lina v. Sullivan (C. C. 1892) 50 Fed. 593.

12. Amount in controversy. This section gives the right of removal "in any case" falling within the particular class of cases provided for, without any regard to the amount in controversy in the suit. Hence no question can be raised in the circuit court, based upon the trifling value of the property, for the taking of which the suit was commenced. Wood v. Matthews (C. C. 1852) Fed. Cas. No. 17,955, 23 Vt. 735.

13. Time and place for filing petition. -In the Western district of Virginia, where the federal judge is judge both of the district and circuit court and both courts are held at the same time and place, and have the same clerk, a deputy United States marshal arrested for murder on a warrant from a justice of the peace, before his preliminary examination before such justice, filed in the district court a petition addressed to the judge of the circuit court, alleging his arrest, that he was then confined in jail "awaiting trial before said justice upon the said charge of murder," and that the killing was done in self-defense, while acting under the revenue laws. The petition prayed a removal into the circuit court, and for a writ of habeas corpus cum causa. The federal judge thereupon made an order entitled in the district court, awarding a writ of habeas corpus in common form. Pending an adjournment of the hearing thereon, the state grand jury for the proper county found an indictment against the petitioner for murder, which was exhibited to the federal court by an amendment to the jailer's return. After the hearing an order was entered in the district court, simply requiring the petitioner to be recognized for his appearance before the federal circuit court "to answer the indictment found against him by a grand jury of the county court of Smyth county, Virginia." Held, that these proceedings were not in compliance with this section. Virginia v. Paul (1893) 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386.

The petition is not required to be filed at the place where the next session of the Circuit Court is to be held after indictment, where there are several places of holding court in the district, but it may be filed, at any time before trial, at the place where the next term thereafter is to be held. And such requirement is directory only, and the filing of the petition in the clerk's office at a different place is not ground for remanding the cause to the state court. State of Virginia v. Felts (C. C. 1904) 133 Fed. 85.

14. Petition.-A petition, duly verified, alleging that, though the petitioner had been indicted for murder, no murder had been committed; that the killing was done in necessary self-defense;

that the petitioner was and still is a United States revenue officer; that the act was committed while engaged in the discharge of his duties as such officer in attempting to seize an illicit distillery; and that, while so doing, he was assaulted and fired upon, and in defense of his life returned the fireauthorizes the removal of the prosecution to the United States court. Tennessee v. Davis (1879) 100 U. S. 257, 25 L. Ed. 648.

An application must state facts sufficient to enable the court to decide whether the case is one within the provisions of the act. It is not enough that the petitioner alleges in general terms that he intends to rely in his defense to the suit upon the revenue laws of the United States. Salem & L. R. Co. v. Boston & L. R. Co. (C. C. 1857) Fed. Cas. No. 12,249.

The petition need not state the cause of action or the kind of process, but is sufficient where it appears therefrom that the defendant was sued on account of acts done by him under the revenue laws of the United States. Abranches v. Schell (C. C. 1859) Fed. Cas. No. 21.

The petition for removal must be verified by affidavit. Sweeney v. Coffin (C. C. 1870) Fed. Cas. No. 13,686.

15. Determination of right to removal. The fact that under the act of congress the certiorari from the United States court in a case against a United States revenue officer is issued on an ex parte application, without any judicial determination that the cause is one which comes within the statute, does not make it the duty of the state court to proceed and try the cause so as to determine that question. State v. Circuit Judge (1873) 33 Wis. 127.

16. Certiorari and habeas corpus cum causa. The writ of certiorari provided for in this section is not the commonlaw writ, but a statutory writ, performing the office and function of an order of removal; and the jurisdiction of the federal court to issue the writ and entertain the suit after such removal is dependent entirely upon the provisions of the statute as applied to the facts of the case. Johnson v. Wells Fargo & Co. (C. C. 1899) 98 Fed. 3, 5.

Where a prosecution against a revenue officer has been commenced by capias or other process of arrest, the federal court, on the filing of the petition for removal, issues a writ of habeas corpus cum causa, which, in case the defendant has given bail, may be addressed to the marshal, a duplicate to be served upon the clerk of the state court. It is the duty of the petitioner, and not of the state, to procure the indictment and proceedings of the state court; and where the clerk has been tendered his proper fees therefor, and fails or refuses to furnish a certified

copy of the record, a writ of certiorari should issue from the federal court, or the record may be supplied by affidavit, as provided in R. S. § 645, post, § 1017, which course may also be taken when the petitioner is unable to pay the clerk's fees. State of Virginia v. Felts (C. C. 1904) 133 Fed. 85.

