judication. Larned v. Jenkins (1901) 109 Fed. 100, 48 C. C. A. 252. Where a case is removed from a state court to the United States Circuit Court and the jurisdiction is sustained, the question of jurisdiction cannot be reviewed on a writ of error to the Circuit Court of Appeals. Pennsylvania Lumberman's Mut. Fire Ins. Co. v. Meyer (1903) 126 Fed. 352, 61 C. C. A. 254. On the removal of a cause instituted as one at law to recover a judgment for damages, but which is not maintainable as such in the federal court, where a demurrer on that ground was rightly sustained, and the plaintiff declined to amend his pleading to bring the case into the equity side of the court, but sued out a writ of error, he is bound by his election, and the judgment dismissing his action will be affirmed. Fletcher v. Burt (1903) 126 Fed. 619, 63 C. C. A. 201. Where a proceeding to condemn real estate, or an easement therein, under the power of eminent domain, is removed from a state court into a Circuit Court of the United States, and after compensation has been ascertained a writ of error is prosecuted from the judgment, any supersedeas obtained should be modified so that the petitioner shall have the same rights as though the proceedings had remained in the state court; and, where the state statute provides that the proposed work shall not be delayed by appellate proceedings in case the amount of compensation awarded is paid into court, the supersedeas in the federal court will be modified to conform to such provision. Broadmoor Land Co. v. Curr (1904) 133 Fed. 37, 66 C. C. A. 143. Where a removed cause is taken to the Circuit Court of Appeals by writ of error, it is the duty of that court, on its own motion, to determine whether the record exhibits a removable cause, regardless of whether any objection was taken to the jurisdiction of the federal court, either in the trial court or on appeal. Rife v. Lumber Underwriters (1913) 204 Fed. 32, 122 C. C. A. 346, following Fred Macey Co. v. Macey (1905) 135 Fed. 725, 68 C. C. A. 363. 27. Costs.-Under Pub. St. Mass. c. 161, § 24, providing that "original writs * * in which the plaintiff is not an inhabitant of the commonwealth shall, before entry thereof, be indorsed by some sufficient person who is such inhabitant," who shall be liable for costs, the indorser of a writ is liable for costs incurred in a federal court after removal to it of a suit from a state court, as well as for the costs in the state court. Washburn v. Pullman's Palace Car Co. (1896) 76 Fed. 1005, 21 C. C. A. 598, affirming Pullman's Palace Car Co. v. Washburn (C. C. 1895) 66 Fed. 790. 1 U.S.COMP. '16-69 Where the judgment is reversed by the Circuit Court of Appeals on the ground that the cause was improperly removed from a state court, costs should be awarded against the removing party. Kansas City Southern Ry. Co. v. Prunty (1904) 133 Fed. 13, 66 C. C. A. 163. On removal to the federal court of an appeal in admiralty before the passage of this act, the fee for removal is not taxable. Dedekam v. Vose (C. C. 1853) Fed. Cas. No. 3,730. The acts of congress in relation to costs apply only to such costs as accrue after the removal. Wolf v. Connecticut Mut. Life Ins. Co. (C. C. 1874) Fed. Cas. No. 17,924. A party after the removal is not entitled to any costs, except such as are taxable under section 1378, post, though such items would have been taxable in his favor in the state court. Clare v. National City Bank (C. C. 1878) Fed. Cas. No. 2,793. In an action at law originally brought in a state court, and removed by defendant, the amount ultimately recovered by plaintiff, although, exclusive of costs, less than $500, would have entitled him to costs in the state court. Held, that plaintiff was entitled to costs, although, if the action had been commenced originally in the federal court, no costs could have been recovered. Kreager v. Judd (C. C. 1880) 5 Fed. 27. Where a case is removed from a state to a federal court, interest on the judgment accruing during the stay of the judgment by motion for a new trial in the latter court may be included in the taxation of costs, since it is within the equity of R. S. § 996, post, § 1645, providing that all judgments in the United States courts shall bear the same rate of interest as judgments in the courts of the states where they are rendered. Gunther v. Liverpool, L. & G. Ins. Co. (C. C. 1882) 10 Fed. 830. In an action for the recovery of excessive customs duties illegally exacted, which is brought in a state court and removed by defendant, and in which plaintiffs recover less than $50, neither plaintiffs nor defendant is entitled to costs. Richter v. Magone (C. C. 1889) 47 Fed. 192. 