judge, a part of which, besides accepting (approving) the petition and bond, is the surrender of jurisdiction by ceasing to proceed further, the presumption is conclusive that congress did not intend such a breach of comity as thus to permit litigants to transfer cases from the state courts to the federal, upon a showing that certain facts existed, and upon compliance with certain requisites, without permitting the state court to determine whether such facts did exist, or such requisites had been complied with. It is true that the act gives the federal court power to enforce the transfer where it is refused by the state court or clerk, but this affords no argument, for the supreme court can compel the federal circuit court to act, where it refuses, by mandamus. But it by no means follows that this power deprives the circuit court of power or jurisdiction to act in the given case. But it rather supports the contrary view.1

$24. Upon filing bond and entering the order for a transfer, the clerk on payment of fees makes the transcript. The petition and bond being filed, the state court proceeds no further, but it usually enters an order transferring the cause to the United States circuit court, though perhaps an order is unnecessary. This order being entered, as is the usual practice, whether necessary or not, the clerk makes a certified transcript of the record and delivers it to the party applying for the transfer upon payment of costs, and the order transferring is the final judgment, but from it no appeal to the supreme court will lie.2

§ 25. Practice under former acts where court refused to transfer. Under the acts of congress prior to that of 1875, if the state court refused to transfer a case, the point could be reserved and assigned for error in the state supreme court; and if that court refused to reverse the case upon this ground, a writ of error might be prosecuted from the supreme court of the state to the supreme court of the United States.3

$26. Remedies where a transfer is erroneously granted or re

12 Southern L. Review, 315; § 15, Judge Dillon's article on removal of causes. If the proper application is made, subsequent proceedings in the state court are nugatory. Dillon on

Transfers, 66, § 15 and notes.

2 Atlas Mutual Ins. Co. v. Byrus, 45 Ind. 133.

3 Gaines v. Furantes, supra.

fused. But if the doctrine laid down in Osgood v. the Railroad Company, supra, shall prevail, the only remedy for the suitor applying for a transfer which is refused is, by certiorari or mandamus from the federal circuit court, to the state court; but it may be confidently predicted, that this ruling cannot be sustained, and if not, the practice will continue as before. If the state court refuse the transfer, the party applying may have his election to apply to the federal circuit court for a certiorari, or to reserve the point, and if he be defeated in the action, to prosecute an appeal to the supreme court; and if the application be not sustained there, and the case reversed with an order, to grant the transfer, then to apply to the supreme court for a writ of error, to the supreme court of the United States. If the former remedy be elected and the certiorari be refused, a writ of error or appeal to the supreme court of the United States may be prosecuted at once. If the transfer be improperly granted, it would be the more available mode of procedure, to move in the federal circuit court to remand the case, and if the motion were refused, to reserve the point, and prosecute a writ of error or appeal to the supreme court of the United States after final judgment. For although a transfer is a final judgment, an appeal upon it would not lie to the supreme court, for it would be a fruitless victory to reverse the case, while the same case was in progress in the federal court, which would not probably respect any judgment which the supreme court of the state would render concerning it.2

$27. Construction of the statute in cases enumerated in the sixth specification. The provision of the act of 1875, enumerated in the sixth specification of causes of removal, is taken from the act of 1866; and is similar in its provisions to that act. In a case under that act of 1867, which is different in this respect, decided by a divided court, the supreme court gave the same a very narrow construction, and virtually decided that if any of the real parties in interest were citizens of the same state, the federal court would have no jurisdiction and the transfer would be improper.5

1 Act 1875, supra, § 3.

2 Ins. Co. v. Morse, 20 Wall. 445; Ins. Co. v. Dunn, 19 id. 214.

3 Ante, § 7.

R. S. U. S. § 639, subd. 2.

5 Case of the Sewing Machine Companies, 18 Wall. 553.

But in Osgood v. the Chicago, etc., Railroad Company, supra, it was held under the second subdivision of the six hundred and thirty-ninth section of the revised statutes, that where the controversy which involved the rem was between citizens of different states, that the jurisdiction would be sustained, notwithstanding other parties, citizens of the same state as some of their adversaries, may have a collateral or incidental interest.1 In a recent case in New Jersey where a bill was filed in the state court against three defendants, two of them citizens of that state, and one a citizen of New York, the citizens of New Jersey disclaimed, and the citizen of New York filed his petition for a transfer. It was held that notwithstanding the case must be determined upon the bill which showed all the defendants to be proper parties, the transfer should be granted; that the New York party had a right to have the case as to him transferred. And it may perhaps be safely said that under this subdivision, the defendant may, if an alien or a nonresident and the other necessary facts concur, have any case brought against him by a resident of the state, where the suit is brought in a state court, where the controversy between him and the plaintiff can be settled without the presence of the other defendants transferred notwithstanding the joinder with him of other defendants, citizens of the same state as the plaintiff.

