passed March 3, 1863, entitled, "an act relating to habeas corpus, and regulating judicial proceedings in certain cases," are unconstitutional and void. The President of the United States before the passage of this act had no power of irresponsible arrest at his will, and without process or color of law. This is arbitrary power. The President has no arbitrary power and congress has none to give him. It has no power to declare his order a defence to those who execute it, if not otherwise legal. This court has jurisdiction in an action for a violation of the plaintiff's right to liberty, unless it is deprived of it by this act of congress. This is solely determined by the validity of the act itself; and it is the duty of the court to decide upon that question when properly brought before it. It is not enough that this act of congress is sufficient constitutionally to confer jurisdiction upon the United States court. It must also be sufficient to destroy the jurisdiction of the supreme court of this state, before the court is authorized to turn the plaintiff over to the United States court for redress. (Not concurring in the decision of Jones agt. Seeird, supra.)

In Patrie agt. Murray, 29 How., 312, General Term, December, 1864, MILLER J., it was decided, that the 5th section of the act of congress, passed March 3, 1863, so far as it authorizes a removal of a cause from the state court, after verdict and a trial and determination of the facts and the law, in the same manner as if the same had been originally commenced in the circuit court of the United States is, in violation of the 7th amendment of the Constitution of the United States and is null and void.

40. Q. How and in what manner must causes be transferred from the state to the United States Court?

A. In Corp agt. Vermilye, 3 John, 144, General Term, February, 1808, it was decided, by the COURT, that where the motion to transfer to the United States court is made on the ground of citizenship, the affidavit must state expressly that one of the parties is a citizen of another state.

In Vanderoort agt. Palmer, 4 Duer, 679, General Term, October, 1855, CAMPBELL, J., it was decided, that on an application to remove a cause from a state court into the United States court it is no objection that the petition is not signed by the petitioner personally, but is sufficient if signed by an attorney of the court; also it is no objection that the bond is not signed by the petitioner, but is sufficient if signed by sureties only. When the action is against a firm, commenced by service on one only, if all the defendants are citizens of another state, and the plaintiff is a citizen of this state, it is not necessary that any defendant should petition except the one served, nor that the bond should be conditioned for the appearance of any defendant except the petitioner.

In Blanchard agt. Dwight, 12 Wend., 193, General Term, June, 1834, NELSON, J., it was decided, that where application is made for the removal of a cause to the United States court, a bond in the penalty of $1000, is good security within the meaning of the act, though the sum demanded as damages in the declaration be laid at $14,000; had the defendant been holden to bail in this court, that sum would have been sufficient.

In Roberts agt. Carrington, 2 Hall, 649, it was decided that the bond should be several as well as joint.

In Livingston agt. Gibbons, 4 John., Ch., R., 96, August, 1819, it was decided by the CHANCELLOR, that where one of two defendants is a citizen of another state, and there is no joint trust, interest, duty or concern, in the subject matter of controversy, he may be allowed to appear and defend alone, so as to enable him to remove a cause into the circuit court of the United States. If a defendant intends to remove a cause into the United States court he must file his petition &c., for that purpose, at the time of entering kis appearance in this court. Where a defendant files his answer to an injunction bill, and is heard by his counsel on the merits of the bill and answer, and the court makes a decretal order in the cause, it is too late to apply for the removal of the cause to the United States court. The usual mode of appearing in this court is by entering an appearance with one of the clerks of the court. But a notice by the defendant's solicitor of an appearance, given to the plaintiff's solicitor, without an entry in the clerk's minutes, would, it seems, be binding on the party. An appearance filed with the register, is an appearance on the records of the court. And where a defendant puts in an answer, which is read in court, by consent of the opposite counsel, and ordered to be filed with the register, and a decretal order is made thereon in favor of the defendant, it is an appearance on the records of the court; and it is too late, afterwards, to petition for the removal of the cause.

In Field agt. Blair, 1 Code, R. N. S., 293, Special Term, January, 1852, MITCHELL, J., it was decided, that the act of congress is that the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause." It does not say "at the time of giving notice" of his appearance to the plaintiff's attor ney, but it refers to an act to be done in the court and to be entered there; both terms, "entering" and "in such state court" show that the act is not between the attorneys merely, but is between the defendant and the court.

