insufficient. Cleveland, C., C. & St. L. Ry. Co. v. Monaghan (1892) 140 Ill. 474, 30 N. E. 869 (affirming [1891] 41 Ill. App. 498);. Farmers' Loan & Trust Co. v. Lake St. El. R. Co. (1898) 51 N. E. 55, 173 Ill. 439, reversed on other grounds (1900) 20 S. Ct. 564, 177 U. S. 51, 44 L. Ed. 667, affirming judgment (1897) 68 Ill. App. 666.

Where a bond for removal was filed, signed by the sureties, but was neither executed nor approved, and contained no affidavit of the solvency of the sureties, and the penalty was not fixed, it is insufficient. Goddard V. Bosson (1878) 21 Kan. 139.

While a removal bond should be presented to the judge of the state court for approval of the surety, the arbitrary refusal of the judge to approve a surety will not prevent the removal, the removing party then being entitled to file the bond and petition, procure the filing of the record on removal, and proceed in the federal Circuit Court, subject to a motion to remand for insufficiency of the surety. Groton Bridge & Manufacturing Co. v. American Bridge Co. (C. C. 1905) 137 Fed. 284.

88. Breach and actions therefor.-A removal bond in the sum of $500 provided that if defendant "shall enter in Isaid circuit court of the United States on the first day of the next term thereof a copy of the record in said suit, and shall pay all costs that may be awarded by said circuit court, if said court shall hold that said suit was wrongfully or improperly removed thereto, then this obligation to be void, otherwise to remain in full force and effect." Defendant failed to file the record at such first term, whereupon plaintiff moved to remand, which was denied. Held, that the $500 was a penalty, and not liquidated damages, but that plaintiff was entitled to recover at least nominal damages thereon for the failure to file. Henry v. Louisville & N. R. Co. (1890) 91 Ala. 585, 8 South. 343.

Defendant, on removing suit, gave a penal bond, conditioned that he would appear and put in special bail, and, on breach of the condition, plaintiff dismissed the suit, and sued to recover the penalty. Held that, not having proceeded to judgment on the merits, or shown any damages, plaintiff cannot recover. Welch v. Thorn (1840) 16 La. 188.

A bond for the removal of a cause from the state to a United States court was conditioned that if defendant entered into the latter court, on the first day of its next session, the record of the case, the obligation was to be void, otherwise to remain in full effect. Defendant failed to so enter the record, and plaintiff sued for damages on breach of the bond. Held, that the measure of his damages was the costs incident to plaintiff's appearance in the

United States court and procuring the cause to be remanded to the state court. Hale v. Fallon (1881) 4 N. J. Law J. 308.

89. Discharge of bail and surrender of principal.-Where a cause is remov. ed, and special bail is given, if the bail afterwards seek to surrender the principal, it should be in open court, and not by a commitment to jail according to the local law of the state. But, if the party is so committed, the circuit court will, upon the petition of the bail, grant a writ of habeas corpus to bring the party into court to be surrendered in discharge of his bail. Holbrook V. Seagraves (C. C. 1841) Fed. Cas. No. 6,593.

(G) Filing petition and bond

90. Filing in state court.-The petition for removal must be filed in the state court. Virginia v. Paul (1893) 13 Sup. Ct. 536, 539, 148 U. S. 107, 37 L. Ed. 386.

A petition and bond addressed to the judge of the federal court and an order obtained from him for such removal were ineffective to remove the cause, though the petition and bond were subsequently filed in the office of the clerk of the state court. Higson v. North River Ins. Co. (C. C. 1911) 184 Fed. 165; Higson v. North River Ins. Co. (1910) 68 S. E. 920, 153 N. C. 35.

The proper procedure for removing a cause against a postmaster as one arising under the laws of the United States is for the defendant to file a petition and bond in the state court, as required by this section, not to file them in the federal court, as provided by section 1015, post. Bryant Bros. Co. v. Robinson (1906) 149 Fed. 321, 79 C. C. A. 259.