'Burdick v. Hall, 8 Chicago Legal ter et al. 17 Law Register, N. S. 376; News, 185. Dillon on Transfers, 34, § 9 et seq.

* New Jersey Zinc Company v. Trot

CHAPTER VII.

OF EVIDENCE IN A CIVIL ACTION.

§1. Introductory.

2. Definition of evidence.

3.

Original documents admissible in evidence.

4. Introductory proof where public document offered.

5. Preliminary proof of execution of private writing.

6. Where written instrument foundation of action or defense.

7. Further exceptions to the rule requiring proof.

8.

How to obtain the production of written evidence in the hands of the adverse party.

9. Inspection of written evidence in the hards of the adverse party, with a view to plead or prepare for trial, how obtained.

10.

Of public records and documents.

11. Rules of the common law presumed to be understood.

12. Provisions of the code, printed statutes.

13. Copies of the private statutes of other states proved by certificd copies, etc.

14. Records and transcripts of records of justices of the peace.

15. Justices' records, continued.

16. Why the clerk must certify, and what clerk.

17. Effect in evidence of authentication of judgment of a justice.

18. Certificate of a notary public, evidence, when.

19. Qualification of the last section.

20. Certificate of secretary of state, evidence, etc.

21. Exemplification of records of courts and records of deeds and office books,

evidence.

22. Records and judicial proceedings evidence, when.

23. Act of congress. Provisions of.

26. Minor provisions of the code not enumerated, proof unwritten law, etc.

27. Interrogatories.

28. Answers to interrogatories.

29. Form of interrogatories.

30. Respondent may show cause against answering interrogatories.

31. Answers to interrogatories can only be used by the party filing them.

32. Practice of filing interrogatories not much favored.

33. Witnesses, who competent.

34. Exceptions in the last section.

35. Construction of the exceptions.

§36. Construction of exception concerning husband and wife.

37. Summoning witnesses, manner of; sabpoena.

38. Service of subpœna.

39. Witnesses cannot be compelled to attend unless within county of the trial or the one adjoining.

40. In what cases fees must be tendered.

41. In what cases a witness may be attached.

42. Attachment, service, etc.

43. Depositions.

44. Depositions taken in term or vacation without order.

45. Notice of taking depositions.

46. Length of time notice given.

47.

48.

Attendance of wituesses.

Witness may be summoned and compelled to give deposition. 49. Commission to take depositions.

50. Who may take depositions, and how they must be certified.

51. Depositions taken in a foreign country, how certified.

52. Depositions, how written and certified.

53. Depositions, how forwarded to the court where case pending.

54. Depositions to be on file one day before trial.

55. Depositions, when to be published.

56. Objections appearing before publication must be taken advantage of be

fore publication.

57. Motion to suppress depositions after publication.

58. Where deposition is suppressed in certain cases, it may be retaken.

59. Motion sometimes made and reserved till trial.

60. When case dismissed and rebrought, depositions may be used. 61. Depositions of persons infirm or unable to attend.

62. Depositions de bene esse.

63. Depositions must be filed.

§1. Introductory. It is not within the purpose of this treatise to enter into any lengthy discussion of the general subject of evidence, as there is nothing that could be said upon the subject which could render this very practical and interesting branch of the law more easy of acquisition, or better tend to its thorough understanding than the admirable treatises of Starkie, Greenleaf and Phillips, with the American notes. It may suffice, therefore, in this chapter to note the several provisions of the code, or other statutes, which are peculiar, and which in any way change, modify or aid the law of evidence in civil actions, as laid down in the text-books; simply pointing out and explaining those portions of the law of evidence which are local to this state.

§2. Definition of evidence. For convenience, it may not be