6. The petition must be accompanied by a good and sufficient bond or undertaking to the effect prescribed.

7. Upon the petition, when filed, an application must be made to the court, on notice to the plaintiff, or order to show cause, in the ordinary course, and with the ordinary incidents of a motion. Any objection, if existent, may be made patent by affidavit on the part of the plaintiff, in the usual course. See Denniston vs. New York and New Haven Railroad Company, 2 Abb., 278; affirmed, 2 Abb., 415. The form of an order to show cause for the above purpose, will be found in Carpenter vs. New York and New Haven Railroad Company, 11 How., 481 (486).

In Illius vs. The New York and New Haven Railroad Company, 3 Kern., 597, an ex parte order is stated to have been obtained, but such can hardly be considered the correct practice, though refused in that case to be vacated.

This done, and no sufficient objection being shown, it becomes the positive duty of the state court to make the order, and to proceed no further with the cause. And, once made, that order cannot be vacated or interfered with. Livermore vs. Jenks, 11 How., 479. Nor is the refusal of such an order appealable to the Court of Appeals. Illius vs. New York and New Haven Railroad Company, 3 Kern., 597. In case of any irregularity the remedy seems to lie by application to the federal court. See same case. See also Cooley vs. Lawrence, 5 Duer, 605 (608); 12 How., 176 (181), and case cited.

The petitioner must perfect the proceeding by filing in the Circuit Court copies of the process against him, and appearing in that court, and by entering special bail in the cause, if bail was originally requisite, or has been given therein.

He must do so at once, and before the next term of such Circuit Court, and must proceed regularly according to its rules. See, as to further course of proceeding, Martin vs. Kanouse, 1 Blatchf., C. C. R., 149, referred to, 11 How., 567.

attach

He cannot, however, deprive the plaintiff of the benefit of any ment issued in the state court, but such attachment holds good, to abide the event of the removed proceeding.

The following points have been decided in the state courts upon the subject:

statute.

The mere service of a notice of retainer upon the attorney for the adverse party is not the entering of appearance contemplated by the The notice must be filed with the clerk, simultaneously with the petition; thus filed, it satisfies its provisions. Field vs. Blair, 1 C. R. (N. S.), 361; affirming same case, 1 C. R. (N. S.), 292. A defendant who serves notice of retainer, before filing his petition, does so, however, at

his peril, for it is in the power of the plaintiff, by filing such notice, to make it an entry of appearance; if so filed, it will be a bar. Same case, 1 C. R. (N. S.), 293, rule 11.

The petition, to be regular, should state affirmatively, upon its face, that the plaintiff is a citizen of the state in which the suit is brought. This defect is not, however, fatal; where the facts exist, it may be supplied by filing a subsequent affidavit. Same case, 1 C. R. (N. S.), 361. Once removed, the federal court has entire possession of the case, both as to matters of law and of practice, and the state laws and state rules are no further applicable. Suydam vs. Ewing, 1 C. R. (N. S.), 294. To bring the statute into operation, the case must be brought within its terms and wholly covered by it. Where, therefore, three out of four plaintiffs were aliens, and the fourth a citizen, an application of the defendant was denied. The statute makes no provision for such a case. Denniston vs. The New York and New Haven Railroad Company, 2 Abb., 278; affirmed, 2 Abb., 415. See also, as to the duty of the state court to supervise the proceedings on the application, and to see, before granting the order, that the statute is fully complied with, Cooley vs. Lawrence, 5 Duer, 605; 12 How., 176, above referred to.

The above doctrine as to parties is, it is true, somewhat qualified in Livermore vs. Jenks, above cited, where the fact that a resident, against whom no relief was really sought, had been joined as a nominal defendant, was considered to have been no bar to the granting of an order, on the petition of the actual defendants, citizens of another state. The decision is however at special term, and the actual adjudication turned upon another point, viz: the inability of the state court to take any action whatever, after the order has been once actually granted.

In Carpenter vs. New York and New Haven Railroad Company, 11 How., 481, a petition filed with notice of appearance after the defendant was in default for not answering, but before judgment had been actually entered by the plaintiff, was held to be still in time, and sufficient to stay proceedings and to effect the removal.

Any action of the defendant in open court, equivalent to an actual entry of appearance, has been held to bar the application. The statute must be strictly followed, and the jurisdiction of the court first seized of the cause continues, unless the case be clearly brought within its terms. Thus, where, on a motion for an injunction, the defendants had appeared, read affidavits, and resisted such motion in the ordinary form, such action was held to amount to a virtual entry of an appearance, and a subsequent petition for removal was denied. Cooley vs. Lawrence, 5 Duer, 605; 12 How., 176, above noticed.

The giving of bail upon arrest is not, however, such a proceeding as will amount to a virtual appearance. Durand vs. Hollins, 3 Duer,

686. The words "entering an appearance," import an act in court, by which the defendant concedes that the state court has full juris diction over him.

But if, on the other hand, the defendant move to be discharged from the arrest, the motion is a concession of the above nature, and the right to remove will be lost, the state jurisdiction having been actually invoked. Dart vs. Arnis, 19 How., 429.

The form of an order for removal will be found in Carpenter vs. New York and New Haven Railroad Company, 11 How., 481 (485), above cited. As to the possibility of provision being made by the court below on granting the order, for the continuance of an existent injunction, see Liddle vs. Thatcher, 12 How., 294.