A writ of certiorari was properly issued when the accused officer had been released on bail, and had made no application for the writ of habeas corpus cum causa. North Carolina v. Sullivan (C. C. 1892) 50 Fed. 593.

When a petition for the removal of a prosecution against a federal revenue officer to a federal court is filed during vacation in the office of the clerk of the federal court, the proper writ, such as the issuance of a writ of certiorari or habeas corpus cum causa, may be issued by his deputy without showing upon its face that the clerk has held the petition to be sufficient. North Carolina v. Sullivan (C. C. 1892) 50 Fed. 593, 599. CONTRA, State v. Sullivan (1892) 110 N. C. 513, 14 S. E. 796.

A writ of certiorari addressed to the marshal of the district, instead of to the state court, commanding the marshal to make known to the clerk of the state court the removal of the cause, and that such court is required to send a transcript of the record to the circuit court, is a sufficient compliance with the statute. North Carolina v. Sullivan (C. C. 1892) 50 Fed. 593. CONTRA, State v. Sullivan (1892) 110 N. C. 513, 14 S. E. 796.

17. Transfer of jurisdiction.--The prosecution which was commenced in the state court, after the filing of the petition, by the finding of an indictment, was not removed by an order holding the petitioner to trial in the federal court; for, in cases of removal under this section, the jurisdiction of the federal court depends entirely on the statements made in the verified petition, and it is not accomplished until the state court receives notice from the clerk of the federal court of the petition filed in his office. Virginia v. Paul (1893) 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386.

The jurisdiction of the circuit court attaches upon the filing therein of a proper petition; and, upon the delivery of the prescribed process issued to the state court, the jurisdiction of the latter court is wholly devested. McCullough v. Large (C. C. 1884) 20 Fed. 309.

The removal of a prosecution against a United States revenue officer from a state to a federal court is effected, and complete jurisdiction acquired, immediately upon the finding of a proper petition therefor in the clerk's office of the federal court; and the subsequent issuance of a writ of certiorari or habeas corpus cum causa is but the use of auxiliary process and the performance 1 U.S.COMP.'16-65

of a ministerial duty. North Carolina v. Sullivan (C. C. 1892) 50 Fed. 593.

18. Effect of removal.-The forfeiture of the officer's recognizance by the state court after removal is void and of no effect. Davis v. South Carolina (1883) 107 U. S. 597, 2 Sup. Ct. 636, 27 L. Ed. 574. But see State v. Davis (1879) 12 S. C. 528, holding that the jurisdiction of the state court over a prisoner charged with a crime against the laws of the state is not affected by the removal of the prisoner from the custody of the court by virtue of the writ of habeas corpus issued by the United States judge. The writ of habeas corpus under this section is not an original remediable writ, but merely an auxiliary process to bring the person of the petitioner within the jurisdiction of the United States court.

Orders of the state court subsequent to the removal are coram non judice and void. McCullough v. Large (C. C. 1884) 20 Fed. 309; North Carolina v. Sullivan (C. C. 1892) 50 Fed. 593.

An indictment found in a state court after the removal of the cause to the United States circuit court is null; and where, upon habeas corpus cum causa, it appears that the prisoners were in the discharge of their duty as revenue officers of the United States when the act was committed, and were without fault, they will be discharged. North Carolina v. Kirkpatrick (C. C. 1890) 42 Fed. 689.

A writ of certiorari from the United States circuit court for the Western district of Wisconsin, filed with the clerk of the circuit court for Rock county, in that state, stated that a certain action of ejectment commenced in said Rock county circuit court was for and on account of certain rights, authority, and title set up and claimed by a collector of internal revenue in and for the Second district of Wisconsin, under the provisions of the revenue laws of the United States, and for and on account of rights, title, and authority set up and claimed by defendants under such revenue laws, and it commanded that the records and proceedings be certified and removed to the circuit court of the United States. Held, that the Rock county circuit court, on the filing of this writ, properly stayed all proceedings in the action. State v. Circuit Judge (1873) 33 Wis. 127.

19. Procedure after removal.-Under this section whether the property taken by defendant was so taken in the exercise of his functions as an officer of the customs, under the revenue laws, is a matter of fact belonging to the merits of the case, and cannot be raised on a motion to dismiss the suit. Wood v. Matthews (C. C. 1852) Fed. Cas. No. 17,955.

On the trial of a defendant who has removed the case into the federal court no procedure is prescribed by the stat

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the party applying to a rehearing under the state practice. Denison v. Shawmut Min. Co. (C. C. 1903) 124 Fed. 860.