28. Costs incurred in state court. Where a case has been improperly removed by defendants, all costs from the time of removal must be paid by them. Walker v. Collins (1897) 17 S. Ct. 738, 167 U. S. 57, 42 L. Ed. 76, reversing judgment (1893) 59 Fed. 70, 8 C. C. A. 1. Costs accruing prior to removal are taxable on final judgment in the federal court. The Garden City (C. C. 1886) 27 Fed. 234; Cleaver v. Traders' Ins. Co. (C. C. 1889) 40 Fed. 863. Under R. S. § 4284, post, § 8022, providing that, where goods shipped by water are owned by different freighters (1089) and are lost, if the whole value of the vessel is insufficient to compensate the freighters, the latter may recover compensation of the owner of the vessel in proportion to their losses, and the owner may sue to apportion the sum among them; but where the owner delays to do so till 16 months after the loss, and 11 months after suit by the freighters to recover, the question being thereupon transferred to the federal court, the freighters are entitled to recover, as part of the damages, their costs incurred in the suits in the state court before the owner's proceeding was begun. The Garden City (C. C. 1886) 27 Fed. 234. Where a cause is removed from a state court to a federal court, on the ground that it is a controversy between a citizen of the state where the action is brought and a corporation created under the laws of another state, the state court loses jurisdiction immediately upon the filing of the petition for removal, and costs for witness fees in the state court for witnesses subpœnaed thereafter will not be allowed. Young v. Merchants' Ins. Co. (C. C. 1886) 29 Fed. 273. But costs of witresses attending at the taking of depositions issued out of the state court will be allowed if the depositions were issued before the removal of the cause, even if they were not used because of the presence of the witnesses, or because the facts testified to were admitted at the trial. Id. After removal a party cannot, on recovering judgment, be allowed the costs prescribed by the state statutes up to the time of removal, unless such items are taxable under R. S. §§ 823, 824, post, §§ 1375, 1378. Chadbourne v. German-American Ins. Co. (C. C. 1887) 31 Fed. 625. 29. Stay for nonpayment of costs. A state court is without jurisdiction to award costs in an action, or to make any order whatever, after the cause is duly removed to the United States circuit court; and therefore a motion for stay of proceedings in the circuit court, because such costs have not been paid, will be denied. Penrose v. Penrose (C. C. 1880) 1 Fed. 479. After the filing by defendant, in a suit in a state court, of a proper petition and bond for removal of the cause, the suit was prosecuted to judgment in plaintiff's favor, and the judgment was affirmed on appeal to the highest court of the state, from which a writ of error was taken to the United States supreme court, which held that the state courts had no jurisdiction after the filing of the petition and bond for removal, gave costs in that court to defendant, and remanded the suit to the state court, with instructions to accept the bond, and proceed no further in the suit. The mandate did not authorize the state court to award costs. Thereafter the state court awarded costs to defendant, which not being paid, this application was made by defendant to stay proceedings in the circuit court until the payment by plaintiff. Held that, although the state court had no authority to award costs, the application for a stay being in the discretion of the court, and the proceedings not having been vexatious in any way, and the highest court of the state having held that plaintiff was right in continuing his proceedings there, the stay should not be granted, and plaintiff might continue his action on payment to defendant of the costs awarded in the supreme court of the United States. Tugman v. National S. S. Co. (C. C. 1887) 30 Fed. 802, judgment affirmed National S. S. Co. v. Tugman (1892) 143 U. S. 28, 12 Sup. Ct. 361, 27 L. Ed. 87. CITED WITHOUT DEFINITE Fidelity Trust Co. v. Gill Car Co. (C. § 1021. (Jud. Code, § 39.) Time for filing record; return of record, how enforced. In all causes removable under this chapter, if the clerk of the State court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to remove the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall, on conviction thereof in the district court of the United States to which said action or proceeding was removed, be fined not more than one thousand dollars, or imprisoned not more than one year, or both. The district court to which any cause shall be removable under this chapter shall have power to issue a writ of certiorari to said State court commanding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this chapter for the removal of the same, and enforce said writ according to law. If it shall be impossible for the parties or persons removing any cause under this chapter, or complying with the provisions for the removal thereof, to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the district court shall make an order requiring the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty, as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said district court shall require the other party to plead, and said action or proceeding shall proceed to final judgment. The said district court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid. Act March 3, 1875, c. 137, § 7, 18 Stat. 472. Act March 3, 1911, c. 231, 39, 36 Stat. 1099. Notes of Determination of right to removal.A federal court may determine the right to remove a case from a state court independently of the jurisdiction and determination of the state courts in view of this section and section 1011, ante. Chesapeake & O. R. Co. v. McCabe (1909) 29 Sup. Ct. 430, 434, 213 U. S. 207, 53 L. Ed. 765. Order by state court to certify record.