In Durand agt. Hollins, 3 Duer, 687, Special Term, September, 1854, BoswORTH, J., it was decided, that filing special bail was, in legal effect, an act in court, by which the

defendant conceded that the court had full jurisdiction over him; and was, entering an appearance, according to the practice of the court. But the execution of an undertaking requisite to procure the discharge of the defendant from arrest, under the Code, is not an act of the defendant done, either in theory or in fact, in court, and is not itself entering an appearance, requiring the defendant to file a petition simultaneously for the purpose of removing a cause into the United States court.

In Cooley agt. Lawrence, 12 How., 184, 5 Duer, 605, General Term, October, 1855, HOFFMAN, J., it was decided, that the entry of an appearance in a state court must be interpreted by the course and practice of that court; and that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance. And further, when such submission has once been made, it cannot be retracted. Therefore held, where the defendants appeared by ccansel in open court, upon the argument of a motion for injunction-read affidavits to oppose it-the indorse ment of such affidavits with the names of the attorneys of the parties, and a recital of all this in an order of the court, that few acts could be more conclusive of an appearance i

the state court.

In Dart agt. Arnis, 19 Hor., 429, Special Term N. Y. Superior Court, September, 1869, PIERPONT, J., it was decided, that it is conceded that the defendant, by counsel, moved the court to discharge the order of arrest. That motion was argued and denied. The decisions seem to hold that such motion is equivalent to an entry of appearance.

In Disbrow agt. Driggs, 8 Abb., 305, N. Y. Superior Court, Special Term, April, 1859, HOFFMAN, J., it was decided, that this court has adopted the rule, not to grant an order of removal of a cause to the United States court, without notice, or an order to show

cause.

In Illius agt. The New York and New Haven Railroad Co., 3 Kern., 597, March, 1856, COMSTOCK, J., it was decidea, that an order of the supreme court removing the cause to the circuit court of the United States does not determine the action and prevent a judgment therein, nor does it affect a substantial right within the meaning of section 11 of the Code, and is, therefore, not appealable to the court of appeals. This was an order of the supreme court affirming an order at special term refusing to vacate an e parte order removing the cause to the United States court.

In Denniston agt. The New York and New Haren Railroad Co., 2 Abb., 278, 415, N. Y. Common Pleas, November, 1855, DALY and INGRAHAM, J. J., it appeared in answer to the petition of the defendants for a removal of the canse to the United States court, that the plaintiff's read affidavits of the plaintiff's showing that two of them were aliens, and that the summons and complaint were served in conformity with the statute, &c. In Carpenter agt. The New York and New Haven R. R. Co., 11 Hour., 484, N. Y. Superior Court, Special Term, October, 1855, HOFFMAN, J., it was decided that, in order to hear any objection to the right, as well as to the sufficiency of the security, it is proper that the application should be on notice, or an order to show cause. I have drafted an order to show cause, and also for the removal of the cause, which have been approved by two of the judges, and may assist in governing the proceedings in this court hereafter. Title of Cause." Special Term, October 6, 1854," "Present, Hon. MrRRAY HOFFMAN, Justice." "The defendants having this day entered their appearance in this cause, and at the same time filed a petition praying for the removal of this action to the circuit court of the United States for the southern district of New York, pursuant to the act of congress of the United States in such case provided, by a bond now filed; it is ordered, that the plaintiffs show cause, on the 9th day of October, instant, at 10 o'clock in the forenoon, at a special term of this court, to be held at the city hall in the city of New York, why the prayer of the said petition should not be granted."

In Liddle agt. Thatcher, 12 How,, 295, N. Y. Superior Court, Special Term, March, 1856, HOFFMAN, J., it was decided that, on the removal of a cause from the state court into the United States court, where there is an injunction, the order for removal may provide that the order shall not operate of itself to dissolve the injunction. Although There is no provision in the statute for continuing the injunction on such removal, as there is in cases of special bail and attachment, yet the cause may be remanded to the state court; and whether the removal carries with it the injunction in full force or not, it is important that, in case the cause is remanded, it should come back in the same situation as when it left.

In Livermore agt. Jenks, 11 How., 479, Special Torm, June, 1855, COWLES, J., it was decided that, where an order is properly made removing the cause into the United States court, the cause has passed the stage when the state court can act or take any proceeding in it. A vacating the order of removal could not empower the state court to proceed with the cause, or revest it with jurisdiction over the case in any form. There is an entire want of legal discretion on the part of the state court to retain the case longer.

