CaiiDvell, J.
It is settled that upon filing the required petition and bond in the state court, in a cause removable under the acts of congress, the jurisdiction of the state court ceases, and that of the circuit court of the United States immediately attaches. The entering of a copy of the record in the circuit court is necessary to enable that court to proceed, but its jurisdiction attaches when the requisite petition and bond are filed in the state court. Nat. Steamship Co. v. Tugman, 106 U. S. 118; [S. C. 1 Sup. Ct. Rep. 58;] Railroad Co. v. Koontz, 104 U. S. 5.
The act of congress requires the party removing the cause to file a copy of the record on the first day of the next session of the circuit court occurring after the removal. But it may be filed by either party before that time. And where any order or direction of the court is necessary to preserve the property in litigation, or protect the rights of the parties before the next session, the court will grant leave to either party to file the record, and will make such interlocutory orders as the case seems to require, and as it would have power to make between tlie commencement of an action originally brought in that court and the term at which it could be tried. Section 6 of the act of March 8, 1875, provides that the circuit court shall proceed [280]*280in a removal cause as if had been originally commenced in that court, “and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said state court prior to its removal.”
Undoubtedly, if this cause had been commenced in this court, and an injunction granted and a receiver appointed without notice, the court, upon notice to the plaintiff, would have heard a motion to dissolve the injunction and discharge the receiver before the term at which the case would be triable.
If this cause had remained in the state court, the defendants would have had the right to make this motion and had it determined before the term to which the writ was returnable. Gantt, Dig. §§ 3477-3480.
But the defendants were not bound to make the motion and submit it to the determination of that court. If they had done so, and that court had denied the motion, and they had then removed the cause, this court would not have entertained the motion on the same record until the trial term. Hot Springs Cases, MS. Op.
But the injunction having been granted, and the receiver appointed without notice to the defendants, and no motion to dissolve the injunction and discharge the receiver having been made in the state court, such motion may be made, upon notice to the plaintiff, in this court at any time after the record is filed. Dillon, Bern. § 80, p. 99; Mahoney Mining Co. v. Bennett, 4 Sawy. 289.
In disposing of the motion before the court it is not necessary to determine whether a court of chancery will, in any state of case, undertake to enforce specific performance of a contract to build a railroad bridge. The plaintiff’s bill is not one for specific performance of the contract to build the bridge. The bill is an anomaly in equity pleading. . No precedent for it has been produced, and it is believed none can be found. It is not framed to secure a specific performance of the contract by the defendants, nor to settle the controversy between the parties. Whether the plaintiff waived the right to the $1,000 per week after the first of November; whether the defendants were entitled to be paid the May estimate; and whether they are entitled to receive anything for extra work and materials,—are matters which are material and necessary to be determined before specific performance of the contract could be decreed, if, under any circumstances, a court of equity would undertake to enforce specific performance of sucha contract; and yet all these disputed questions, the determination of which would be absolutely essential before it could be known whether the'plaiutiff was entitled to the aid of a court of equity to enforce specific performance of the contract, are by the bill in terms left to be determined after the court has taken it upon itself to seize the property of the defendants and complete the bridge; and then these questions are not to be determined in this suit, but in the [281]*281suit at law already ponding, and such other suits as may hereafter be brought, or by convention of the parties, or by arbitration. The exact language of the bill on this point is that—
“ The plaintiff is willing to waive for the time being all questions and differences in relation to the construction to be placed upon the said contract between the complainant and the defendants, as well as the amount that may may be due from one to the other, and hereby proffers to advance this court, orto the receiver hereinafter prayed for, such a sum of money as will fully pay for the completing of said bridge, leaving all questions of differences between the complainant and the defendants to he hereafter settled without prejudice to the rights of either of the parties hereto, by compromise, arbitration, or in due course of law, as the said parties may elect.”
It is an elementary principle of equity law, that, before a court can decree a specific performance of a contract, the party seeking such relief must establish his right thereto by satisfactory evidence, and this can only be done upon final hearing of the cause. It cannot be done upon an ex parte statement, and without notice to the party against whom the relief is sought. In this case, as it stands, there is nothing from which the court can form any opinion to the merits of the case. There is no evidence on the essential points of differance—nothing but the opposing statements of the parties. If, as claimed by defendants, the plaintiff waived the weekly forfeiture, and they are entitled to compensation for extra wotk and labor, then they were entitled to have the May estimate honored, and the party in default is the plaintiff. So far from asking that the defendants be required to specifically perform the contract on their part, the court is asked to take from them their tools, machinery, camp, and camp equipage, and enjoin them from doing anything in the premises.