-In Noble v. Massachusetts Ben. Ass'n (C. C. 1891) 48 Fed. 337, it was held that, in view of the provisions of this section, a removal might be effected by simply filing the petition and bond, without presenting it to a judge of the state court, or in open court for approval. But see, contra, cases in notes to § 1011, ante. An order of a state court directing its clerk to certify the record in a cause to a federal court, entered after the latter court has ordered a removal of the cause, is not appealable, since he was bound to do it without direction, as required by this section. Mayo v. Dockery (1900) 37 S. E. 62, 127 N. C. 1. Necessity for and office of certiorari. -A writ of certiorari is not required Decisions for the removal of a cause from the state to the federal court. Such writs are issued for the purpose of bringing up the record and other proceedings from the state court, and to notify the latter court that the cause has been removed so that no further proceedings may be had therein. Abranches v. Schell (C. C. 1859) Fed. Cas. No. 21. A certiorari is not necessary where the record of the state court is already before the federal court. Scott v. Clinton & S. R. Co. (C. C. 1876) Fed. Cas. No. 12,527. Where, by stipulation of the parties, certain pleadings in the state court have been taken out of the case, upon removal the circuit court will not grant a certiorari to order the clerk of the state court to add such pleadings to the record. Wilkinson v. Delaware, L. & W. R. Co. (C. C. 1885) 23 Fed. 562. That the entire record of a cause removed to a federal court has not been returned does not justify remanding cause, but remedy of party complaining is by mandamus or certiorari. Miller v. Soule (D. C. 1915) 221 Fed. 493. Cited without definite application, Knoblock v. Southern Ry. Co. (C. C. 1902) 112 Fed. 926. Sec. 1035. Districts containing more than one division; where suit to be brought; transfer of criminal cases. 1036. Suits of a local nature, where to 1040. Civil causes may be transferred 1041. Upon creation of new district or division, where prosecution to be instituted or action brought. 1042. Creation of new district, or transfer of territory not to di Sec. vest lien; how lien to be enforced. 1043. Commissioners to administer oaths to appraisers. 1044. Transfer of records to district court when a Territory becomes a State. 1045. District judge shall demand and compel delivery of records of territorial court. 1046. Jurisdiction of district courts in cases transferred from territorial courts. 1047. Receivers to manage property ac- 1048. Suits against receiver. 1050. Certain persons not to be masters § 1022. (Jud. Code, § 40.) Capital cases; where triable. The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience. R. S. § 729. Act March 3, 1911, c. 231, § 40, 36 Stat. 1100. Notes of Scope and intent of this chapter in general. The scope and intent of this chapter and chapters 2, 3, ante, must be ascertained by construing them as an entirety, and they treat of parties and subjects-matter within the jurisdiction of district courts, and also of places where suits shall be instituted. Smith v. Farbenfabriken of Elberfeld Co. (1913) 203 Fed. 476, 121 C. C. A. 598. Inconvenience warranting trial in another county.-The court's decision that "great inconvenience" prevented the trial being held in the county where the crime was committed is conclusive after verdict. Case of Fries (C. C. 1799) Fed. Cas. No. 5,126. The prisoner may be tried at a reg Decisions ular session without any express adju dication by the court that there would be inconvenience in having the trial at a special session, where neither the prisoner nor the United States makes any application to the court upon the subject, or any objection to the time or place of trial. U. S. v. Cornell (C. C. 1820) Fed. Cas. No. 14,868. County in state of insurrection.Where nearly the whole county is in a state of insurrection, and is occupied by a military force, a trial for treason may be held in another county. Case of Fries (C. C. 1799) Fed. Cas. No. 5,126. Cited without definite application, Rosecrans v. U. S. (1897) 17. Sup. Ct. 302, 304, 165 U. S. 257, 41 L. Ed. 708. § 1023. (Jud. Code, § 41.) Offenses on the high seas, etc., where triable. The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought. R. S. § 730. Act March 3, 1911, c. 231, § 41, 36 Stat. 1100. 1. "Offenses" within the statute. 3. "Out of the jurisdiction of any particu- 4. "District" within the statute. the 1. "Offenses" within the statute.Offenses, means offenses against the United States. (1893) 20 Op. Atty. Gen. 590. Death as well as the mortal stroke must happen on the high seas in order to constitute murder there. When the death happens on shore the offense is not cognizable under the statute. U. S. v. McGill (C. C. 1806) Fed. Cas. No. 15,676, 4 Dall. 426, 429, 1 L. Ed. 894. 2. "High seas" defined.