3 March 1837 3. 5 Stat. 177. Circuit court powers of certain district courts abolished. 14. So much of any act or acts of congress as vests in the district courts of the United States for the districts of Indiana, Illinois, Missouri, Arkansas, the eastern district of Louisiana, the district of Mississippi, the northern district of New York, the western district of Virginia, and the western district of Pennsylvania, and the districts of Alabama, or either of them, the power and jurisdiction of circuit courts, be, and the same is hereby, repealed;(a) and there shall hereafter be circuit courts held for said districts by the chief or associate justices of the supreme court, assigned or allotted to the circuit to which such districts may respectively belong, and the district judges of such districts One judge to be severally and respectively: either of whom shall constitute a quorum; which circuit courts, and the judges thereof, shall have like powers and exercise like jurisdiction as Powers and juris. Other circuit courts, and the judges thereof; (b) and the said district courts, and the judges thereof, shall have like powers and exercise like jurisdiction as the district courts, and the judges thereof, in the other circuits. From all judgments and decrees, rendered in the district courts of the United States for the western district of Louisiana, western district writs of error and appeals shall lie to the circuit court in the other district in said state, in the same manner as from decrees and judgments rendered in the districts within which a cirent court is provided by this act. (c) a quorum. diction. Appeals from of Louisiana. Ibid. 3 4. To be governed 15. The said circuit courts shall be governed by the same laws and regulations as apply to the other circuit courts of the United States; and the clerks of the said courts, by the same rules respectively, shall perform the same duties, and shall be entitled to receive the same fees and emoluments, which are by law established for the clerks of the other circuit courts of the United States. The allotment of their chief justice and the associate justices of the said supreme court to the several circuits shall be made as heretofore. as other circuit courts. 17 June 1844 8 2. 5 Stat. 676. 16. It shall not be the duty of the justice of the supreme court assigned to any circuit to attend more than one term of the circuit court within any district of such circuit in Supreme court any one year; such term to be by him from time to time designated with reference to judge required to attend at one the nature and importance of the business pending therein, and the public convenience; term only. and at such term, appeals and writs of error from the district court, questions of law arising upon statements of fact agreed by the parties or specially reserved by the district judge, and cases at law and in equity of peculiar interest or difficulty, shall have precedence in the arrangement of the business of the court; but nothing herein contained shall be construed to take away the right of such justice of the supreme court, in his discretion, to attend any other terms of such circuit court, whenever, in his opinion, the public interest or special exigencies may require it. What causes te have precedence at such terin. 24 Sept. 1789 211. 1 Stat. 78. II. JURISDICTION OF THE CIRCUIT COURTS. (d) waukie, on the first Monday of January. Acts 6 August 1846, 9 Stat. 57; and 29 May 1848, 9 Stat. 233. By act 3 March 1805, the superior courts of the territories of the United States, in which a district court is not established by law, are invested with the powers and jurisdiction of a circuit court. 2 Stat. 338. (b) See United States v. Alberty. Hemp. 444. 17. The circuit courts shall have original cognisance, (e) concurrent with the courts of the several states, (g) of all suits of a civil nature at common law (h) or in equity,(i) (a) Circuit court powers have since been conferred upon the following district courts namely, upon the district court for the northern district of Alabama, by act 22 February 1838, 5 Stat. 210; upon the district court for the middle district of Alabama, by act 6 February 1839, 5 Stat. 315; upon the district court for the western district of Arkansas, by act 3 March 1851, 9 Stat. 594; upon the district court for the northern district of Georgia, by act 11 August 1848, 9 Stat. 280; upon the district court for the western district of Louisiana, except in cases of appeal and writs of error, by act 3 March 1849, 9 Stat. 402; upon the district court for the northern district of Mississippi, except in cases of appeal and writ of error, by act 16 February 1839, 5 Stat. 317; upon the district court for the western, district of Tennessee, except in cases of appeal and writs of error, by acts 18 June 1838, 5 Stat. 250; 18 January 1839, 5 Stat. 313;. and 14 April 1842. 