Stripped of its irrelevant and declamatory statements, the case made by the bill is this: That the plaintiff and defendants have a misunderstanding as to their respective rights under the contract for building the bridge; that the materials are on the ground to complete the bridge, and that with the use of the defendants’ plant—consisting of machinery, tools, and camp equipage—it can be completed in a short time; but that without the use of this plant the completion of the bridge will be much delayed and its cost enhanced, to the groat damage of the plaintiff and the inconvenience of the public; and that the use of the defendants’ machinery and tools is absolutely necessary to avoid the delay and damage to the railroad company and disappointment to the public. Upon this showing, an injunction is prayed against the defendants, enjoining them from using or taking possession of their machinery, tools, and entire plant used in carrying on the work on the bridge; and the court
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CaiiDvell, J.
It is settled that upon filing the required petition and bond in the state court, in a cause removable under the acts of congress, the jurisdiction of the state court ceases, and that of the circuit court of the United States immediately attaches. The entering of a copy of the record in the circuit court is necessary to enable that court to proceed, but its jurisdiction attaches when the requisite petition and bond are filed in the state court. Nat. Steamship Co. v. Tugman, 106 U. S. 118; [S. C. 1 Sup. Ct. Rep. 58;] Railroad Co. v. Koontz, 104 U. S. 5.
The act of congress requires the party removing the cause to file a copy of the record on the first day of the next session of the circuit court occurring after the removal. But it may be filed by either party before that time. And where any order or direction of the court is necessary to preserve the property in litigation, or protect the rights of the parties before the next session, the court will grant leave to either party to file the record, and will make such interlocutory orders as the case seems to require, and as it would have power to make between tlie commencement of an action originally brought in that court and the term at which it could be tried. Section 6 of the act of March 8, 1875, provides that the circuit court shall proceed [280]*280in a removal cause as if had been originally commenced in that court, “and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said state court prior to its removal.”
Undoubtedly, if this cause had been commenced in this court, and an injunction granted and a receiver appointed without notice, the court, upon notice to the plaintiff, would have heard a motion to dissolve the injunction and discharge the receiver before the term at which the case would be triable.
If this cause had remained in the state court, the defendants would have had the right to make this motion and had it determined before the term to which the writ was returnable. Gantt, Dig. §§ 3477-3480.
But the defendants were not bound to make the motion and submit it to the determination of that court. If they had done so, and that court had denied the motion, and they had then removed the cause, this court would not have entertained the motion on the same record until the trial term. Hot Springs Cases, MS. Op.
But the injunction having been granted, and the receiver appointed without notice to the defendants, and no motion to dissolve the injunction and discharge the receiver having been made in the state court, such motion may be made, upon notice to the plaintiff, in this court at any time after the record is filed. Dillon, Bern. § 80, p. 99; Mahoney Mining Co. v. Bennett, 4 Sawy. 289.
In disposing of the motion before the court it is not necessary to determine whether a court of chancery will, in any state of case, undertake to enforce specific performance of a contract to build a railroad bridge. The plaintiff’s bill is not one for specific performance of the contract to build the bridge. The bill is an anomaly in equity pleading. . No precedent for it has been produced, and it is believed none can be found. It is not framed to secure a specific performance of the contract by the defendants, nor to settle the controversy between the parties. Whether the plaintiff waived the right to the $1,000 per week after the first of November; whether the defendants were entitled to be paid the May estimate; and whether they are entitled to receive anything for extra work and materials,—are matters which are material and necessary to be determined before specific performance of the contract could be decreed, if, under any circumstances, a court of equity would undertake to enforce specific performance of sucha contract; and yet all these disputed questions, the determination of which would be absolutely essential before it could be known whether the'plaiutiff was entitled to the aid of a court of equity to enforce specific performance of the contract, are by the bill in terms left to be determined after the court has taken it upon itself to seize the property of the defendants and complete the bridge; and then these questions are not to be determined in this suit, but in the [281]*281suit at law already ponding, and such other suits as may hereafter be brought, or by convention of the parties, or by arbitration. The exact language of the bill on this point is that—
“ The plaintiff is willing to waive for the time being all questions and differences in relation to the construction to be placed upon the said contract between the complainant and the defendants, as well as the amount that may may be due from one to the other, and hereby proffers to advance this court, orto the receiver hereinafter prayed for, such a sum of money as will fully pay for the completing of said bridge, leaving all questions of differences between the complainant and the defendants to he hereafter settled without prejudice to the rights of either of the parties hereto, by compromise, arbitration, or in due course of law, as the said parties may elect.”
