a

and the cause shall thereupon be entered on the docket of said court, and shall be thereafter proceeded in as cause originally commenced in that court; and it shall be the duty of the clerk of said court, if the suit was commenced in the court below by summons, to issue a writ of certiorari to the State court, requiring said court to send to the said circuit court the record and proceedings in said cause; or if it was commenced by capias, he shall issue a writ of habeas corpus cum causa, a duplicate of which said writ 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 some person duly authorized thereto; and thereupon it shall be the duty of the said State court to stay all further proceedings in such cause; and the said suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be deemed and taken to be moved to the said circuit court, and any further proceedings, trial, or judgment therein in the State court shall be wholly null and void; and any person, whether an attorney or officer of any State court, or otherwise, who shall thereafter take any steps, or in any manner proceed in the State court in any action so removed, shall be guilty of a misdemeanor, and liable to trial and punishment in the court to which the action shall have been removed, and upon conviction thereof shall be punished by imprisonment for not less than six months nor more than one year, or by fine not less than five hundred nor more than one thousand dollars, or by both such fine and imprisonment, and shall in addition thereto be amenable to the said court to which said action shall

have been removed as for a contempt; and if the defendant in any suit be in actual custody on 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 said cause according to the rules of law and the order of the circuit court, or of any judge thereof in vacation. And all attachments made, and all bail or other security given upon such suit or prosecution, shall be and continue in like force and effect as if the same suit or prosecution had proceeded to final judgment and execution in the State court. And if upon the removal of any such suit or prosecution it shall be made to appear to the said circuit court that no copy of the record and proceedings therein in the State court can be obtained, it shall be lawful for said circuit court to 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 bronght in said circuit court; and on failure of so proceeding, judgment of non prosequitur may be rendered against the plaintiff, with costs for the defendant. (Sec. 16 of Act of February 28, 1871, 16 U. S. Stats. 438.)

§ 42. That in any case in which any party is or may be by law entitled to copies of the record and proceedings in any suit or prosecution in any State court, to be used in any court of the United States, if the clerk of said State court shall, upon demand and the payment or tender of the legal fees, refuse or neglect to deliver to such party cer

tified copies of such record and proceedings, the court of the United States in which such record and proceedings may be needed, on proof by affidavit that the clerk of such State court has refused or neglected to deliver copies thereof on demand as aforesaid, may direct and allow such record to be supplied by affidavit or otherwise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceedings had been regularly before the said court; and hereafter in all civil actions in the courts of the United States either party thereto may notice the same for trial. (Sec. 17 of Act of February 28, 1871, 16 U. S. Stats. 439. See Rev. Stats. secs. 643, 645, 646.) § 43. Actions brought against court officers.—That 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 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 process, in the same manner as now provided for the removal of an action brought in a State court by the provisions of section three of the Act of March second, eighteen hundred and thirty-three, entitled "An act further to provide for the collection of

duties on imports." (Amendatory Act of March 30, 1872, 17 U. S. Stats. 44. See Rev. Stats. sec. 644.)

$44. Removal of suits against aliens, etc., where amount of $500 in dispute. Any suit commenced in any State court, wherein the amount in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, to be made to appear to the satisfaction of said court, may be removed for trial into the circuit court for the district where such suit is pending, next to be held after the filing of the petition for such removal hereinafter mentioned, in the cases and in the manner stated in this section. (U. S. Rev.

Stats. sec. 639.)

§ 45. When the suit is against an alien, or is by a citizen of the State wherein it is brought, and against a citizen of another State, it may be removed on the petition of such defendant, filed in said State court at the time of entering his appearance in said State court. (Sub-section first of Rev. Stats. sec. 639.)

Note.-Clause repealed by the Act of March 3, 1875. (La Mothe Manuf. Co. v. National Tube Works, 15 Blatchf. 432; Girardey v. Moore, 3 Woods, 307; Whitehouse v. Insurance Cos., 2 Fed. Rep. 498; Cook v. Ford, 4 Cent. L. J. 560; McLean v. Chicago & St. P. R. R. Co., 16 Blatchf. 300; New Jersey Zinc Co. v. Trotter, 23 Int. Rev. Rec. 410.) It is superseded by the latter act. (Norris v. Mineral Point T. Co., 7 Fed. Rep. 272.)

§ 46. When the suit is against an alien and a citizen of the State wherein it is brought, or is by

a citizen of such State against a citizen of the same and a citizen of another State, it may be so removed, as against said alien or citizen of another State, upon the petition of such defendant, filed at any time before the trial or final hearing of the cause, if so far as it relates to him it is brought for the purpose of restraining or enjoining him, or is a suit in which there can be a final determination of the controversy, so far as concerns him, without the presence of the other defendants as parties in the cause. But such removal shall not take away or prejudice the right of the plaintiff to proceed at the same time with the suit in the State court, as against the other defendants. (Sub-section second of Rev. Stats. sec. 639.)

Note.-Section not repealed by the Act of March 3, 1875, as the latter act only relates to the removal of the whole suit. That it is repealed so far as the subdivision clause. This subdivision was repealed in every respect by the Act of 1875. Congress did not intend to continue in force any portion of said subdivision; the provision as to removal of a separable controversy has no application to a removal under the third division of sec. 639 Revised Statutes. This clause was repealed by the Act of 1875 as to the time prescribed for filing the petition, "at any time before the trial or final hearing of the cause. (Ayers v. Watson, 113 U. S. 594.)

1 Wormser v. Dahlmau, 16 Blatchf 319; Girardy v. Moore, 3 Woods, 397; 5 Cent. L. J. 78; Wormser v. Kline, 57 How. Pr. 286; New Jersey Zinc Co. v. Trotter, 23 Int. Rev. Rec. 410; Ex parte Grimball, 8 Cent L. J. 151; McLean v. Chicago etc. R. R. Co., 16 Blatchf. 319; Hyde v Ruble, 3 Morr. Trans. 516; Blake v McKim, 103 U. S. 336; Barney v Latham, 103 U. S. 205; Clark v. Chicago, R I. & P. R. R. Co.; Sweet v. Same, 11 Fed. Rep. 355; Railroad Co. v. Mississippi, 102 U. S. 141.

2 Osgood v Chicago etc. R. R. Co., 6 Biss. 330; Chicago v. Gage, 6 Biss. 467; Hervey v. Illinois etc. R R. Co., 7 Biss. 103; Girardy v Moore, 3 Woods, 397; S. C., 5 Cent L. J. 78; Carrahar v Brennan, 7 Biss. 497. Ruckman v. Ruckman, 1 Fed. Rep. 587; Burch v. Davenport etc. R. R. Co.' 46 Iowa, 449. See Removal Cases, 100 U. S 457; Arapahoe Co. v Kansas. & P. R. R. Co., 4 Dill 277. But see Cook v. Ford, 4 Cent. L. J. 560

3 Clark v. Chicago, M. & St. P. R. R. Co., 11 Fed. Rep. 355; Hyde v, Ruble, 3 Morr. Trans. 516.