5 Stat. 471; upon the district court for the western district of Virginia, by act 28 March 1838, 5 Stat. 215 and upon the district court for the western district of South Carolina, by act 16 August 1856, 11 Stat. 43. The states of Florida, Iowa, Texas and Wisconsin are not attached to either of the judicial circuits. In Florida, there are two district courts, with the powers and jurisdiction of circuit Courts. The district court for the northern district is held at Tallahassee, on the first Monday of January, at St. Augustine, on the first Monday of April, at Apalachicola, on the first Monday of February, and at Pensacola, on the first Monday of March. The district court for the southern district is held at Key West on the first Mondays in May and November. Acts 3 March, 1845, 5 Stat. 788; and 23 February 1847, 9 Stat. 132. In Iowa. there is a district court with circuit court powers; and for judicial purposes the state is separated into three divisions; six sessions are held annually, at Dubuque, on the first Mondays of January and July; at Iowa City, on the first Mondays of May and October; and at Burlington, in the third Mondays of May and October. Acts 3 March 1849, 9 Stat. 411; and 26 February 1853, 10 Stat. 171. In Texas, there are two district courts with circuit court powers. The district court for the eastern district is held at Galveston, on the first Mondays in December and May, and at Brownsville on the first Mondays in March and October; and the district court for the western district is held at Austin, on the first Mondays in January and June; and at Tyler, on the first Mondays in March and November. Acts 29 December 1845, 9 Stat. 1; and 21 February 1857, 11 Stat. 164. In Wisconsin, there is a district court with circuit court powers, which holds one session annually, at the seat of government, on the first Monday of July, and another at Mil (c) For the appellant jurisdiction of the circuit courts, see tit. "Errors and Appeals." (d) They have also original jurisdiction in patent cases, by act 4 July 1836, 17, 5 Stat. 124; in cases of copyright, by act 15 February 1819, 3 Stat. 481; and in suits on assigned debentures, by act 2 March 1799, 3 80, 1 Stat. 689. For the judicial powers of the federal courts, under the constitution, see ante, S, and notes. (e) If jurisdiction be not conferred on the circuit courts by an act of congress, they cannot entertain it. Livingston e. Van Ingen, 1 Paine, 45. But where it is conferred, no act of a state legislature can exempt a party from this jurisdiction. Suydam v. Broadnax, 14 Pet. 67. A bill in equity to enjoin a judgment is not an original suit within the meaning of this section. Dunlap v. Stetson, 4 Mas. 349. (7) Where two tribunals have concurrent jurisdiction, the one which first obtains possession of the subject must adjudicate, and neither party can be forced into another jurisdiction. Shelby . Bacon, 10 How. 56, 68. Board of Foreign Missions v. McMaster, 4 Am. L. R. 526, 530. Ex parte Robinson, 6 McLean, 355. See Wadleigh v. Veazie, 3 Sumn. 165. Tobey v. County of Bristol, 3 Story, 800. (h) A writ of right is such a suit. Green v. Liter, 8 Cr. 229. So is an action or debt on a recognisance of, bail, in another court. Davis v. Packard, 7 Pet. 276. An action of debt on a judgment. Barr . Simpson, Bald. 5-43. And an action of partition. Parties entitled to sue in the courts of the United States are in general entitled to pursue in such courts all the remedies for the vindication of their rights, which the local laws of the state authorize to be pursued in its own courts. Ex parte Biddle, 2 Mas. 472. (i) By suits in equity is to be understood those in which relief is sought according to the principles and practice of the equity jurisdiction as established in English jurisprudence. The act confers the same equity powers on all the circuit courts, and the same rules of decision must prevail in all the states. Robinson . Campbell, 3 Wh. 222-3. United States v. Howland, 4 Ibid. 108. Lorman v. Clarke, 2 McLean, 570-1, s. c., 4 Ibid. 18. Gordon Hobart, 2 Sumn. 401. Pratt v. Northam, 5 Mas. 95. Cropper Coburn, 2 Curt. C. C. 465. where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred 24 Sept. 1799. dollars, (a) and the United States are plaintiffs or petitioners, or an alien is a party, (b) Original civil or the suit is between a citizen (c) of the state where the suit is brought, (d) and a citizen Jurisdiction. of another state:(e) And shall have exclusive (g) cognisance of all crimes and offences, (h) Criminal juriscognisable under the authority of the United States, (i) except where this act otherwise diction. provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offences cognisable therein. But no person No person to be shall be arrested in one district for trial in another, in any civil action before a circuit liable to suit in or district court.