
    Elizabeth Clippinger, Administratrix of John J. Custard, deceased, v. The Missouri Valley Life Insurance Company.
    1. Whether the District Court erred in reversing a judgment, must ho determined upon the case as it stood at the time of the reversal, and not upon what subsequently occurred.
    2. Under section 12 of the judiciary act of 1789, as well as under the act of March 2, 1867, to remove a cause from a state court to the Circuit Court of the United States, security is required to be offered that the petitioning party will take the necessary steps to perfect the removal; and a bond conditioned that a person, not a party to the suit, or his legal representatives, will perform the required acts, is not in conformity to the statute, and is, therefore, not such security as it is the duty of the state court to accept.
    8. A bond conditioned for such removal of a cause within a specified period, although it may have been unobjectionable in its terms when filed with the clerk, becomes unavailable, if at the time it is offered to the court for acceptance, the time designated for the performance of its conditions has elapsed.
    Motion for leave to file a petition in error to reverse the-judgment of the District Court of Allen county.
    On the 28th of December, 1872, the plaintiff in error, Elizabeth Olippinger, administratrix, etc., brought suit in the Court of Common Pleas of Allen county against the defendant in error, the Missouri Yalley Life Insurance Company, to recover upon a policy of life insurance. The amount claimed was. $2,000.
    On the 18th day of January, 1873, the defendant filed in the clerk’s office a petition for the removal of the cause to the Circuit Court of the United States, under section 12 of the judiciary act of 1789, on the ground that the plaintiff was a citizen of the State of Ohio, and the defendant a corporation created by and existing under the laws of the State of Kansas, and a citizen of that state. Accompanying the petition was a bond executed by Andrew J. Marvin to the plaintiff in the sum of $1,000, which was offered as good and sufficient security under the section of the act of -Congress above referred to.
    The condition of this bond was that Andrew J. Marvin, or Ms legal representatives, should enter, or cause to be entered, in tbe Circuit Court, all process, etc., in said suit.
    At the February term, 1873, the cause upon the petition for removal was submitted to the court. The application was refused, and the petition dismissed.
    At the October term following, the cause was tried upon its merits, and a verdict and judgment rendered for the plaintiff. After such trial and judgment, the defendant, under the statute of this state, was allowed a second trial, the right to which he duly perfected.
    On the 23d of February, 1874, the defendant filed with the clerk a'petition for the removal of the cause, under the .act of March 2, 1867, amending the act of July 27, 1866, entitled “ an act for the removal of causes in certain cases from the state courts.” 14 IT. S. Statutes at Large, 558.
    This petition was accompanied by the affidavit of the president of the company, stating that he believed that from prejudice, or local influence, the defendant would not be able to obtain justice in the state court.
    The prayer of the petition was for the removal of the ■■cause into the next Circuit Court for the Northern District -of Ohio, sitting on the first Monday of April, 1874.
    The bond filed with this petition was executed by the defendant with surety to the plaintiff. The condition of the bond was, that the defendant should, on or before the first Monday of April, 1874, file in the said Circuit Court copies of all- process, pleadings, depositions, testimony, and other proceedings in said suit, etc.
    On May 12,1874, a second petition for removal under the act of March 2,1867, was filed. This petition asked for the removal of the cause into the next Circuit Court to be held in the Northern District of Ohio, pursuant to the statute in such case made and provided. This petition was also accompanied by the requisite affidavit; but the bond filed with the petition was executed by Samuel Collins to the plaintiff in the sum of $1,000. The terms and condition of this bond were similar to those in the bond of Marvin accompanying the petition filed on the 18th of January, 1873.
    Neither of the last two petitions appears to have been-presented to the court until the 8th day of June, 1874, being the May term.
    The transcript shows that on that day the defendant’s-second petition, for removal of the cause to the Circuit Court, was submitted to the court and overruled.
    At the October term, 1874, a second trial of the cause-was had, which resulted in a verdict and judgment in favor of the plaintiff.
    On the 13th of March, 1875, the defendant filed a petition in error in the District Court for the reversal of this judgment, alleging, among other errors, the following :
    1. That the Court of Common Pleas erred in its refusal to order the cause to be removed as prayed for in the first petition filed for the purpose.
    2. That it erred in refusing the removal of the cause as prayed for in the second petition.
    At the April term, 1875, of the District Court, the judgment of the Court of Common Pleas was reversed, on the ground that the court last named erred in not granting the-application for the removal of the cause.
    The object, of the present proceeding is to obtain the reversal of the judgment of the District Court.
    
