the laws of the State, or the practice of the State court (Shaft v. Phoenix M. L. Ins. Co., 67 N. Y. 544), and it is not a valid objection to removal that process was not served in conformity to the laws of the United States. (Sayles v. Northwestern Ins. Co., 2 Curt. 212.) Where defendant is served with process, and has answered, the court has personal jurisdiction over him, and a second service of process is not necessary. (Ward v. Todd, 2 Morr. Trans. 1.) That proof of publication of notice to defendant was not made prior to the order for removal will not prevent the Federal court from having jurisdiction (Turner v. The I. B. & W. R. Co., 8 Biss. 280; and where defendant voluntarily appears and answers, the court acquires jurisdiction irrespective of the want of a replication. (Turner v. The I. B. & W. R. Co., 8 Biss. 280.) The filing of the petition is not a waiver of the right to insist that service of process was procured by fraud. (Moynahan v. Wilson, 6 Cent. L. J. 28.) Where the petition was reserved for the decision of the supreme court, and the latter dismissed the petition and remanded the cause, the circuit court has no jurisdiction. (Kimball v. Evans, 93 U. S. 329; see Fasnacht v. Frank, 23 Wall. 416.)

§ 111. Time to file record-Misfeasance of clerk-Certiorari.-That in all causes removable under this act, if the term of the circuit court to which the same is removable, then next to be holden, shall commence within twenty days after filing the petition and bond in the State court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said circuit court and enter appearance therein; and if done within said twenty days, such filing and appearance shall be taken to satisfy the said bond in that behalf; that 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 be deemed guilty of a misdemeanor, and, on conviction thereof in the circuit court of the United States to which said action or proceeding was removed, shall be punished by imprisonment not more than one year, or by fine not exceeding $1,000, or both, in the discretion of the court. And the circuit court to which any cause shall be removable under this act 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 act for the removal of the same, and enforce said writ according to law; and if it shall be impossible for the parties or persons removing any cause under this act, or complying with its 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 circuit 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 circuit court shall require the other party to plead, and said action or proceeding shall proceed to final udgment; and the said circuit 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 a copy of the record to be filed as aforesaid. (Act of March 3, 1875, sec. 7; 18 U. S. Stats. 470; 1 Sup. Rev. Stats. 175. Rev. Stats. sec. 645 superseded.)

See Desty's REMOVAL, Sec. 107.

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The record. The copy of the record must be duly certified (Martin v. Kanouse, 1 Blatchf. 149), and detached papers may be certified to, and may constitute the record if duly certified. (Commercial & Sav. Bk. v. Corbett, 5 Sawy. 172.) The cause is removed as of the date when the motion is made, and the papers should be certified as of that date (Clark v. Delaware etc. Canal Co., 11 R. I. 36); but it is not sufficient to enter merely a copy of the summons (McBratney v. Usher, 1 Dill. 367); “ process" is equivalent to proceedings. (McBratney v. Usher, 1 Dill. 367.) It is not necessary that the fact of alienage or citizenship should appear on the record of the original proceedings. (Ladd v. Tudor, 3 Wood & M. 325; Franciscus v. Surget, 6 Robt. 33.) Where a cause has been removed, and all the papers subsequently destroyed by fire, and the parties admit the cause was transferred in accordance with the statute, the court may presume that the requisite citizenship was shown (Railroad Company v. Ramsey, 22 Wall. 328); so the record may be amended by consent (Hodgson v. Bowerbank, 5 Cranch, 303; see Parker v. Overman, 18 How. 137); and where the record at the time of removal did disclose the fact, the transcript in the Federal court may be amended so as to conform to the State record (Kaeiser v. Illinois Central R. Co., 6 Fed. Rep. 1); but whether the record in the State court may be amended so as to conform to the statute after the term has passed, quære? (Kaeiser v. Illinois Cent. R. Co., 6 Fed. Rep. 1; 2 McCrary, 137.) An amendment to the transcript may be filed where the record does not disclose the requisite citizenship. (Kaeiser v. Illinois Cent. R. Co., 6 Fed. Rep. 1; 2 McCrary, 137.)