It is an elementary principle of equity law, that, before a court can decree a specific performance of a contract, the party seeking such relief must establish his right thereto by satisfactory evidence, and this can only be done upon final hearing of the cause. It cannot be done upon an ex parte statement, and without notice to the party against whom the relief is sought. In this case, as it stands, there is nothing from which the court can form any opinion to the merits of the case. There is no evidence on the essential points of differance—nothing but the opposing statements of the parties. If, as claimed by defendants, the plaintiff waived the weekly forfeiture, and they are entitled to compensation for extra wotk and labor, then they were entitled to have the May estimate honored, and the party in default is the plaintiff. So far from asking that the defendants be required to specifically perform the contract on their part, the court is asked to take from them their tools, machinery, camp, and camp equipage, and enjoin them from doing anything in the premises.
Stripped of its irrelevant and declamatory statements, the case made by the bill is this: That the plaintiff and defendants have a misunderstanding as to their respective rights under the contract for building the bridge; that the materials are on the ground to complete the bridge, and that with the use of the defendants’ plant—consisting of machinery, tools, and camp equipage—it can be completed in a short time; but that without the use of this plant the completion of the bridge will be much delayed and its cost enhanced, to the groat damage of the plaintiff and the inconvenience of the public; and that the use of the defendants’ machinery and tools is absolutely necessary to avoid the delay and damage to the railroad company and disappointment to the public. Upon this showing, an injunction is prayed against the defendants, enjoining them from using or taking possession of their machinery, tools, and entire plant used in carrying on the work on the bridge; and the court is asked to take possession of this plant, and go forward with the work and complete the bridge “in accordance with the specifications;” the plaintiff generously promising to furnish the means to discharge the pecuniary obligations incurred by the court in carrying out the enterprise,1 and also offering to give a bond [282]*282to pay the defendants the value of the rent of the tools during the time they are used by the court. It is the defendants’ plant for building the bridge, and not the materials which enter into the construction of the bridge, which the court is asked to seize and use. The materials for the bridge belong to the plaintiff; the plant to the defendants. What authority has a court of chancery to seize and use the property of one citizen for the benefit of another, without a trial or a hearing? No exigency of a railroad company, and no considerations of public convenience, however great, will .justify the act to the law.
If the necessities of the plaintiff, and the public necessity, will warrant the seizure and use-of the defendants’ tools and machinery, it is not perceived why the same consideration^ would not make it the duty of the court to seize and use the tools of other citizens, or the mules of the neighboring planters. Courts possess no' such absolute and despotic power over the property of the citizen. The citizen cannot be deprived of his property or its possession “without due process of law,” and a simple bond to pay the owner the value of a- forced loan of his property is not the equivalent of the due process of the law contemplated by the constitution. In effect, the court is asked to compel a forced loan of the defendants’ tools, machinery, and camp equipage, and when it secures possession of them it is asked to use them in completing the bridge, and to appoint an agent for that purpose. A receiver is the agent of the court; he is an officer of the court, and his possession is that of the court. He is not the agent of either party, and neither party is responsible for his misfeasance or malfeasance. And for this reason courts should not assume to place the private property of the citizen, or the conduct of his business, in the hands of a receiver, except where both the right and the necessity to do so are clear.
Courts are poorly adapted to the business of building railroad bridges. If not properly constructed, the most serious consequences to life and property are likely to result. Their proper construction requires a high degree of engineering skill, which this court does not possess. Any court which engages in the business is liable to commit grave mistakes, and inflict great wrong and hardship, for which the injured parties will have no redress; for the errors and mistakes of the court, though they may ruin a .citizen, are placed in the category of injuries produced by the law, and for which the law furnishes no redress. Certainly no court ought to engage in the business, when it would have to resort, in the beginning, to the exercise of such questionable powers to get the tools to carry on the work. It is obvious that the sole object of the bill in this case is to obtain, through the agency of the court, the use of the defendants’ plant until the bridge can be finished. If the court should continue the forced loan of the defendants’ tools and complete the bridge, it would have to settle with the plaintiff for the money received, and there [283]*283this case would end, leaving every question is dispute between the parties where it stood when this case was begun. This would be proceeding by inversion. The method lias too much the air of that proceeding by which a man is first hung and tried afterwards to find favor in a court of equity.
Let an order be entered dissolving the injunction and discharging the property from the custody of the receiver, and requiring him to return the same to the officer or person from whom he received it, and to pass his accounts in the master’s office without delay.
See City of Chicago v. Hutchinson, 15 Fed. Rep. 129; Glover v. Shepperd, Id. 833: Phœnix Mut. Life Ins. Co. v. Walrath, 16 Fed. Rep. 161; Public Grain & Stock Exchange v. Western Union Tel. Co. Id. 289.—[Ed.