In Martin agt. Kanouse, 1 Blate, f., 149, it was decided by THE COURT that, after the order of removal is made, the defendant is to perfect the proceedings by appearing in the circuit court of the United States, before the next term of that court, and entering special bail, where an order of arrest had issued in the state court, and filing copies of

the process; and the plaintiff must file a new declaration in the circuit court. And certified copies of the process and papers by which the suit was commened in the state court should be sent to and entered in the United States court.

In Clarke agt. The Protection Insurance Co., 1 Blatchf. C. C. R., 150, it was decided by THE COURT that, on the entry in the circuit court of the United States of the copies of the process and papers by which the suit was commenced in the state court, the plaintiff must file a new declaration in the United States court.

In Saydam agt. Ewing, 1 Code, R. N. S., 294, U. S. Circuit Court, January, 1852, BETTS, J., it was decided that the New York Code has no application to causes removed from the New York state courts to the United States courts, after the removal And the proceedings in the United States court, after the transfer of the causes, must be the same as if the suits had been originally commenced in the latter court; and accordingly, the declarations filed in the United States court are to be in the names of the parties recognized by the rules of the latter court. And the plaintiffs are entitled to have orders entered for the continuance of the causes in such names, without prejudice to the attachment levied in the court below in the causes, as there instituted and entitled.

In Kanouse agt. Martin, 6 How., 240, Court of Appeals, December, 1851, Foor, J., and in Illius agt. New IIqven R. R. Co., 3 Kern., 597, COMSTOCK, J., it was decided than an appeal does not lie to the court of appeals from an order of the supreme court removing an action or denying a motion to remove an action commenced therein to the United States court. The order does not determine the action and prevent a judgment therein, nor does it affect a substantial right within the meaning of section 11 of the Code.

41. Q. Has the supreme court the same power as a justice of that court who is designated by a special statute to do certain duties?

4. In Crawford agt. Collins, 30 How., 402, General Term, January, 1866, JAMES, J., said: "For enforcing the lien given by the act (Laws of 1862, ch. 382) to provide for the collection of demands against ships and vessels, it provides that any person having a lien may apply for a warrant to any officer authorized to perform the duties of a justice of the supreme court at chambers. In this case application was made to a justice of the supreme court, and the warrant granted by him. It is insisted that no authority to issue such warrant is vested in a justice of the supreme court by the act, but only in such officers as are authorized by law to do what a justice can do at chambers. In this we differ from the learned counsel of the defendants, and hold that the authority exists with the justices of this court, equally with those authorized by law to perform their duties at

chambers."

What is the result of the decisions under this section?

Salaries.

1. The judges of the court of appeals and the justices of the supreme court each receive a salary of $3,500 per year, fixed by statute (1857), payablǝ quarterly.

2. The salaries of the judges and justices, when fixed by statute, cannot, under the constitution, be increased or diminished during their continuance in office.

Jurisdiction of the late Supreme Court.

3. The late supreme court possessed the powers and jurisdiction which belonged to the supreme court of the colony of New York.

Jurisdiction of the late Court of Chancery.

4. The late court of chancery possessed powers and jurisdiction co-extensive with those of the court of chancery in England.

Jurisdictions Combined.

5. The present supreme court possesses the same powers and jurisdiction as was posessed by the late supreme court and court of chancery.

6. The supreme court is vested with general jurisdiction in law and equity; but the manner of exercising it is for the legislature to prescribe.

7. The legislature must determine what proceedings shall be had at a general term, at a special term, and at a circuit.

8. The legislature may authorize such portion of the jurisdiction vested in the supreme court as it may deem proper, to be exercised by the justices at chambers.

9. The constitution did not intend to curtail the general authority of the legislature in relation to judicial proceedings, or in making such regulations as it had been accustomed to make.

10. Whether the legislature have the power to abolish the distinction between law and equity jurisdiction—quere?

11. The action and administration of the supreme court perfectly distinct in granting legal and equitable remedies, as much so as when they had to be sought in different courts. 11. Proceedings instituted in chancery prior to 1846, for the appointment of a committee of a drunkard, were vested, after the constitution of 1846, in the supreme court. A county court has no jurisdiction in such proceedings. The right of a party who invokes the exercise of the anterior and general jurisdiction of a court of equity depends on his establishing the relation of trustee and cestui que trust. The right of a judgment creditor to the ancillary aid of a court of equity depends on his compliance with the statutory condition, which requires him first to exhaust his legal remedy.

