. 2 of sec. 3 of the Act of March 3, 1875; as amended by Act of March 3, 1887, 24 U. S. Stats. 552; as corrected Aug. 13, 1888, 25 U. S. Stats. 435.)

§ 106 a. Bond and security.—Under the Judiciary Act the defendant must give several or joint and several bonds, and not joint bonds; but under the Act of 1875, "good and sufficient surety" is all that is required. The Act of 1867 only requires the offer of "good and sufficient surety," the surety to bind himself in writing. The form

5

is immaterial. So a stipulation in the nature of a recognizance is sufficient. The penalty must be sufficient to indemnify for delay or failure to comply with its terms, and a penalty of one thousand dollars will be deemed sufficient, if defendant has not been held to bail." Where the bond did not contain the conditions required by the Act of 1875, and the penal sum was left blank in noncompliance with the Act of 1867, the case was remanded.7 The security must be offered at the time of filing the petition. 8 Under the Judiciary Act the securities must be offered at the time of the party's appearance.9 The jurisdiction of the Federal court does not depend on the form or substance of the bond, if the statute in the other respects has been complied with;10 and the petition need not contain an offer to give the security." If the petitioner fails to file his bond, the case remains in the State court,12 and the bond need not be filed till the security is accepted. 13 The petitioner need not execute the bond, 14 but the attorney of the petitioner may sign for him. 15 If, however, he does not sign, he must explain his reasons for not doing so. 16 If the bond be signed by strangers only, and there is no proof of their solvency, there will be no error in refusing to transfer the cause. 17 The State court may investigate the value of the sureties, 18 and judge of their sufficiency. 19 It must determine whether the surety is "good and sufficient," may determine the amount, and whether it should be joint, or joint and several, 20 and may require the sureties to justify. 21 But the sureties on the bond are not bound to justify until a rule to do so is laid upon them. 22 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.2 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. 24 It cannot reject the security without assigning a cause; 25 nor can it refuse to accept it, except on the ground of insufficiency. 26 If all the requisites exist, the State court must accept the surety and proceed no farther. 27 The surety is not bound by the subsequent adjudication against the principal in the State court. 28 An irregularity or defect in the form of the bond will

23

be deemed waived after the expiration of eighteen months, where the cause was removed with the consent of all the parties.29 The bond is sufficient if conditioned that petitioners will comply with the statute, and although the obligors are not called sureties; 30 but it must provide for the appearance of petitioner at the next term of the court; 31 and that the surety will cause copies of the record to be entered is not sufficient. 32 If the time prescribed in the bond within which the transcript shall be filed has elapsed, the bond is insufficient;33 and if defendant is held to bail, the amount of the bond must equal the bail. 34 A clause in the condition of the bond providing that defendants shall cause to be done such other and appropriate acts as are required is sufficient compliance with the requirements of the statute. 35 A petition for removal is properly overruled where the undertaking is insufficient. 36 The cause will be remanded where the bond contains no provision for costs. 37 A bond not providing for payment of costs is insufficient, and a stipulation "to do such other appropriate acts as by the act of Congress are required" will not be a substitute for such provision. 38 The bond required for the removal of a suit from a State to the Federal court need not be signed by the applicant for removal, if signed by others named therein as principal and surety, or by sufficient sureties. 39 Where the

bond given for the removal of an action from a State to a Federal court follows substantially the words of the statutes, and the legal effect is not varied, the bond is sufficient. 40 Where a petition for the removal of a cause from a State to a Federal court shows cause sufficient for removal, the fact that the wrong statute was referred to as authorizing the removal is a matter of no importance.

41

1 Roberts v. Carrington, 2 Hall, 619; Hazard v. Durant, 9 R. L. 602: 2 Removal Cases, 100 U. S. 457; Mix v. Andes Ins. Co., 74 N. Y. 53. 3 Tunstall v. Madison, 30 La. An. 471; Mix v. Andes Ins. Co., 74 N. Y. 53.

4 Brown v. Crippen, 4 Hen. & M. 173.

5 Miller v. Finn, 1 Neb. 251.

6 Blanchard v. Dwight, 12 Wend. 192.

7 Byrdeck v. Hale, 7 Biss. 93; 8 Ch. L. N. 192. See Torrey v. Grant Works, 14 Blatchf. 269.

8 Kirkpatrick v. Hopkins, 2 Miles, 277; Best v. N. Y. Life Ins. Co., 2 Cin. Rep, 239; Robinson v. Potter, 43 N. H. 188; Hazard v. Durant, 9R. I.