A ruling made in a state court before removal is, after. removal, as if made by the federal court. Davis v. St. Louis & S. F. R. Co. (C. C. 1885) 25 Fed. 786; Duncan v. Gegan (1879) 101 U. S. 810, 812, 25 L. Ed. 875. The federal court will not review orders made prior to the removal, if the state court acted within its jurisdiction. It will take the case precisely as it finds it, accepting all prior decrees and orders as adjudications in the cause. Loomis v. Carrington (C. C. 1883) 18 Fed. 97; Brooks v. Farwell (C. C. 1880) 4 Fed. 166, 2 McCrary, 220; Guernsey v. Cross (C. C. 1907) 153 Fed. 827. Thus a decision of the state supreme court on a demurrer is binding on the federal court. Lookout Mountain R. Co. v. Houston (C. C. 1890) 44 Fed. 449, appeal dismissed Huston v. Lookout Mountain R. Co. (1895) 159 U. S. 256, 15 Sup. Ct. 1040, 40 L. Ed. 143. As is a holding of the supreme court of the state that certain conduct of an insurance company should be submitted to the jury as evidence of intent to waive a forfeiture for overinsurance. Cleaver v. Traders' Ins. Co. (C. C. 1889) 40 Fed. 711. And an order made in the state court before removal, but not yet complied with, for the production of books and papers, under which contempt proceedings were instituted and an order made therein. Williams Mower & Reaper Co. v. Raynor (C. C. 1876) Fed. Cas. No. 17,748. But where the state court acted without jurisdiction a, different rule applies, and a motion to quash the service on a defendant who has not entered a general appearance, which involves the question of jurisdiction over the defendant, although overruled by the state court, may be renewed after removal. Lathrop-Shea & Henwood Co. v. Interior Const. & Imp. Co. (C. C. 1907) 150 Fed. 666; Flint v. Coffin (1910) 176 Fed. 872, 100 C. C. A. 342; Remington v. Central Pac. R. Co. (1905) 25 S. Ct. 577, 198 U. S. 95, 49 L. Ed. 959. Accordingly the right to immunity from the service of process in a cause removed from a state to a federal court must be determined independently of any view which the state court might entertain. Feister v. Hulick (D. C. 1916) 228 Fed. 821.

The circuit court of the United States has no power to review a decision of the state court denying intervention on a petition by the interveners to remove the cause; such decision, however erroneous, being binding on the federal court. Kidder v. Northwestern Mut. Life Ins. Co. (C. C. 1902) 117 Fed. 997.

Defendant, a foreign corporation, was sued in the Supreme Court of New York by service on its president while temporarily within the state, to settle

a death claim out of which the action arose. Defendant appeared specially and moved to set aside the service, and, this motion being denied, served a general notice of appearence in the action and demanded a copy of the complaint which was thereafter served on defendant's attorneys. No appeal was taken from the order denying a motion to quash the service, though authorized by the state law, Lut after receiving a copy of the complaint defendant removed the cause to the federal Circuit Court, and after obtaining an extension of time to answer renewed its motion to quash the service without any restriction or limitation in the Circuit Court of its appearance. Held, that defendant was not again entitled to attack the service in the federal court under the rule that matters which have been decided in the state court and not appealed from should be regarded as settled when the case is thereafter removed to the federal court; also, that the general appearance under the circumstances was voluntary and conferred jurisdiction. Hoyt v. Ogden Portland Cement Co. (C. C. 1911) 185 Fed. 889.

Where defendant has removed a case from a state court after denial of a motion to set aside the service of summons, he cannot renew the motion in the federal court without leave to do so, either from the state or federal court. Allmark v. Platte S. S. Co. (C. C. 1896) 76 Fed. 615.

Where a nonresident defendant, sued in a state court, invokes the judgment of that court by a motion to set aside the service of the summons, he is concluded by the court's decision, and cannot renew the motion in the federal court, after removing the cause, on substantially the same evidence. Bragdon v. Perkins-Campbell Co. (C. C. 1897) 82 Fed. 338.

The decision of a state court that in an action for negligence the master and servant might be joined at common law has no controlling effect in the federal courts, and the question in the Supreme Court is not the rule of the federal courts in similar cases, but what controversies has Congress made removable. Alabama G. S. R. Co. v. Thompson (1905) 26 Sup. Ct. 161, 165, 200 U. S. 206, 50 L. Ed. 441, 4 Ann. Cas. 1147.

Where, before the removal of a cause, the state court has restricted plaintiff to his cause of action for breach of contract, on which an attachment has been granted, and he has elected to consent to such order, and it is still in force when the case is removed to the federal court, a motion by plaintiff in the circuit court for leave to amend his complaint may be denied; no change in the relative position or rights of the parties having been made. Phelps v. Canada Cent. R. Co. (C. C. 1882) 19 Fed. 801.