A petition and bond for removal may be filed in vacation. Osgood v. Chicago, D. & V. R. Co. (C. C. 1875) Fed. Cas. No. 10,604. But see Scott v. Otis (C. C. 1877) Fed. Cas. No. 12,543, holding that, where, under the state statutes, its courts can act only in term, a cause referred to a referee for trial in vacation cannot be removed to the federal court, under R. S. § 639, by the filing of a petition, affidavit, and bond in vacation.

A petition and bond for the removal of a cause to a federal court, filed in the office of the clerk of the state court during vacation, and not presented to the judge during a term thereof, is insufficient to effect a removal. Shedd v. Fuller (C. C. 1888) 36 Fed. 609; Roberts v. Chicago, St. P., M. & O. R. Co. (C. C. 1891) 45 Fed. 433 (writ of error dismissed Chicago, St. P., M. & O. R. Co. v. Roberts [1891] 141 U. S. 690, 12 Sup. Ct. 123, 25 L. Ed. 902); Fox v. Southern Ry. Co. (C. C. 1897) 80 Fed. 945; Mays v. Newlin (C. C. 1906) 143 Fed. 574; Higson v. North River Ins. Co. (C. C. 1911) 184 Fed. 165; Rhode Island Horseshoe Co.

v. Goodenough Horseshoe Co. (N. Y. 1876) 52 How. Prac. 111, 1 Abb. N. C. 11; Howard V. Southern Ry. Co. (1898) 29 S. E. 778, 122 N. C. 944; Higson v. North River Ins. Co. (1910) 68 S. E. 920, 153 N. C. 35. CONTRA, Noble v. Massachusetts Ben. Ass'n (C. C. 1891) 48 Fed. 337.

But see North American Loan & Trust Co. v. Colonial & U. S. Mortg. Co. (1893) 3 S. D. 590, 54 N. W. 659, holding that actual presentation of the petition and bond for removal to the state court, if in session, is a courtesy due to the court, but it is not expressly required by the law; and, where there will be no session of the court to which the petition could be formally presented within the time when the defendant must answer, the claim of courtesy to such court cannot be allowed to defeat defendant's right of removal and that filing the petition and bond with the clerk of the state court is filing them in such court.

The presentation of a petition and bond for the removal of a cause to the federal court, to a justice of the state court in vacation, and, on his declining to act thereon, filing them in the office of the clerk of the county, is not a compliance with the statute. Williams v. Massachusetts Ben. Ass'n (C. C. 1891) 47 Fed. 533.

An oral motion in a state court for the removal of a cause is a sufficient presentation to the court of the petition and bond for removal, where they are on file with the clerk. Mays v. Newlin (C. C. 1906) 143 Fed. 574.

When defendant in an action in a state court files in the office of the clerk-the court not being in sessiona petition and bond for removal of the cause to the circuit court of the United States, it is also incumbent on him to direct the attention of the court to the fact; and, if he fails to do so, the state court has jurisdiction to render judgment. Roberts v. Chicago, St. P., M. & O. Ry. Co. (1892) 48 Minn. 521, 51 N. W. 478.

The presentation of a petition and bond for removal to a judge of the state court in chambers, and the filing of the same, with his order approving the bond indorsed thereon, with the clerk of the state court, is a sufficient presentation to such court within the removal statute. Remington v. Central Pac. R. Co. (1905) 25 S. Ct. 577, 198 U. S. 95, 49 L. Ed. 959; Groton Bridge & Manufacturing Co. v. American Bridge Co. (C. C. 1905) 137 Fed. 284; Johnson v. Computing Scale Co. (C. C. 1905) 139 Fed. 339.

A positive averment, on oath, by the counsel for the removing party, that the judge to whom the papers were presented was then holding a special term of the court, under a rule providing that the special term is always open when the judge is present, is sufficient to show that the court was in session,

though the judge, on presentation of the papers, made an order to show cause which was not in form a court order. La Page v. Day (C. C. 1896) 74 Fed. 977.

It is sufficient if the petition is filed in time, though it is not actually presented to the court until after the expiration of the time to plead. Burck v. Taylor (C. C. 1889) 39 Fed. 581, judgment affirmed (1894) 152 U. S. 634, 14 Sup. Ct. 696, 38 L. Ed. 578.

It is immaterial that removal papers which have been actually made part of the record were not marked "Filed" before presentation to the state court. Waite v. Phoenix Ins. Co. (C. C. 1894) 62 Fed. 769.

