The fact that neither the plaintiff or defendant was an inhabitant of the Northern District of Ohio, did not preclude the Circuit Court of the United States from acquiring jurisdiction upon the filing of the petition and bond for removal in the common pleas court of Lucas county, Ohio. · McCormick Machine Co. v. Walthers, 134 U. S. 41; St. L. & S. F. Ry. Co. v. McBride, 141 U. S. 127; Ex parte Wisner, 203 U. S. 449; In re Moore, 209 U. S. 490.

Upon the filing of the petition and bond for removal, the state court was divested of jurisdiction of the suit, and its subsequent orders were coram non judice and void. Railroad Co. v. Koontz, 104 U. S. 5; Steamship Company v. Tugman, 106 U. S. 108; Traction Co. v. Mining Co., 196 U. S. 239.

Mr. Harry E. King, Mr. Clayton W. Everett and Mr. Oliver B. Snider, with whom Mr. Edward H. Rhoades, Mr. Edward H. Rhoades, Jr., Mr. Elmer E. Davis, Mr. George A. Bassett and Mr. Rathbun Fuller were on the brief, for defendants in error.

Memorandum opinion by direction of the court. By MR. JUSTICE LURTON.

The single question for our consideration upon this writ of error concerns the jurisdiction of the state court to proceed with the action after one of the original defendants had filed its petition and bond for removal to the Circuit Court of the United States.

If, as we shall assume, there was a separable controversy and the requisite diversity of citizenship, it was the duty of the state court to accept the petition and bond and proceed no further in the case. A trial and judgment thereafter would be coram non judice, unless its jurisdiction over the cause and the parties was in some way restored. National Steamship Co. v. Tugman, 106 U. S. 118; Trac

tion Company v. Mining Company, 196 U. S. 239, 253. But we are of opinion that the plaintiff in error is not in a position to now assert that the state court's subsequent exercise of jurisdiction was without authority. When the removal petition and bond were filed, the plaintiff, before any order was made in the state court or the record filed in the United States court, had an order entered in the state court dismissing his action against the removing defendant and certain others having like ground of removal, the order reciting that in consideration of such dismissal the petition for removal was withdrawn. Thereafter the cause was proceeded with against the remaining defendants without the hint of any objection by either the plaintiff or the remaining defendants. Upon the contrary, many steps were taken and a long jury trial had, resulting in a verdict and judgment for the defendants. Not until the cause was carried to the Ohio Circuit Court by appeal of the plaintiff was there any objection made to the jurisdiction of the trial court.

The state court had jurisdiction over the subject-matter. It recovered jurisdiction over the remaining parties by action and conduct equivalent to a formal waiver of new process and new pleadings or any formal remander by the United States court.

The Tugman Case, cited above, does not help the plaintiff in error. The defendant whose right to remove had been erroneously denied was held not to have waived his right to remove by subsequently consenting to a reference of the case to a referee, or by defending the suit both before the referee and the court without protesting. This court said (p. 123):

"When the State court adjudged that it had authority to proceed, the company was entitled to regard the decision as final, so far as that tribunal was concerned, and was not bound, in order to maintain the right of removal, to protest at subsequent stages of the trial against its ex

ercise of jurisdiction. Indeed, such a course would scarcely have been respectful to the State court, after its ruling upon the point of jurisdiction had been made."

If, on the other hand, he had thereafter invoked the court's jurisdiction in his own behalf, he would not have been permitted later to deny it. Texas & Pac. Ry. v. Eastin, 214 U. S. 153; Garrozi v. Dastas, 204 U. S. 64, 73; C. & O. Ry. v. McDonald, 214 U. S. 191.

Judgment affirmed.

UNITED STATES v. STEVER.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF KENTUCKY.

No. 448. Argued October 20, 1911.-Decided December 4, 1911.

Congress will not be supposed to make the same offense indictable and punishable under either of two distinct provisions under which the procedure and the penalties are different.

Where general words follow words descriptive of particular actions

they should, unless clearly manifested to the contrary, be construed as applicable to cases or matters of like kind with those described by the particular words.