Although not strictly pertinent to this stage of the action, it may be convenient, before quitting the subject of removal into the United States courts, to notice that the section of the United States judiciary act, above cited, contains provisions for a similar removal at any time before trial, on its being made apparent that a controversy between two parties, citizens of the same state, where the matter in dispute exceeds $500, exclusive of costs, involves a question as to the validity of conflicting grants of two different states. This proceeding is, in its main features, analogous to the foregoing, but differs materially both as to the time when it is entertainable, and also, in the fact that it may be made by either party. Nor is a petition necessary in this case; all that is requisite for the purposes of the motion being that the fact should appear by affidavit. The application is likewise directed to the obtaining of information as to the adversary's claim in the first instance, and the issues on that branch of the case are narrowed down to the claims of the parties as stated.

The proceeding being one of comparatively rare occurrence, will not again be adverted to, the above notice being sufficient for all practical purposes.

The statutes of the United States also contain provisions for a similar removal of actions brought against any officer, or other person, on account of any act done under, or under color of the revenue laws, or of any right, authority, or title, set up, or claimed, under them. See act of March 2d, 1833, chapter LVII., section 3, Dunlop's Collection, page 830.

The proceeding is, however, effected by means of writ of certiorari, or habeas corpus, issued by the federal tribunal, on petition of the defendant, and not by any application to the state court in which such controversy is pending. As such it falls wholly beyond the limits. of this work, though a notice of it, at the present juncture, may be convenient. It must, by the terms of the provision, be made before

trial. If delayed until afterwards, the jurisdiction of the state court cannot it would seem, be interfered with.

§ 160. Appearance and its Incidents.

Under the Code, an actual entry of appearance is no longer necessary. Any act on the part of the defendant, admitting the pendency of the controversy, or the jurisdiction of the court, has that effect, unless expressly qualified; and no such entry is necessary to enable the plaintiff to pursue his remedy should the defendant neglect, or omit, to take action in the matter.

Rule 11 (7) makes express provision on the subject of the present practice, as follows:

Service of notice of an appearance, or retainer generally, by an attorney for the defendant, shall, in all cases, be deemed an appearance. And the plaintiff, on filing such notice, at any time thereafter, with proof of service thereof, may have the appearance of the defendant entered as of the time when such notice was served.

As to the expediency and effect of this last proceeding by the plaintiff, in cases where a removal into the United States courts may be applied for, see preceding section.

Where the summons is for a money demand, on contract, and the demand so made is correct, and no actual defence is contemplated, the giving of notice will be an useless ceremony.

The same will usually be the case where the defendant is a mere nominal or formal party, and has been served with the notice of no personal claim, prescribed by section 131. If he defend under such cir cumstances, he does so at the risk of costs if his defence be adjudged unreasonable. If suspicious of the plaintiff's proceedings, or desirous of obtaining information, he may appear in the first instance without incurring that risk, provided only he refrains from putting in an

answer.

Where, however, no such notice is served, and the summons is one for relief, or where, on an ordinary money demand, that demand is incorrect, and the complaint unverified, the precaution is one that should never be omitted. Even though he may really contemplate no actual defence, the defendant gains by it the power of supervising the plaintiff's proceedings on the assessment of his claim, or on the application for the judgment under section 246, and also during the proceedings consequent on that application, if any.

It has been held that service of such notice, even if made after actual default to answer, will still entitle the defendant to the notice of assess

ment provided for by section 246, subdivision 1, provided such service be made before the actual entry of judgment. See Abbott vs. Smith, 8 How., 463; approved, and the case next cited stated to be substantially overruled, in Carpenter vs. New York and New Haven Railroad Company, 11 How., 481 (483). The contrary conclusion is come to in White vs. Featherstonhaugh, 7 How., 357. All are special term decisions, the point coming up for adjudication directly in the last, and collaterally in the other cases.

To be effectual in entitling the defendant to notice of the plaintiff's application for judgment in cases where the summons is for relief, the notice must, however, be served before default suffered. See section 246, subdivision 2. And it is the safer course to do so in all cases.

To enable a party to retain and appear by an attorney, he must, as prescribed by the Revised Statutes (2 R. S., 276, section 11), be of full age and sound mind. If deficient in either of these requisites, the proceeding will be invalid. See, as to the case of an idiot, Rogers vs. McLean, 31 Barb., 304, where an appearance entered by a foreign guardian, without service on the defendant himself, was declared to be a nullity.

An infant must, in all cases, appear by his guardian ad litem, and a lunatic by his committee. Before the amendment of section 114, in 1851, a feme covert could only intervene by her next friend; but, since that amendment, she may instruct her attorney or counsel in the ordinary manner, in those cases in which she is authorized to sue or be sued alone. See, as to the practice before that amendment, Phillips vs. Burr, 4 Duer, 113.

In Eckerson vs. Vollmer, 11 How., 42, it was held that, in a case where the wife was joined with the husband, the latter is bound, where the action does not concern her separate property, to put in a joint appearance for both, even although the summons was served on him only.

As to the peculiar right of a landlord, or any person having any privity of estate with him or with his tenant, to enter an appearance, either with or without such tenant, in a case where the latter has been served with process in ejectment, see 2 R. S., 342, 343, section 17.

Provision is also made, in respect to the service of notice of appearance in proceedings to compel the determination of claims to real estate, by chapter 511 of Laws of 1855, p. 943, section 2, amending the provisions of the Revised Statutes on that subject.

A defendant not actually served may appear voluntarily, in a case where judgment is prayed against him, and that step is really necessary for the protection of his interest. Higgins vs. Rockwell, 2 Duer, 650; Lyle vs. Smith, 13 How., 104. In case he does so, and discloses