Special Powers and Jurisdiction by Statute.

12. The special powers and jurisdiction heretofore vested in any vice-chancellor, or judge of the supreme court, in any particular district or circuit, were transferred, in July, 1847, to and vested in any justice of the supreme court elected for such district or districts. 13. Although the distinction between actions at law and suits in equity was abolished by the Code, the suit in equity survived in the form of a "civil action."

14. The supreme court at special term, in the confirmation of reports of commissioners of estimate and assessment in street cases, acts as the supreme court under the constitution, having jurisdiction in law and equity.

15. The jurisdiction of the supreme court in respect to proceedings in street cases is wholly derived from the statute, and it can exercise only such power as the statute limits and prescribes.

Lands out of the State.

16. The supreme court has jurisdiction to decree a specific performance of a contract for the purchase of lands out of the state, where the parties are residents of this state.

17. Where the supreme court has jurisdiction of the person, it can compel the party to do justice by the execution of such a conveyance as will affect the title of the property in the jurisdiction in which it is situated.

18. Although the supreme court has no jurisdiction in an action for the recovery of lands in another state, where the proceeding is in rem, yet it may, where it has jurisdiction of the parties, compel them to do equity in relation to such lands. It acts in personam in such case.

19. The supreme court has jurisdiction, under the act of 1855, of an action against a foreign corporation doing business in this state, to obtain a moneyed judgment.

20. The supreme court has no jurisdiction of an action against a foreign corporation, to annul a conveyance made to it by another corporation, also residing out of this state, of lands in the latter state.

Limited Jurisdiction of a Justice.

21. A justice of the supreme court, when acting out of court, is limited in his jurisdiction to just what the legislature has authorized, and no more.

22. A justice of the supreme court, at chambers, cannot review, collaterally, the deci sions of courts of competent jurisdiction.

23. Justices of the supreme court have no power to review, at chambers, each other's parte orders.

24. Justices of the supreme court have no authority to issue commissions to examine witnesses out of the state in supplementary proceedings.

United States Courts.

25. The state courts and the United States courts have concurrent jurisdiction, and the court which first obtains jurisdiction will retain it.

26. The United States courts have exclusive jurisdiction of actions against consuls of foreign governments, residing here, even though impleaded with a citizen of this state. But this jurisdiction does not apply in cases of consuls and ministers appointed by the government of the United States to foreign governments.

27. The United States courts have exclusive jurisdiction of actions of torts committed within their jurisdiction, upon lands ceded by the state to the United States, Brooklyn navy yard.

Jurisdiction less than $100.

28. The supreme court has jurisdiction in equitable actions concerning property, where the matter in dispute is less than $100.

Contempts.

20. Whether for the disobedience of an order of a justice made out of court, the court has jurisdiction to punish as for a contempt, or the justice only has such power, there appears to be conflicting decisions. (We should think such power ought to be possessed by the court, also, for the practical and effectual administration of justice-ED.)

Setting aside judgments.

30. The only limitation to the jurisdiction of the court to set aside a judgment on motion is the statute which forbids it after one year, in cases of irregularity; but not where it is of right or substance.

Time to appeal.

31. The courts have no power to enlarge or extend the time to appeal, beyond that fixed by statute.

Coordinate jurisdiction.

32. One court has no power to enjoin proceedings in another court of coordinate jurisdiction. The supreme court cannot issue a writ of prohibition to deprive an inferior court of a jurisdiction which the law in its wisdom, has thought proper to give it.

Vacancy in office.

33. An election to fill a vacancy, at a general election of judges, is valid, although the vacancy occurs so near the election as to preclude the giving of the general statutory notice.

Chamber orders.

34. Any justice of the supreme court in any part of the state, has jurisdiction to make an order enlarging the time to make a case, in an action triable in any judicial district. 35 Any justice may make an order out of court and without notice, staying proceeding, in an action, to enable a party to apply for some ulterior relief.

36. Any justice at chambers may grant an order on petition praying for the proper custody and disposition of minor children.

37. A justice out of court, has no authority to grant a discharge of a judgment debtor from imprisonment on execution against the person. Such an application is required by statute, to be made to the court.

37. The supreme court has equal power with a justice of that court, who is prescribed by a particular statute, to do certain prescribed duties.

Partition.

38. The supreme court has jurisdiction, in an action in partition to allow an amendment of the proceedings by filing a gverdian's bond, nunc pro tunc, before or after a sale.