-The waters inclosed between the shore and the government breakwaters in Lake Erie at the port of Buffalo, without as well as within the line designated on the government chart as "Buffalo Harbor Line," constitute a "haven," and not "high seas," and an assault with a dangerous weapon committed on a vessel belonging to the United States or citizens thereof anchored in such waters is within the state, and not the federal, jurisdiction. Ex parte O'Hare (1910) 179 Fed. 662, 103 C. C. A. 220, reversing order (D. C. 1909) 171 F. 290. And see notes under section 10445, post. 3. "Out of the jurisdiction of any particular state or district" within the statute. The words "out of the jurisdiction of any particular state "mean out of the jurisdiction of any particular state of the United States. U. S. v. Furlong (1820) 5 Wheat. 184, 200, 204, 5 L. Ed. 64. If the officers of a foreign vessel, sailing from a United States port, which, after passing the three-mile limit, took aboard men and arms for an expedition in violation of the neutrality law, had prepared for sailing, and had taken aboard extra boats while in port, with knowledge of the proposed expedition, they were guilty of the crime in the district from which they sailed. Wiborg v. U. S. (1896) 16 S. Ct. 1127, 163 U. S. 632, 41 L. Ed. 289, modifying judgment U. S. v. Wiborg (D. C. 1896) 73 Fed. 159. A homicide committed on board of the hospital ship Relief while stationed at Olongapo, P. I., by the acting master of the vessel, who committed this act by order of the commanding officer of the ship, occurred "out of the jurisdiction of any particular State or district," and the parties accused may be tried in any judicial district either in a State or a Territory of the United States into which they shall be first brought. (1909) 28 Op. Atty. Gen. 24. A vessel was en route to Alaska, and the prisoner was delivered to the United States marshal at Cordova, Alaska, the first American port touched after the affray. On motion of the United States District Attorney for a warrant to remove the prisoner to the Western District of Washington for trial, held, under this section, the defendant is triable in the district court of Alaska. U. S. v. Murphy (1910) 4 Alaska, 275. This section does not exclude the jurisdiction of the consular tribunal in Japan given by treaty to try offenses committed in that country, where the offense was committed on an American vessel in the waters of such country. In re Ross (1891) 11 Sup. Ct. 897, 140 U. S. 453, 35 L. Ed. 581, affirmed In re Ross (C. C. 1890) 44 Fed. 185. The criminal jurisdiction of the courts of the United States extends to the island of Navassa, and an indictment for murder committed there may be tried in the district into which the offender is first brought, as provided by this section in cases of offenses committed on the high seas, or elsewhere, out of the jurisdiction of any particular state or district. Jones v. U. S. (1890) 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Smith v. Same (1890) 137 U. S. 224, 11 Sup. Ct. 88, 34 L. Ed. 700. Jurisdiction over strip of territory known as "No Man's Land" considered in (1887) 19 Op. Atty. Gen. 66; (1890) 19 Op. Atty. Gen. 477. 4. "District" within the statute.-A district is a judicial district defined by act of Congress pursuant to the constitutional requirements that criminal prosecutions shall be in the state and district in which the offense shall have been committed, which district shall have been previously ascertained by law, but when the offense was not committed within any state the trial shall be at such place or places as the Congress shall have directed. U. S. v. Newth (D. C. 1906) 149 Fed. 302. The word "district" includes every territory within which there are courts regularly organized and having jurisdiction over offenses against the United States. (1909) 28 Op. Atty. Gen. 24. And see In re Bollman (1807) 4 Cranch, 75, 135, 2 L. Ed. 554, holding that the act of 1790 not containing the words "or district" did not apply to offenses committed outside of a state but within territories having regularly established courts competent to try those offenses. And see Homicide Committed on Hospital Ship (1909) 28 Op. Atty. Gen. 24, holding that it was probably as a result of such decision that the words "or district" were added. 5. "Found" or "brought," within the statute.-To be "brought" into a district, within this section, one must be first apprehended, and it is not enough that he merely "arrive" in the district. Thus, where an offense was committed on the high seas, and the offender was not taken into custody until he was found and apprehended in one of the districts of California, he must be tried in that district, although the vessel on which the offense was committed had previously touched at Hawaii, and a complaint was filed and a warrant of arrest-which was returned unexecuted because of the offender's departure from the district of Hawaii before its attempted service-was issued there. Kerr v. Shine (1905) 136 Fed. 61, 69 C. C. A. 69. An offender is "found" within this section, where, having committed an offense on the high seas, he is apprehended after coming into port, while the word "brought" means taken into custody on the ship and carried into port. U. S. v. Townsend (D. C. 1915) 219 Fed. 761. 6. Jurisdiction of courts.-To give the court jurisdiction the offense must |