The petition and bond for the removal of a cause must be filed in the clerk's office of the county in which the venue is laid; and, if filed in another county where the court is then sitting, it does not effect a removal, though approved by the presiding judge. Noble v. Massachusetts Ben. Ass'n (C. C. 1891) 48 Fed. 337.

(H) Order for removal

91. Necessity.-Where the requirements of the act of congress for the removal of a cause from a state court to a United States court are complied with, no order of the state court for such removal is necessary. Mannington v. Hocking Valley Ry. Co. (C. C. 1910) 183 Fed. 133; Hatch v. Chicago, R. I. & P. R. Co. (C. C. 1868) Fed. Cas. No. 6,204; Fisk v. Union Pac. R. Co. (C. C. 1869) Id. 4,827; Commercial & Sav. Bank v. Corbett (C. C. 1878) Id. 3,057; Petrie v. Pennsylvania R. Co. (1879) Id. 11,040a; Shepherd v. Bradstreet Co. (C. C. 1895) 65 Fed. 142; La Page v. Day (C. C. 1896) 74 Fed. 977; Lund v. Chicago, R. I. & P. Ry. Co. (C. C. 1897) 78 Fed. 385; Eisenmann v. Delemar's Nevada Gold Min. Co. (C. C. 1898) 87 Fed. 248; Kirby v. Chicago & N. W. R. Co. (C. C. 1900) 106 Fed. 551; Loop v. Winters' Estate (C. C. 1902) 115 Fed. 362; Mutual Life Ins. Co. of New York v. Langley (C. C. 1906) 145 Fed. 415; City of Montgomery, Ala., v. Postal Telegraph-Cable Co. (D. C. 1914) 218 Fed. 471; Southern Ry. Co. v. Dukes (1910) 68 S. E. 332, 7 Ga. App. 784; Le Roux v. Bay Circuit Judge (1881) 46 Mich. 189, 9 N. W. 154; St. Anthony Falls Water Power Co. v. King Wrought Iron Bridge Co. (1876) 23 Minn. 186, 23 Am. Rep. 682; Scheffer v. National Life Ins. Co. (1879) 25 Minn. 534; Shohoney v. Quincy, O. & K. C. Ry. Co. (1909) 122 S. W. 1025, 223 Mo. 649; State ex rel. Iba v. Mosman (1910) 133 S. W. 38, 231 Mo. 474; Richards v. Modern Woodmen of America (1901) 85 N. W. 999, 14 S. D. 440.

But such an order is usual and should be made where the right of removal appears. Mannington v. Hock

(N. Y. 1885) 2 How. Prac. (N. S.) 459.

Where a petition for removal of a cause is denied, and it thereafter becomes apparent to the court at any time that the resident defendant has been joined without reasonable grounds therefor, it is the court's duty in its discretion to set aside the former order and direct a removal of the cause. Ward v. Pullman Car Corp. (Ky. 1908) 114 S. W. 754.

(I) Filing copy of record in United
States court

95. Duty and necessity for filing copy of record and effect of filing.-A nonresident citizen, to remove a cause for prejudice and local influence, must file a copy of the record in the federal court at the proper time. Johnson v. Monell (C. C. 1869) Fed. Cas. No. 7,399.

It is the duty of the removing party, and not of the clerk of the state court, to transmit the record to the federal court. Hatcher's Adm'x v. Wadley (C. C. 1897) 84 Fed. 913.

After a party has filed his petition and bond in the state court, the opposing party may file a copy of the record in the federal court before the expiration of the time limited for the removing party to do so; and the court may then require the latter to plead. Delbanco v. Singletary (C. C. 1889) 40 Fed. 177, 181; Consolidated Traction Co. v. Guarantors' Liability & Indemnity Co. of Pennsylvania (C. C. 1897) 78 Fed. 657 (decree affirmed Bryar v. Campbell [1898] 90 Fed. 690, 33 C. C. A. 236, affirmed [1900] 20 Sup. Ct. 794, 177 U. S. 649, 44 L. Ed. 926); Carpenter v. New York & N. H. R. Co. (N. Y. 1855) 11 How. Prac. 481.

