Chapter LXXX. to amend an Act entitled “An Act relating to Habeas Corpus, and regulating Judicial Proceedings in certain Cases,” approved March third, eighteen hundred and sixty-three
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CHAP. LXXX.— An Act to amend an Act entitled “An Act relating to Habeas Corpus, and regulating Judicial Proceedings in certain Cases,” approved March third, eighteen hundred and sixty-three.May 11, 1866.1863, ch. 81.Vol. xii. p. 755.See 1887, ch. 27.*Post*, p. 385. *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,* That any search, seizure, arrest, or imprisonment made, or any acts done or omitted to be done during theOrders from proper officer to perform certain acts to be a defence to suits on account of such acts; said rebellion, by any officer or person, under and by virtue of any order, written or verbal, general or special, issued by the President or Secretary of War, or by any military officer of the United States holding the command of the department, district, or place within which such seizure, search, arrest, or imprisonment was made, done, or committed, or any acts were so done, or omitted to be done, either by the person or officer to whom the order was addressed, or for whom it was intended, or by any other person aiding or assisting him therein, shall be held, and are hereby declared, to come within the purview of the act to which this is amendatory,1863, ch. 81, §§4–6.Vol. xii. pp. 756, 757. and within the purview of the fourth, fifth, and sixth sections of the said act of March third, eighteen hundred and sixty-three, for all the purposes of defence, transfer, appeal, error, or limitation provided therein.
But no such order shall, by force of this act, or the act to which this is an amendment,but not for acts done after the passage of this act. be a defence to any suit or action for any act done or omitted to be done after the passage of this act. Sec. 2. *And be it further enacted,* That when the said order is in writing,Order, how proved. it shall be sufficient to produce in evidence the original, with proof of its authenticity, or a certified copy of the same; or if sent by telegraph, the production of the telegram purporting to emanate from such military officer shall be prima facie evidence of its authenticity; or if the original of such order or telegram is lost or cannot be produced, secondary evidence thereof shall be admissible, as in other cases.
Sec. 3. *And be it further enacted,* That the right of removal from theRight of removal from State to United States Court when it may be exercised. State court into the circuit court of the United States, provided in the fifth section of the act to which this is amendatory, may be exercised after the appearance of the defendant and the filing of his plea or other defence in said court, or at any term of said court subsequent to the term when the appearance is entered, and before a jury is empanelled to try the same; but nothing herein contained shall be held to abridge the right of such removal after final judgment, in the State court, nor shall it be necessary in the State court to offer or give surety for the filing of copies in the circuit court of the United States; but, on the filing of the petition, verified as provided in said fifth section, the further proceedings in theProceedings in State court to cease on filing petition, &c.
State court shall cease, and not be resumed until a certificate under the seal of the circuit court of the United States, stating that the petitioner has failed to file copies in the said circuit court, at the next term, is produced. Sec. 4. *And be it further enacted,* That if the State court shall, notwithstandingSubsequent acts in State court, void. the performance of all things required for the removal of the case to the circuit court aforesaid, proceed further in said cause or prosecution before said certificate is produced, then, in that case, all such further proceedings shall be void and of none effect; and all parties, judges, officers, and other persons, thenceforth proceeding thereunder, or by color thereof, shall be liable in damages therefor to the party aggrieved, to be recoveredDamages. by action in a court of the State having proper jurisdiction, or in a circuit court of the United States for the district in which such further proceedings may have been had, or where the party, officer, or other person, so offending, shall be found; and upon a recovery of damages in either court, the party plaintiff shall be entitled to double costs.Double costs.
Sec. 5. *And be it further enacted,* That it shall be the duty of the clerk of the State court to furnish copies of the papers and files in theClerk of State court to furnish copies of papers &c. case to the party so petitioning for the removal; and upon the refusal or neglect of the clerk to furnish such copies, the said party may docket the47THIRTY-NINTH CONGRESS. Sess. I. Ch. 80, 81. 1866. case in the circuit court of the United States; and thereupon said circuitIf clerk does not furnish copies, case may be docketed in U.S.
Court, and plaintiff ordered to file declaration, &c. therein.Nonsuit, &c. court shall have jurisdiction therein, and may, upon proof of such refusal or neglect of the clerk of the State court, and upon reasonable notice being given to the plaintiff, require him to file a declaration or petition therein; and upon his default may order a nonsuit, and dismiss the case at the costs of the plaintiff, which dismissal shall be a bar to any further suit touching the matter in controversy.
Approved, May 11, 1866.