(k) And no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving Jurisdiction in the writ;() nor shall any district or circuit court have cognisance of any suit to recover case of assign. the contents of any promissory note or other chose in action (m) in favor of an as- action. (a) In an action to recover damages for a tort, the sum demand ed in the declaration is the amount in controversy; and the verdict of a jury for less than $500, does not affect the jurisdiction of the court. Gordon r. Longest, 16 Pet. 97. Hulsecamp v. Teel, 2 Dall. 358. Where the demand in the declaration is not for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration, the practice is, to allow the value to be given in evidence. Ex parte Bradstreet, 7 Pet. €34. Green v. Liter, 8 Cr. 229. Hartshorn v. Wright, Pet. C. C. 64. (b) An alien, resident in the United States, may maintain an action in the circuit court, against a citizen of the same state in which he resides. Breedlove v. Nicolet, 7 Pet. 413. But in order to sustain the jurisdiction, the defendant must be expressly stated to be a citizen of some one of the United States. Hodgson v. Bowerbank, 5 Cr. 303. For the federal courts have no jurisdiction where both the parties are aliens. Montalet v. Murray, 4 Cr. 46. Mossman v. Higginson, 4 Dall. 12. Bradstreet v. Thomas, 12 Pet. 59. Piquignot v. Pennsylvania Railroad Co., 16 How. 104. The courts have jurisdiction in a case between citizens of the same state, if the plaintiffs are only nominally so, and sue for the use of an alien. Browne v. Strode, 5 Cr. 303. Irvine e. Lowry, 14 Pet. 293. McNutt v. Bland, 2 How. 9. So alien heirs may sue in the circuit court, though claiming through an ancestor who was a citizen of the same state as the defendant. Weems v. George, 13 How. 190. And if an alien and a citizen join in a suit against defendants, whom the citizen plaintiff is not competent to sue, and thereupon the citizen plaintiff's name is stricken out, the court has jurisdiction, and may proceed to a decree. Conolly v. Taylor, 2 Pet. 556. And. it seems, they will entertain jurisdiction of a cause where all the parties are aliens, if none of them bject to it. Mason v. Ship Blaireau, 2 Cr. 240. Piquignot v. Pennsylvania Railroad Co., 16 How. 106. See ante 9, note (h). The jurisdiction of the supreme court, in suits affecting foreign consuls, although original, is not exclusive of that hereby conferred on the circuit courts. Graham e. Stucken, Circuit Court, 8. District, New York, 27 April 1857. Nelson, J. (c) A corporation created by, and transacting business in a state, is to be deemed an inhabitant of the state, capable of being treated as a citizen, for all purposes of suing and being sued. Louisville Railroad Co. v. Letson, 2 How. 497. Marshall v. Baltimore and Ohio Railroad Co., 16 Ibid. 314. Wheeden v. Camden and Amboy Railroad Co., 4 Am. L. R. 296. Greeley v. Smith, 3 Story, 76. New York and Erie Railroad v. Shepard, 5 McLean, 455. Where a corporation is sued, it is not enough, in order to give jurisdiction, to say that the corporation is a citizen of the state where the suit is brought. But an averment is sufficient that the corporation was created by the laws of the state, and had its principal place of business there. Lafayette Ins. Co. v. French, 18 How. 404. (d) The circuit courts have no jurisdiction when neither of the parties are citizens of the state in which the action is brought. Shute v. Davis, Pet. C. C. 431. Nor have they jurisdiction between a state and its own citizens, or citizens of other states. Gale v. Babcock, 4 W. C. C. 199. It was, at one time, supposed that this restriction conflicted with the provision of the constitution which gives jurisdiction to the federal courts in all cases between citizens of different states. Taylor v. Cook, 2 McLean, 516. Dundas r. Bowler, 3 Ibid. 204. But it is now settled that, although the constitution gives a broader extent to the judicial power, the actual jurisdiction of the circuit courts is governed by the act of congress. Moffat r. Soley, 2 Paine, 103. Hubbard v. Northern Railroad Co., 25 Verm. 715. The constitution has defind the judicial power, but has not prescribed how much of it shall be exercised by the circuit courts. Turner v. Bank of N. America, 4 Dall. 10. McIntire v. Wood, 7 Cr. 506. Kendall v. United States, 12 Pet. 616. Cary v. Curtis, 3 How. 245.. (A citizen of the District of Columbia is not entitled to sne in the circuit court. Wescott e. Fairfield Township, Pet. C. C. 45. Vasse v. Mifflin, 4 W. C. C. 519. Hepburn v. Ellzey, 2 Cr. 445. Nor can a citizen of a territory of the United States. Corporation of New Orleans v. Winter, 1 Wh. 91. Judicial citizenship, or that species of citizenship intended by the constitution and act of congress, in reference to the jurisdiction of the courts of the United States, is nothing more or less than residence or domicil in a particular state, the person claiming to be a citizen of such state being, at the same time, a citizen of the United States. Read v. Bertrand, 4 W. C. C. 516. Lessee of Cooper v. Galbraith, 3 Ibid. 546. Lessee of Butler v. Farnsworth, 4 Ibid. 101. Prentiss v. Barton's Executors, 1 Brock. 