A party applying for the removal of a cause from a state to a federal court, should file his transcript in the federal court before or on the first day of the term of such court next following his application, irrespective of what may be done in the state court on such application. Kaufman v. McNutt (Super. Ct. Cin., Ohio, 1876) 1 Wkly. Law Bul. 94.

Entering the copy of the record in the circuit court is necessary for it to proceed, but its jurisdiction attaches when, under the law, it becomes the duty of the state court to "proceed no further." Entering the record is unnecessary to transfer jurisdiction. Baltimore & O. R. Co. v. Koontz (1881) 104 U. S. 5, 14, 15, 26 L. Ed. 643; Texas & St. L. Ry. Co. v. Rust (C. C. 1883) 17 Fed. 275, 5 McCrary, 348.

The requirement for filing the transcript is directory, not mandatory. Delbanco v. Singletary (C. C. 1889) 40 Fed. 177, 181.

Where a defendant waived its right to remove a cause, if it had such a right, by proceeding with the trial in the state court after denial of its petition for removal, the removal cannot be subsequently effected by the plaintiff over the

defendant's objection, by filing a transcript in the federal court. Johnson v. Butte Alex Scott Copper Co. (D. C. 1914) 213 Fed. 910.

Where the allegation in a petition for the removal of a cause to the federal court as to the amount in controversy was contradicted by the record depriving the federal court of jurisdiction, the fact that a transcript of the record was filed in the federal court did not deprive the state court of jurisdiction. Bacon v. Iowa Cent. Ry. Co. (1912) 137 N. W. 1011, 157 Iowa, 493.

96. Form and contents of transcript to be filed.-In cases removed from the state courts the record must be filed by the petitioners which must show affirmatively the facts necessary to give the federal court jurisdiction, and, where the federal court has any doubt of the right of removal, the safer practice is to remand the case to the state court which has jurisdiction. Long v. Buford (C. C. 1885) 24 Fed. 241, 248.

The law devolves on the party remov ing a cause the duty of procuring and filing a copy of the record, but for purposes of removal and jurisdiction to hear and determine the cause the original is equivalent to the copy, and in filing it the party has substantially complied with the statute. Miller v. Wattier (C. C. 1885) 24 Fed. 49; Miller v. Soule (D. C. 1915) 221 Fed. 493.

Where a petition for removal is denied, the files and papers must remain in the court in which the petition is filed, and the petitioner must secure certified copies, and cause same to be filed in the United States court: Williams' Const. Okl. § 431, providing for a transfer of the original papers, applying only where the case is removed. Lawson v. Guthrie (1914) 137 Pac. 1186, 40 Okl. 598.

A party who applies for the removal of a case from a state to a federal court, under Judiciary Act 1789, § 12, which required filing copies of the "process" in the federal court, must file in the latter court copies, not only of the summons or other process, but also of the declaration, petition, or bill, the petition for the removal, and the order of the state court thereon, if any was made. McBratney v. Usher (C. C. 1870) Fed. Cas. No. 8,661. But see Brownell v. Gordon (C. C. 1856) Fed. Cas. No. 2,039, holding that it is not indispensable that the averment of the citizenship or alienage of a defendant should appear on any one of the papers transmitted with the order of the state court, for the transfer of the case to the federal court.

The term "record" includes the testimony taken and on file in a cause at the time of filing a petition and bond for its removal from a state court. Miller v. Tobin (C. C. 1883) 18 Fed. 609, 9 Sawy. 401.

A petition for the removal of a cause

to the federal court, though filed in the state court, is transmitted to the federal court as a part of the record, and is a pleading on the allegations of which the right of removal rests, and to which the pleadings of the adverse party must refer. Randall v. New England Order of Protection (C. C. 1902) 118 Fed. 782.

Under the statutes of Georgia, and especially Civ. Code 1895, § 4518, which provides that an attachment against a nonresident of the state may be made returnable to the superior court of any county where an attachment is sued out in one county, and executed by serving summons of garnishment in another county on filing in the court therein a certified copy of the original affidavit and bond, the proceedings in the court where the service is made are ancillary to, and a part of, the original suit, and on a removal of such suit, the record required to be filed in the federal court includes such proceedings. Woodward Lumber Co. v. Vizard (C. C. 1906) 144 Fed. 982.

