
    KIRKPATRICK v. HOPKINS.
    December 22, 1838.
    
      Rule to show muse ivhy the cause should not be removed to Circuit Court, Sfc.
    
    To enable a defendant to remove the cause from a State court to a Circuit Court of the United States, under the act of Congress of 1789, it is not sufficient that his petition is signed by his attorney at law; and at the time of entering an appearance, he must offer the surety specified in the act.
    IN this case (S. ’38, 696,) the plaintiff had filed a copy of his book entries, and on the third Saturday after the return day, took judgment for want of an affidavit of defence. On the same day, but before the rendition of the judgment, the defendant’s attorney entered an appearance, and filed a petition purporting to be of the defendant, signed however by his attorney, praying for a removal of the cause to the Circuit Court of the United States for this district, under the 12th section of the act of Congress of Sept. 24, 1789, establishing the judiciary, (1 Story’s Laws U. S. 57, 58.) The defendant was a citizen of New York, and the sum demanded in the suit was upwards of 500 dollars.
    The defendant then obtained a rule to show cause why the judgment should not be set aside, and why the cause should not be removed according to the prayer of the petition.
    
      J. M. Scott, for the rule.
    
      J. M. Read, contra.
   Pbr Curiam.—

the defendant had complied with the requisitions of the act of Congress, we should entertain this application favourably. But he has not complied in two particulars. The petition is not signed by him, nor “ at the time of entering his appearance,” did he offer the surety required by the act. See 2 Troubat and Haly 533.

Rule discharged.  