391. Gassies v. Ballon. 6 Pet. 761. Shelton . Tiffin. 6 How. 163. But a person may reside in one state, and be a citizen of another. Evans v. Davenport, 4 McLean, 574. And to deprive an American citizen of the right of suing In a circuit court, on the ground of his not being a citizen of any another district ment of chose in particular state, there ought to be very strong evidence of his being a mere wanderer, without a home. Rabaud v. D'Wolf, 1 Paine, 580. Executors may sue in the circuit courts, although their testators were citizens of the same state as the defendant. Childress v. Emory, 8 Wh. 642. So, the removal of one of the parties into the same state, pendente lite, will not defeat the jurisdiction. Morgan v. Morgan, 2 Wh. 290. Dunn v. Clarke, 8 Pet. 1. Clarke v. Mathewson, 12 Ibid. 164. Thaxter v. Hatch, 6 McLean, 68. And the circuit courts are not deprived of their jurisdiction, where it arises from the citizenship or alienage of parties, by the joinder of a mere nominal party, who does not possess the requisite character. Ward v. Arredondo, 1 Paine, 410. Wood v. Davis, 18 How. 467-8. When the jurisdiction depends upon the character of the parties, it must be positively averred upon the record. An omission to do so, is a fatal defect on error, although no question of jurisdiction was made in the court below. Bingham v. Cabot, 3 Dall. 382. Abercrombie v. Dupuis, 1 Cr. 343. Wood v. Wagnon, 2 Ibid. 9. Capron v. Van Noorden, Ibid. 126. Brown v. Keene, 8 Pet. 112. Jackson v. Ashton, Ibid. 148. Harrison v. Nixon, 9 Ibid. 483. Piquignot v. Pennsylvania Railroad Co., 16 How. 104. And the citizenship averred may be contested by plea to the jurisdiction. Mollan v. Torrance, 9 Wh. 537. But the burden of proof in such case is on the defendant, if he allege that the plaintiff is a citizen of the same state. Sheppard v. Graves, 14 How. 503. Jones v. League, 18 Ilow. 76. See Catlett v. Pacific Insurance Co., 1 Paine, 594. (g) By act 23 August 1842, 3. the district courts are invested with concurrent jurisdiction of all crimes and offences against the United States, the punishment of which is not capital. 5 Stat. 517. (h) No act of congress confers on the federal courts the right to summon grand juries, or describes their powers: the laws of congress have invested the courts with criminal jurisdiction, and since this jurisdiction can only be exercised through the instru mentality of grand juries, the power to direct them results by necessary implication; and hence, the powers of grand juries are co-extensive with, and limited by the criminal jurisdiction of the courts to which they are an appendage. United States v. Hill, 1 Brock. 156. (i) It seems, that no indictment can be maintained in the fede ral courts, for offences merely at the common law. United States v. Hudson. 7 Cr. 32. United States v. Coolidge, 1 Wh. 415. United States v. Worrall, 2 Dall. 384. United States v. Hutchinson, 7 Penn. L. J. 367. United States v. Ramsay, Hemp. 481. 5 Opin. 55. United States v. Clark, 1 Gall. 302. Except in the District of Colum bia. 6 Opin. 599. See contrà, United States r. Coolidge, 1 Gall. 488. United States v. Worrall, 2 Dall. 395. United States v. Ravara, Ibid. 297. Henfield's case, Whart. St. Tr. 49. United States v. Williams, Ibid. 652. The state courts have no jurisdiction of offences created by act of congress. Commonwealth v. Feely, 2 Wh. Cr. Cas. 585. And see Jackson v. Row, Ibid. C07. (4) The circuit and district courts cannot, either in suits at common law, or in equity, send their process into another district; except where specially authorized to do so, by some act of congress. Ex parte Graham. 3 W. C. C. 456. Wilson v. Graham, 4 Ibid. 53. Ex parte Graham, Ibid. 211. This clause does not enlarge the jurisdiction of the circuit courts. Moffat v. Soley, 2 Paine, 103. (1) In order to give jurisdiction the defendant must be an inhab itant of the district in which the suit is brought, or be found therein at the time of serving the original process, whatever may be the nature or character of that process, Day . Newark Indi Rubber Manufacturing Co., 1 Blatch. 