Sections 3894 and 5480, Rev. Stat., each apply to different offenses and are to be construed as legislation in pari materia.

Section 3894, Rev. Stat., relates particularly to lottery schemes, and the general words "concerning schemes devised for the purpose of obtaining money or property by false pretenses" are limited to schemes having a similitude to lotteries and other like schemes particularly described and do not extend to the general schemes to defraud covered by § 5480, Rev. Stat.

THE facts, which involve the construction of §§ 3894 and 5480, Rev. Stat., and what constitute offenses thereunder, are stated in the opinion.

Argument for Defendants in Error.

222 U.S.

Mr. Assistant Attorney General Harr for the United States:

Upon this writ of error the Government seeks only to have reviewed the correctness of the court's ruling as to the scope of § 3894, and the validity of the first count. Section 3894 is not limited either in its terms or by necessary implication to lottery schemes.

The clause "or concerning schemes devised for the purpose of obtaining money or property under false pretenses" is grammatically completely separated from, and has no necessary relation to, the preceding clause, "concerning any lottery, so-called gift concert, or other similar enterprise," etc. The statute on its face indicates that Congress was prohibiting the carriage in the mail and the delivery through the post office of two distinct classes of

matter.

The prohibition in § 3894 is of the carriage in the mails and the delivery through the post office of matter concerning a peculiar class of frauds, to wit, "schemes devised for the purpose of obtaining money or property under false pretenses.' Section 5480 is intended primarily to reach any person who "having devised or intending to devise any scheme of artifice to defraud," etc., uses the mails in furtherance of such scheme. The prohibition in § 3894 extends to anyone, whether he had devised the scheme to defraud or not, or whether he was connected with the postal service or not. Section 5480 is confined to the punishment of devisers of a scheme or artifice to defraud.

Mr. W. M. Smith and Mr. J. S. McKenney for defendants in error:

Section 3894, Rev. Stat., only includes, by proper construction, lottery schemes. United States v. Sauer, 88 Fed. Rep. 249; Horner v. United States, 143 U. S. 570; Nichols v. State, 26 N. E. Rep. 839.

Where words of a particular description in a statute are

followed by general words that are not specific and limited, unless there be a clear manifestation of a contrary purpose, the general words are to be construed as applicable to persons or things, or cases of like kind as those designated by the particular words. Lewis' Sutherland Stat. Const., § 443; Alexander v. Alexander, 5 Cranch, 1, 7; United States v. Freeman, 3 How. 556-564; Atkins v. Disintegrating Co., 18 Wall. 272, 301; Cope v. Cope, 137 U. S. 682-688; Stockdale v. Insurance Co., 20 Wall. 323; United States v. Garrettson, 42 Fed. Rep. 22; Bishop on Statutory Crimes, § 246 et seq.; Chapman v. Forsythe, 2 How. 202; Woolsey v. Cade, 54 Alabama, 385; Amos v. The State, 73 Alabama, 501; Bishop on Statutory Crimes (2d ed.), §§ 119, 193, 194, 218, 220, 227.

Sections 3894 and 5480 were enacted at the same time and must be read together, and it must be presumed that they will be harmonious; they cannot be so blended as to constitute an offense not contained in either, considered separately. United States v. Sauer, 88 Fed. Rep. 240; McDaniel v. United States, 87 Fed. Rep. 324.

The count is bad, in charging "Money" instead of "Property." This count is also bad for duplicity, as it charges both causing to be deposited for mailing, and causing to be delivered, etc. Bates v. State, 124 Wisconsin, 612; United States v. Conrad, 59 Fed. Rep. 458; Horner v. United States, 44 Fed. Rep. 677; S. C., 143 U. S. 207.

MR. JUSTICE LURTON delivered the opinion of the court.

This is a writ of error to review a judgment quashing an indictment as not stating an offense triable in the Western District of Kentucky. The indictment contained two counts. The first is drawn to bring the offense within § 3894, Revised Statutes, as amended, and the second is based upon § 5480, Revised Statutes, and is for a conspir