— The respective claims of the parties to this important controversy, may be stated thus: Appellant insists that the action of the State Court in reference to the new bond, and its effect upon the first sureties, was coram nonjudice and void, that the Federal Court did not discharge the defendants from their obligation, nor intend to do so, and that all proceedings by parties, clerk or court, based upon the void order aforesaid, could not discharge these sureties from their liability. Appellees insist, on the other hand, that this order was not void, that they are sureties, that they were only bound by the recitals in the bond to have the property forthcoming to the sheriff, and to answer the judgment of the State Court, and that the subsequent removal of the cause to the Federal Court released them, because it enlarged or changed their liability, or the status of the case, as it stood at the time they signed the bond. It is also insisted that by the said removal this bond became inoperative, that thereby the attachment was dissolved, that "the bond was in the nature of “ bail,” and that the law of Congress required a new undertaking, in lieu of that given to the sheriff. And finally, that defendants, having acted in good faith, upon the action of the court, in delivering up their indemnity, plaintiff is estopped from denying the validity of the new bond — that to permit it would be a fraud upon their rights.
The Judiciary Act of 1789, under which the cause was *170removed to the Federal Court, provides, that. in an action by a citizen of the state in which the suit is brought,' against a citizen of another state, for a sum of five hundred dollars, or over: “ If the defendant shall, at the time of entering his appearance in such State Court, file a petition for the removal of the cause for trial into the next circuit court to be held in the district where the suit is pending,” •****•*« an(j 0ffer g00(j an¿ sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, and also for his there appearing and entering special bail, if special bail was originally requisite therein, it shall then be the duty of the State Court to accept the surety, and proceed no further in the cause, ■ and any bail that may have been originally taken shall be discharged, and said copies being entered as aforesaid in said court of the United States, the cause shall proceed in the same manner as if it had been brought there by original process. And any attachment of the goods or estate of the defendant by the original process, shall hold the goods or estate so attached, to answer the final judgment,' in the same manner as by the laws of the state they would have been holden to answer final judgment, had it been rendered by the court in which the suit commenced.” (1 Stat. at Large, 79.)
In giving a construction to this statute, so far as necessary to the disposition of this cause, we remark:
First The special bail therein mentioned does not refer to a delivery bond, or bond executed for the forthcoming of property attached *by the sheriff in the State Court. It is correctly claimed by appellant that “ bail” as here used means an undertaking for the personal appearance of a party, or refers to one who may undertake for another. A delivery bond is not special bail. There is a wide distinction between the two obligations upon general principles, and this distinction is clearly recognized by the act *171under consideration, for that expressly provides for the entering of “ special bail,” and for the effect of the removal upon the property attached. The property is to be held, but upon the entering of special bail that originally taken is discharged. Bail saves a man from imprisonment, his friends undertaking for him that he shall appear at a day certain, “ and answer whatever shall be objected to him in a legal way.” (1 Bac. Abr., 321.) And this is the kind of bail meant by this statute, and not bonds fox the delivery of attached property.
Second. Nor are we of the opinion that the removal of the cause into the Federal Court, under this statute, would, ipso facto, in the language of defendants’ counsel, render the bond inoperative — nor did it so enlarge or change their liability as to discharge them. Taking it for granted, as they claim, that as the cause stood at the time this bond was given, it could not be removed, because being a suit by foreign attachment, the Federal Court could not take jurisdiction of it, the fact would still remain that the subsequent appearance of the defendant to the action would remove all difficulty, and give the jurisdiction, if he applied for and obtained a change of tribunals in the manner pointed out by law. His right to do this was as much a part of the law of the contract entered into by these defendants, as his right to a change of venue to another county or judicial district in this state. Their undertaking was that the property should be forthcoming to answer “ the judgment of the court in said suit.” Not, as claimed by appellees, the court in which the action was then pending, alone, but the court having jurisdiction, which finally rendered the judgment. Neither was their undertaking limited to the sheriff serving the process, as obligee, but it was for the benefit of the plaintiff, the real party in- interest, and required them to deliver it to the officer (sheriff or marshal) who had the final process.
