failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for the defendant.

Part of R. S. § 643, U. S. Comp. Stat. 1901, p. 521.

The remainder of R. S. § 643 is given elsewhere in the text.3 The case proceeds in the Federal court as though originally there brought and is governed by Federal practice; although the State law as to the substance of an offense prevails.5 If a criminal prosecution is removed the State attorneys or a special appointee of the court? continues the prosecution.

§ 1149. Procedure on removal by defendant denied civil rights. Any civil suit or criminal prosecution [which is removable because involving a denial of any civil right of defendant] 10 may, upon the petition of such defendant, filed in said State court, at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, in the next circuit court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the State courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court.

Part of R. S. § 641, U. S. Comp. Stat. 1901, p. 520.

The first part of R. S. § 641 is given in a preceding chapter,11 and the remainder in the following sections.12 A prosecution for a felony is not commenced within this section until indictment found or some equivalent proceeding.13 After trial is commenced removal cannot be had on this ground and judicial infractions of civil rights at the trial must be left to the revisory power of the Federal courts.14 The right of removal is given only to defendants,15 but to each defendant.16 The section provides for removing the whole suit.17

Ante, §§ 138, 1141-1143. 4Coggill v. Lawrence, 2 Blatchf. 304, Fed Cas. No. 2,957, as to costs; Richter v. Magone, 47 Fed. 192, as to costs: Georgia v. O'Grady, 3 Woods, 496, Fed. Cas. No. 5,352, challenge of jurors.

5Georgia v. O'Grady, 3 Woods, 496, Fed. Cas. No. 5,352; North Carolina v. Gosnell, 74 Fed. 734.

Delaware v. Emerson, 8 Fed. 411, 7Georgia v. Bolton, 11 Fed. 217,

219.

10 Ante. § 137.

11See ante, §$ 137. giving the leg islative history of R. S. 641.

denied; 18 and Upon filing of The State

The petition should show which civil rights have been otherwise affirmatively show a case within the statute.19 proper verified petition the cause is removable as of course.20 court's jurisdiction ceases if a removable case is duly made out, and its assent to the removal is unnecessary.1 The Federal court is entitled to assert its jurisdiction by proper process and the State court should yield obedience thereto.2 But the State court has a right to examine the sufficiency of the removal petition.3 Further proceeding in the State court will be void.4

§ 1150. filing of record and penalty for neglect by clerk or

plaintiff.

It shall be the duty of the clerk of the State court to furnish such defendant petitioning for a removal copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the circuit court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the circuit court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition or complaint in the cause; and, in case of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy.

Part of R. S. § 641, U. S. Comp. Stat. 1901, p. 520.

The preceding parts of R. S. § 641, are given in preceding sections. The last part appears in the next section. It will be observed that this section applies on to a failure of the State clerk and not of the court, and refusal by the latter is to be met by the proceeding pointed out in R. S. § 642.8

18 State v. Gleason, 12 Fla. 190. 19 Patrie v. Murray, 43 Barb. 323; Hodson v. Milward. 3 Grant, 412; see Jones v. Seward. 40 Barb. 563; Short v. Wilson, 1 Bush. 350.

20Siebrecht v. Butler, 2 Abb. Pr. N. S. 361; State v. Common Pleas, 15 Ohio St. 377.

1 Bell v. Dix, 49 N. Y. 232. pare ante, § 1138 [f].

Com

2In re Wells, 3 Woods, 128, Fed. Cas. No. 17,386.

3 In re Wells. 3 Woods, 128, Fed. Cas. No. 17.386. Compare ante, § 1138 [c] [d].

4Ex parte Reynolds, 3 Hughes. 559, Fed. Cas. No. 11,720.

6 Ante, $$ 137, 1145.
7 Post. § 1147.

8Post. $ 1148. Ex parte Wells, 3 Woods, 128, Fed. Cas. No. 17,386.

§ 1151. penalty where removing party neglects to file record. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof,10 the petitioner for removal fails to file copies in the circuit court as herein provided, a certificate, under the seal of the circuit court, stating such failure, shall be given, and upon the production thereof in said State court the cause shall proceed therein as if no petition for a removal had been filed. Last part of R. S. § 641, U. S. Comp. Stat. 1901, p. 520.

The preceding portions of R. S. § 641 are given elsewhere.11

§ 1152. defendant in custody to be transferred to marshal.

When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section,12 have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said circuit court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said circuit court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ.

R. S. § 642 U. S. Comp. Stat. 1901, p. 521.

The acts of 1887 and 1888 expressly declared that this provision was not to be deemed repealed by them.13 This is the orderly procedure in cases where the State court and not merely its clerk fails to recognize the removal.14 The writ of habeas corpus must be allowed by the judge before it can be issued. 15

§ 1153. Attachment, bond, and injunction orders, etc. in State court unaffected by removal.

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

10 Ante, § 1146.

11 Ante, §§ 137, 1145, 1146.

12 Ante, $$ 1145, 1147.

Stat. 552, as corrected Aug. 13, 1888, c. 866, § 5, 25 Stat. 436.

14 In re Wells, 3 Woods, 128, Fed.

138 5, Act Mar. 3, 1887, c. 373, 24 Cas. No. 17,386.

15Ibid.

been rendered by the court in which said suit was commenced ;[b] and all bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual, notwithstanding said removal;[c] 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.[a]

§ 4 of act Mar. 3, 1875, c. 137, 18 Stat. 471, U. S. Comp. Stat. 1901, p.

511.

[a] Prior legislation.