Time to file record. The jurisdiction is not complete in the Federal court before the day prescribed by the statute, although a transcript has been filed (Matt. of Barnesville & M. R. Co., 4 Fed. Rep. 10; 2 McCrary, 216); nor can the circuit court proceed until copies of the proceedings are entered there. (Fisk v. Union Pac. R. Co., 6 Blatchf. 362; Clippenger v. Mo. Val. L. Ins. Co., 1 Flippin, 456; 8 Chic. L. N. 155.) The provision as to the filing of the transcript is mandatory only as a matter of practice, and the defect may be cured by allowing it to be filed nunc pro tunc. (Woolridge v. McKenna, 8 Fcd. Rep. 650.) It may be filed at any time within the period allowed by the State statute (Railroad Co. v. Koontz, 3 Morr. Trans. 34; King v. Worthington, 3 Morr. Trans. 101),

before the commencement of the next term after the removal (Bowen v. Kendall, 23 The Reporter, 538); and it is sufficient, although a term devoted exclusively to criminal cases has intervened. (Jones v. Ocean. St. N. Co., 11 Blatchf. 406.) The proper time for entering into the circuit court "copies of the papers," etc., is on the first day of the next session after the filing of the petition, etc., but in any event the moving party has twenty days to file a copy of the record. (Clippenger v. Mo. Val. Ins. Co., 1 Flippin, 456; S. C., S Chic. L. N. 155.) The only necessary consequence of failure to file the record by the first day of the next term after application, or within twenty days thereafter, is to create a liability on the bond. (Kidder V. Featteau, 2 Fed. Rep. 616; 1 McCrary, 323.)

Duty of clerk.-If a clerk refuses to furnish copies of the record and proceedings, this court will allow parties to supply them (Akerly v. Vilas, 2 Biss. 110); and the petitioner may file a copy thereof in the circuit court. (Akerly v. Vilas, 2 Biss. 110.) If he has done all that is necessary, he may perfect the removal by entering in the Federal court at the proper time copies of proper papers, and his appearance and special bail if necessary. (Hatch v. Chicago, R. I. etc. Co., 6 Blatchf. 105.) The clerk of the State court has no right to withhold the transcript, although an appeal has been taken. (Akerly v. Vilas, 2 Biss. 110.)

Certiorari.--A removal is effected' by certiorari from

the Federal court, or by order of the State court. (Nat. Union Bk. v. Dodge, 11 The Reporter, 641.) The writ is often resorted to as a means of effecting, pursuant to law, the removal of the record from one court to another (U. S. v. McKee, 4 Dill. 1; S. C., 3 Cent. L. J. 292; State v. Gibbons, 1 South. 44); so a defect or omission in the transcript may be cured by certiorari. (Dennis v. Alachua Co., 3 Woods, 683; Cook v. Whitney, 3 Woods, 715.) As where a copy of the record is incomplete (Commercial & Sav. Bank v. Corbett, 5 Sawy. 172; Dennis v. Alachua Co., 3 Woods, 683; Cook v. Whitney, 3 Woods, 715); but the writ is unnecessary when the record is already before the Federal court. (Scott v. Clinton & Springfield R. Co., 6 Biss. 529; S. C., 8 Chic. L. N. 210; In re Wells, 3 Woods, 128; S. C., 17 Alb. L. J. 111.) The object of the writ is to require the State court to certify the copy of the record (Broadnax v. Eisner, 13 Blatchf. 366); and requires the clerk to certify to the same (Broadnax v. Eisner, 13 Blatchf. 366); and his authentication is sufficient without the certificate of the judge (Osgood v. Railroad Co., 6 Biss. 330); and the authentication may be on separate sheets of paper. (Commercial & Sav. Bank v. Corbett, 5 Sawy. 172.) The Federal court may issue a certiorari to the State court, to which a return that an appeal had been taken would be insufficient. (Ellerman v. New Orleans R. Co., 2 Woods, 120; Insurance Co. v. Morse, 20 Wall. 445; see Bell v. Dix, 49 N. Y. 232.) This section provides that this writ shall command the State court to make return of the record of the cause removed (U. S. v McKee, 4 Dill. 1; S. C., 3 Cent. L. J. 292); and the mandate that the State court shall proceed no farther in the cause is obligatory, as well on appeal as in the court of original jurisdiction. (Holden v. Putnam F. Ins. Co., 46 N. Y. 1.) The enforcement of proceedings for removal may be by mandamus (Spraggins v. County Court, Cooke, 160, citing Ladd v. Tudor, 3 Wood. & M. 325; and see Ex parte Turner, 3 Wall. Jr. 258); but without express authority by statute, a Federal court cannot issue a writ of mandamus to the State court (Hough v. Western Trans. Co., 1 Biss. 425; see In re Crombie, 2 Biss. 160; Fisk v. Union Pac. R. Co., 6 Blatchf. 362); and no jurisdiction is conferred to issue a mandamus under the statute (Amer. U. Tel. Co.