When a state court grants a removal, the cause is to be removed as of the date when the motion for removal was made; and the papers should be certified as they were at that date. Clark v. Delaware & H. Canal Co. (1874) 11 R. I. 36.

Where a defendant enters in the circuit court what purports to be a copy of a declaration in the action in the state court, but such copy is not certified from the state court or accompanied by a certified copy of any order of the state court for its transmission, and the defendant then enters in the circuit court a rule to declare, the rule will be vacated, and the copy of the declaration will be taken from the files. Martin v. Kanouse (C. C. 1846) Fed. Cas. No. 9,162.

Upon a proceeding for the removal of a cause from a state to the federal court, it is not essential that the record be certified by the judge of the state court; the attestation of the clerk unIder the seal of the court is sufficient. Osgood v. Chicago, D. & V. R. Co. (C. C. 1875) Fed. Cas. No. 10,604.

Where, in making up the record of a cause for its removal to the federal court, the clerk of the state court made it up in detached papers, certifying to each one, and also that the papers constituted the whole record, this is a sufficient copy thereof. Commercial & Sav. Bank v. Corbett (C. C. 1878) Fed. Cas. No. 3,057.

When an action commenced in the state district court, involving lands described in the complaint as being in "Bottineau's addition to Minneapolis," is removed to the circuit court of the United States, and the certified complaint in that court describes the lands as being in "Bottinen's addition to Minneapolis," the record in the latter court is prima facie applicable to the land in question in Bottineau's addition. Pierro v. St. Paul & N. P. Ry. Co. 1 U.S.COMP.'16-63

(1888) 39 Minn. 451, 40 N. W. 520, 12 Am. St. Rep. 673.

97. Time and place for filing.-The additional term of the federal circuit court, appointed to be held on the second Wednesday of October by Act Feb. 7, 1873, § 1 (17 Stat. 422), being exclusively for the trial and disposal of criminal cases and matters, was not a session of the court, requiring copies of proceedings in a suit to be entered in court on the first day of the session, in order to perfect the removal of such suit into a federal court. Jones v. Oceanic Steam Nav. Co. (C. C. 1873) Fed. Cas. No. 7,485.

The proper time for entering in the federal circuit court "copies of the proper papers," etc., is on the first day of the next session after the filing of the petition for removal, affidavits, etc. But if the term of such circuit court to which the same is removable should commence within 20 days after the filing of the petition and bond in that court, still the removing party is to have 20 days to file copy of record. Clippinger v. Missouri Val. Life Ins. Co. (C. C. 1876) Fed. Cas. No. 2,901.

When an order is made by a state court for removal of a cause to the circuit court for the Western district of Virginia, the removing party must file the record in the latter court on the first day of the ensuing session, whether it be held at Lynchburg, Danville, Abingdon, or Harrisonburg. Hatcher's Adm'x v. Wadley (C. C. 1897) 84 Fed. 913.

Where a term of the federal Circuit Court was in session at the time an application for removal of a cause was made, the applicant was not in default for failure to file the record within 20 days, but was entitled to file the same on or before the first day of the next succeeding term. Goldberg, Bowen & Co. v. German Ins. Co. of Freeport, Ill. (C. C. 1907) 152 Fed. 831.

98. Excuses for delay.-If a petitioner, entitled to removal, is kept by his adversary, and against his will, in the state court, he may, after reversal of the judgment, and an order allowing removal, enter the cause in the circuit court, after time for entering the record under other circumstances has gone by. Baltimore & O. R. Co. v. Koontz (1881) 104 U. S. 5, 17, 26 L. Ed. 643.

It is sufficient excuse for not filing the petition in the federal court on the day regularly set for the beginning of the first term after the petition and bond were filed in the state court, being November 5th, that defendant's attorney inquired of the clerk when the term would begin, and was told that the first day would be December 5th; it appearing that, owing to the absence of the judge, no court was held until that date. Burgunder v. Browne (C. C. 1893) 59 Fed. 497.

The federal court will not remand the case when satisfied that the delay was (993)