No. 2601. Book 4, tit. 4, div. 2, chap. 1, sec. 2, § 1, art. 1. No. 2602. process out of the district in which the defendant resides, is the grant of a personal privilege, and not a restriction of the jurisdiction of the court. Being nothing but a privilege it may be waived, either expressly or by implication, as by entering an appearance.(a) But if the defendant appear and put in a plea, claiming the benefit of the privilege, it is no waiver.(b) 2. Of the appellate jurisdiction of the circuit court. 2601. The appellate jurisdiction of the circuit court may be exercised by means of, 1, writs of error; 2, appeals from the district court; 3, certiorari; 4, procedendo. 2602.-1. This court has jurisdiction to issue writs of error to the district court, on judgments of that court in civil causes, at common law; but not in admiralty or maritime causes. (c) The eleventh section of the judiciary act, (d) provides that the circuit court shall have appellate jurisdiction from the district courts, under the regulations and restrictions therein provided. By the twenty-second section, final decrees and judgments in civil actions in a district court, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, may be re-examined, and reversed or affirmed in a circuit court holden in the same district, upon a writ of error, whereto shall be annexed and returned therewith at the day and place therein mentioned, an authenticated transcript of the record and assignment of errors, and prayer for reversal, with a citation to the adverse party, signed by the judge of such district court, or a justice of the supreme court, the adverse party having at least twenty days' notice. But there shall be no reversal on such writ of (a) Logan v. Patrick, 5 Cranch, 288. No. 2603. Book 4, tit. 4, div. 2, chap. 1, sec. 2, § 1, art. 1. No. 2604. error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact. Writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of; or, in case the person entitled to such writ of error be an infant, non compos mentis, or imprisoned, then within five years, as aforesaid, exclusive of the time of such disability. And every justice or judge signing a citation or any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs, if he fail to make his plea good. The district judge cannot sit in the circuit court on a writ of error to the district court. (a) 2603.-2. Appeals from the district to the circuit court take place generally in civil causes of admiralty or maritime jurisdiction. By the act of March 3, 1803, it is enacted, that from all final judgments or decrees in any of the district courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars, shall be allowed to the district court next to be holden in the district where such final judgment or judgments, decree or decrees shall be rendered: and the circuit courts are thereby authorized and required, to hear and determine such appeals. 2604.-3. Although no act of congress authorizes the circuit court to issue a certiorari to the district court for the removal of a cause, yet if the cause be so removed, and instead of taking advantage of the irregularity in proper time and in a proper manner, the defendant makes the defence and pleads to issue, he thereby waives the objection, and the suit will be (a) United States v. Lancaster, 5 Wheat. 434. No. 2605. Book 4, tit. 4, div. 2, chap. 1, sec. 2, § 1, art. 1. No. 2607. considered as an original one in the circuit court, made so by consent of parties. (a) 2605.-4. The circuit court may issue a writ of procedendo to the district court. 3. Of the removal of actions from the state courts. 2606. Actions may be removed from a state court into the circuit court, in two cases: 1, when the matter in dispute exceeds five hundred dollars, exclusive of costs; and 2, when parties claim title to land, under grants of different states. 2607.-1. The twelfth section of the judiciary act(b) provides in certain cases the right of removing a suit instituted in a state court to the circuit court of the district. It is enacted by that law, that if a suit be commenced in any state court against an alien, or by a citizen of the state in which the suit is brought, against a citizen of another state, and the matter in dispute exceeds the aforesaid sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, and 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, and offer good and sufficient security for his entering in such court, on the first day of its session, copies of the said process against him, and also for his then appearing and entering special bail in the cause, if special bail was originally required therein, it shall then be the duty of the state court to accept the surety, and proceed no further in the cause. And bail that may have been originally taken shall be discharged. And the said copies being entered as aforesaid in such court of the United States, the cause shall there proceed in the any (a) Patterson v. The United States, 2 Wheat. 221. No. 2608. Book 4, tit. 4, div. 2, chap. 1, sec. 2, § 1, art. 1. No. 2608. 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 such state they would have been holden to answer final judgment, had it been rendered by the circuit court in which the suit commenced. 2608.-2. The constitution (a) extends the judicial power to controversies between citizens of the same state, claiming lands under grants of different states; and by a clause of the 12th section of the judiciary act, it is enacted, that if, in any action commenced in a state court, the title of land be concerned, and the parties are citizens of the same state, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, shall state to the court, and make affidavit, if it require it, that he claims, and shall rely upon a right or title to the land, under grant from a state, other than that in which the suit is pending, and produce the original grant, or an exemplification of it, except where the loss of records shall put it out of his power, and shall move that the adverse party inform the court, whether he claims a right of title to the land under a grant from the state in which the suit is pending; the said adverse party shall give such information, otherwise not be allowed to plead such grant, or give it in evidence upon the trial; and if he informs that he does claim under any such grant, the party claiming under the grant first mentioned, may then, on motion, remove the cause for trial, to the next circuit court to be holden in such district. But if he is the defendant, he shall do it under the same regulations as in the before mentioned case of the (a) Art. 3, s. 2. No. 2609. Book 4, tit. 4, div 2, chap. 1, sec. 2, § 1, art. 1. No. 2609. And removal of a cause into such court by an alien. neither party removing the cause shall be allowed to plead, or give evidence of, any other title than that by him stated as aforesaid, as the ground of his claim.(a) Application for removal must be made during the term at which the defendant enters his appearance. (b) If a state court agree to consider the petition to remove the cause as filed of the preceding term, yet if the circuit court see by the record that it was not filed till a subsequent term, they will not permit the cause to be docketed. (c) It will be in time, however, if the petition be filed at the time of putting in bail;(d) and a defendant in ejectment may file his petition when he is let in to defend.(e) In chancery, when the defendant wishes to remove his suit, he must file his petition when he enters an appearance.(ƒ) 4. Of the remedy by mandamus. 2609. The power of the circuit court to issue a mandamus, is confined exclusively to cases in which it may be necessary for the exercise of such a jurisdiction already existing; as, for example, if the court below refuse to proceed to judgment, then a mandamus in the nature of a procedendo may issue.(g) After a state court had refused to permit the removal of a cause on petition, the circuit court issued a mandamus to transfer the cause. (a) See 9 Cranch, 292; 2 Wheat. R. 378. (b) Gibson v. Johnson, Pet. C. C. 44; Eastin v. Rucker, 1 J. J. Marsh, 232. (c) Pet. C. C. 44; Ward v. Arredondo, Paine, 410. Sed vide Gelston v. Johnson, 2 Pen. 625. (d) Redmond v. Russell, 12 John. 153; Arjo v. Monteiro, 1 Caines, 248; Bird t. Murray, Colem. 58. (e) Jackson v. Stiles, 4 John. 493. (f) Livingston v. Gibbons, 4 John. Ch. 94. (g) M'Intire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat. 598. VOL. III. 8 |