*172Third. But the cardinal point in the case remains to be considered, and that is, the effect to be given to the order for the substituted security. As we have seen, the language of the law is that “it shall then be the duty of the State Court to accept the security and proceed no further in the cause." The argument of appellant is that this order is utterly void, because made after the court had ceased to have jurisdiction of the cause, — that when the security was accepted that court had no power to proceed further in the suit. As applied to the facts and actual circumstances of this case, we do not think this position tenable.
The argument drawn from the object and purpose of the law of Congress does not strike us as having much weight. This policy is very clearly stated by Justice McLean, in Gordon v. Longest, 16 Pet., 105, and is said to be to create a court in which a party litigating with a man in his own home and neighborhood may have a tribunal free from local influences.' Manifestly, therefore, when the citizenship in another state, and the amount in controversy, are made to appear, and the offer made of sufficient surety for appearance in the Federal Court, the power of the State Court to -take cognizance of the action so as to try it, or to adjudicate any question touching the merits of the controversy, is at an end. And if the State Court should disregard such application, and proceed to hear the case, this would be an unwarranted exercise of jurisdiction, and the whole proceeding would be void. The case above cited, and that of Kanouse v. Martin, 15 How., 198, referred to by counsel, substantially recognize this rule, and do no't go beyond it. Here is a case, however, where a bond, statutory in its character, was given on mesne process. Plaintiff had no special vested right to these particular sureties. Before the property could be released from the process, the law required a bond. This was for the plaintiff’s benefit; this was his right. The sureties may be changed, and others, subject to *173the approval of the court, substituted. Over these bonds, for purposes of substitution, courts of general jurisdiction have complete power. An order for such substitution, or, ás in this case, that upon the performance of .a certain act, (which was to keep intact plaintiff’s security,) this bond might be withdrawn from the files, is not a further proceeding in a cause, within the meaning of the act in question.
Again, we are not to lose sight of the fact that the contemplated bond was given. This was filed in the Federal Court, and approved by the judge thereof. A recitation in the new bond is, that.it “ is intended to be and is substituted in lieu ” of the one now in suit. The records in this court show that the defendant produced a transcript of the papers, “and filed his bond to^ comply with the conditions of his undertaking in the court below,” (the securities therein having justified,) that the bond was approved, and thereupon the papers were filed, and “ cause docketed, according to law.” These proceedings, in our opinion, are fairly susceptible of but one construction, and that is, that the second bond was accepted and approved by the Federal Court as a substitute for and in the place of that previously given. They mean more than that the judge approved the form of the bond, and the sufficiency of the security. The order of the court below was a part of the record produced; the purpose of the new bond was shown by that, as well as by its terms. This bond is accepted, the papers filed, and the cause docketed. Such a bond, according to the order, was required, as a condition precedent to entering the record in the Federal Court. All these matters the judicial mind must reasonably have passed upon, and the acceptance of the new bond, and ordering the papers filed and cause docketed, in.legal effect as fully released the first bond, as if an order to that effect had been made by the court. And when it is borne in mind that plaintiff was present by his counsel when this bond was received, as well as when the *174order was made in the State Court, — that this bond was withdrawn and produced to defendants, who in good faith erased their names, and surrendered the ample indemnity in their hands, and that no claim was made upon them until two years and six months after the making of the new bond, — we say, when all these facts are taken into the account, it seems to us that it would be a fraud upon them to say that they ¿re still bound to produce the property attached, or its appraised value. There is nothing tending to show that they have acted otherwise than in the utmost good faith. They had a right to rely upon the action of the two courts, as giving to them an acquittance from their obligation. It is fairly apparent that plaintiff knew that ' defendants had reasonable grounds to believe that these proceedings released them, and he should not now be allowed ' to complain of that which he permitted, if he did not produce.
Affirmed.