R. S. 646 covered the same ground as the above provision and would seem to be superseded by it. In the absence of provision in the act of 1866 for continuing an injunction it was held dissolved by removal. The judiciary act of 1789 confined the clause respecting attachment to any attachment, by the original process."2 R. S. § 646 confined the clause respecting bonds and undertakings to "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." "3

[b] Attachment unaffected by removal.

The circuit court becomes clothed with the powers of the State court under this provision; 4 and the attachment holds the property after removal.5 If the party had made application for an attachment, he may proceed to get an attachment after removal; but if it be a separate process, it will not carry with it a lien on the property in case of removal. A motion to dissolve an attachment when authorized by the State law may be made in the circuit court, and if denied may be renewed at the discretion of the court.7 Where attachment suits are removed the rule of distribution and priority of liens will be the same as it would in a State court. The same rule will be followed as to sale of perishable property.10 The res in custody at the time of removal rightfully passes to the circuit court; 11 and the marshal may take the attached property from the sheriff. 12 Where foreign attachment is resorted to in the State court to compel ap

1 McLeod v. Duncan, 5 McLean, 342 Fed. Cas. No. 8,898; Hatch v. Rail. road Co. 6 Blatchf. 105, Fed. Cas. No. 6,204.

2See Barney v. Globe Bank, 5 Blatchf. 107, Fed. Cas. No. 1031.

3See U. S. Comp. Stat. 1901, p. 523.

4Garden City Manuf. Co. v. Smith, 1 Dill. 305; Fed. Cas. No. 5,217; Lefavour v. Whitman S. Co. 65 Fed. 785.

5 New England Screw Co. v. Bliven, 3 Blatchf. 240, Fed. Cas. No. 10,156:

Barney v. Globe Bank, 5 Blatchf. 107,
Fed. Cas. No. 1,031.

6 Bills v. N. O. St. L. & C. R. Co. 13 Blatchf. 227, Fed. Cas. No. 1,409.

7Garden City Manuf. Co. v. Smith, 1 Dill. 305, Fed. Cas. No. 5,217.

9 Bankers' M. & T. Co. v. Chicago C. Co. 28 Fed. 398.

10 New York etc. Co. v. Second Nat. Bank, 10 Fed. 204. 11Kern v. Huidekoper, 103 U. S. 485, 26 L. ed. 354.

12 Friedman v. Israel, 26 Fed. S01.

pearance, if defendant appear and remove the cause to the Federal court that court has jurisdiction to proceed; 13 and the same is true where such party first gives bond in the State court for release of the attached property.14

[c] Bonds or security given in State court remain binding.

An undertaking for costs indorsed on the original writ continues a valid obligation in the Federal court.16 Bonds given in the State court are to be read as though containing a condition covering the eventuality of removal.17

[d] Injunction to continue until modified.

If injunction was granted in the State court it will continue in force until modified or dissolved by the circuit court; 19 and the same is true of orders made before removal.20 The provision indicates a clear intent that the continuance of injunction be dealt with by the Federal court;1 which has power to impose conditions in modifying the injunction granted; 2 or to refuse to carry out an order at variance with the Federal law.3 However it should not dissolve an injunction regularly obtained under State practice, because of the absence of verification necessary by the Federal rule; 4 nor in advance of the term for filing the removed record, where the rights of the parties would in effect be changed or finally determined thereby.5 As R. S. § 720 forbids injunction by a Federal court against proceedings in a State court, parties were tempted to try an evasion of that prohibition, under earlier removal laws permitting removal by plaintiff to the suit. This led to some question as to the propriety of holding that an injunction by a State court against State court proceedings continued in force after removal. Now that removal may only be had by defendant, opportunity for this evasion of R. S. § 720 is gone, and it is settled that injunction by a

13Irvine v. Lowry, 14 Pet. 299, 10 L. ed. 462; Barney v. Globe Bank, 5 Blatchf. 107, Fed. Cas. No. 1,031. 14 Purdy v. Muller, 81 Fed. 513. See as to appearance as waiver: ante. 860 [b].

16 Pullmans Co. v. Washburn, 66 Fed. 790.

17 See State v. Peck, 32 W. Va. 606, 9 S. E. 919.

19 Northwestern D. Co. v. Corse, 4 Biss. 514, Fed. Cas. No. 10,335; McLeod v. Duncan, 5 McLean, 342, Fed. Cas. No. 8,898; Peters v. Peters, 41 Ga. 242.

But see ex parte Fisk, 113 U. S. 725, 38 L. ed. 1122, 5 Sup. Ct. Rep. 724.

1Watson v. Bonderant, 2 Woods, 166, Fed. Cas. No. 17,278; Perry v. Sharpe, 8 Fed. 24: Smith v. Schwed, 6 Fed. 455, 2 McCrary 441. See Charge to Grand Jury, 3 Hughes, 576, Fed. Cas. No. 18,259; see post, § 1157 [c].

2Ex parte Fisk, 113 U. S. 725, 28 L. ed. 1122, 5 Sup. Ct. Rep. 724.

3 Portland v. Oregon Ry. 7 Sawy. 122, 6 Fed. 321.

4 Smith v. Schwed, 6 Fed. 455, 2 McCrary 441.

5

5 New Orleans Ry. v. Crescent Ry. Fed. 160.

6 Ante, $ 20.

20 Boatmans' Bank v. Wagenspack, 12 Fed. 66, 4 Woods 130; Champlain Co. v. O'Brien, 107 Fed. 334. They should be enforced by the circuit court: Williams etc. Co. v. Raynor, 281, 26 L. ed. 448. 7 Biss. 245, Fed. Cas. No. 17,748.

7Bondurant v. Watson, 103 U. S.