      Isaiah Pilliars, for the motion :
    The insurance company was not entitled then (May,. 1874) to a removal of the cause to the Circuit Court:
    1. Because there had been a trial of the cause in the Common Pleas. U. S. Rev. Stat. 113, sec. 639, which repeals the act of 1867; 14 Stat. at Large, 558; Ins. Co. v. Dunn, 19 Wall. 226 ; 20 Ohio St. 182; 112 Mass. 339.
    2. Because the company, if it then had the right of removal, it did not perfect that right by filing copies of papers, etc., in the said Circuit Court on the first day of its next session. IT. S. Rev. Laws, 113, see. 639; lb. 121.
    If the company obtained or acquired the right to remove by filing its petition Eebruary 23, 1874, and lost the right by not filing certified copies' of the papers in time, I submit it could not regain the right of removal by filing another petition May 12, 1874.
    Marvin, Mart $ Squire, contra:
    The court did not err. Gordon v. Longet, 16 Pet. 97; Ins. Go. v. Morse, 20 Wall. 445 ; 6 Blatch. 362.
    It is suggested that this petition for removal was filed under the law of 1789, which had been repealed by the act of 1866.
    The several acts in regard to this matter are found in the codification of 1873. Act of September 24, 1789,1 Stat. at L. 79; March 2, 1833, 4 Stat. at L. 632; March 3, 1863, 12 lb. 755 ; April 9,1866,14 lb. 27 ; July 27, 1866, 14 lb. 306; March 2, 1867, 14 lb. 558; January 22, 1869, 15 lb. 267.
    The act of July 22, 1866, does not conflict with that of 1789, and is entirely independent, and both stand. 2 Abbott IT. S. Pr. 44.
   White, J.

It is suggested in the argument of the counsel for the plaintiff in error that after the reversal of the judgment by the District Court, and the remanding of the cause, the Court of Common Pleas ordered its removal to the Circuit Court; and that subsequently the Circuit Court dismissed the cause from that court, remanding it to the Court of Common Pleas, for the reason that the defendant had failed to comply with the act of Congress in filing the papers in the cause in that court. In connection with this suggestion a certified transcript from the journal of the Circuit Court is filed, showing such dismissal.

In regard to the matter thus submitted, it is only necessary to say that it has no bearing upon the question now before us. That question is whether the District Court was •warranted in reversing the judgment of the Common Pleas for its refusal to allow the removal of the cause to the Circuit Court. This question must be determined upon the case as it stood at the time of the reversal, and not upon what subsequently occurred.

The first petition for removal was filed under section 12 of the judiciary act of 1789 (1 Stat. at Large, 79).

That section, so far as applicable to the present case, provides,41 that if a suit be commenced in any state court . . . by a citizen of .the state in which the suit is brought against a citizen of another state, . . . and the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause into the next Circuit Court to be held in the district where the ■suit is pending, . . and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, ... it shall then be the duty of the state court to accept the surety, and proceed no further in the cause, ...”

Under this section, security is required that the party petitioning for the removal will enter in the Circuit Court, on the first day of its session, popies of the process against him, etc.

The bond presented with the first petition did not conform to this provision of the statute. The condition of the bond was that Andrew J. Marvin or his legal representatives should enter or cause to be entered in the Circuit Court the process, etc. This bond, in our opinion, it was not the duty of the court to accept.

The second and third petitions were filed under the act of March 2, 1867. Neither of these petitions were presented to the court until the 8th of June, 1874; but treating them both, with the accompanying bonds, as presented to the court on the second application for removal, neither of them made a case for removal.

The time prescribed in the condition of the bond accompanying the second petition, within which the process, pleadings, etc., were to' be entered in the Circuit Court, 'had already elapsed. This bond, therefore, could afford no .security for the future conduct of the petitioner in effecting a removal of the cause.

The bond presented with the third petition was like the one submitted with the first petition, and was, for the same reason, insufficient. The provision in the act of March 2, 1867, as regards the nature of the security to be offered, is, in respect to the matter now in question, the same as section 12 of the act of 1789.

"We find no error, therefore, in the action of the Court ■of Common Pleas in refusing to grant the removal of the •cause.

In regard to what is claimed by counsel in argument as to the effect upon former acts of the act to revise the statutes of the United States in force December 1,1873, and the act of March 3, 1875, it may be remarked that the present case is not affected by these statutes. By section 5597 of the act first named, pending suits are saved from, its operation, and before the passage of the other act the rights of the parties were fixed

Judgment of the District Court reversed, and that of the ■Court of Common Pleas affirmed.

Welch, C.J., Rex, Gilmore, and McIlvaine, J.J., concurred.  