628. They cannot proceed by writ of foreign attachment against a non-resident. Hollings worth v. Adams, 2 Dall. 396. Picquet 2. Swan, 5 Mas. 35. Toland v. Sprague, 12 Pet. 300. Sayles e. Northwestern Insurance Co., 2 Curt. C. C. 212. Nor against an inhabitaut without a personal service. Sadlier . Fallon, 2 Curt. C. C. 579. The defendant, however, may waive his privilege by a voluntary appearance. Harrison v. Rowan, Pet. C. C. 489. Flanders v. Etna Insurance Co., 3 Mas. 158. Gracie v. Palmer, 8 Wh. 699. Toland r. Sprague, 12 Pet. 300. Irvine v. Lowry, 14 Ibid. 293. See act 28 February 1839, tit. "Abatement," 2, and notes. (m) To bring a case within this exception, the action must not only be founded on a chose in action, but it must be assignable, and the plaintiff must sue in virtue of an assignment. A bauk note, payable to bearer, is not such chose in action. Bullard v. Bell, 1 Mas. 251. Wood v. Dummer, 3 Ibid. 308. Bonnafee v. Williams, 3 How. 574. Nor is a bail-bond, for it is but an incident to the original suit. Bobyshall v. Oppenheimer, 4 W. C. C. 482. Nor is a judgment recovered in a state court, although the original cause of action was a negotiable chose in action, on which the circuit court could not have held jurisdiction. Dexter v. Smith, 2 Mas. 303. So also, the circuit court, notwithstanding this 24 Sept. 1789. signee, (a) unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, (b) except in cases of foreign bills of exchange Appellant juris And the circuit courts shall also have appellate jurisdiction from the district courts under the regulations and restrictions hereinafter provided. (c) diction. 2 March 1833 2. 4 Stat. 632. Jurisdiction der the reveLe laws. 24 Sept. 1789 212. 1 Stat. 79. Removal from state to circui courts. 18. The jurisdiction of the circuit courts of the United States shall extend to all cases, in law or equity, arising under the revenue laws of the United States, for which other provisions are not already made by law; and if any person shall receive any injury to his person or property for or on account of any act by him done, under any law of the United States, for the protection of the revenue or the collection of duties on imports, he shall be entitled to maintain suit for damage therefor in the circuit court of the United States in the district wherein the party doing the injury may reside, or shall be found. III. REMOVAL OF CAUSES FROM THE STATE COURTS. 19. If a suit be commenced in any state court against any alien or by a citizen of the state in which the suit is brought against a citizen of another state, (d) and the matter in dispute exceeds the aforesaid sum or value of five hundred dollars, (e) 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, (g) file a petition (h) for the removal of the cause for trial into the next circuit court, to be held in the district where the suit is pending [or if in the district of Maine to the district court next to be holden therein, Becurity to be or if in Kentucky district to the district court next to be holden therein,](i) and offer entered. good and 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 in the cause,(k) 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 the said copies being entered as aforesaid, (m) in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process. (n) 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 court in which the suit commenced. (o) And if in any action com Attachment not to be dissolved by resuoval. clause has jurisdiction of a suit in equity, brought by judgment reditor against his debtor and others, (they being citizens of different states), to set aside conveyances made in fraud of creditors, although the ground of the judgment was a negotiable chose in action, on which, before judgment, a suit could not have been Laintained in such court. Bean v. Smith, 2 Mas. 252. A debt, scured by mortgage, is within the restriction. Sheldon v. Sill, 8 How. 441. It does not, however, apply to an action of replevia to recover the instrument itself, but to an action to recover its contents. Deshler v. Dodge, 16 Ibid. 622. See Clarke v. City of Janesville, 4 Am. L. R. 591. Wilkinson v. Wilkinson, 2 Curt. C. C. 582. (a) An executor or administrator is not such assignee. Serò v. Pitot, 6 Cr. 336. Mayer v. Foulkrod, 4 W. C. C. 349. Nor is an indorsee as respects his immediate indorser; for in such case the plaintiff does not claim through an assignment. Young v. Bryan, 6 Wh. 146. Mollan v. Torrance, 9 Ibid. 537. Evans v. Gee, 11 Pet. 80. Keary v. Farmers' and Merchants' Bank of Memphis, 16 Ibid. 89. Campbell v. Jordan, Hemp. 534. If, however, the plaintiff trace title through an intermediate indorser, he must show that such intermediate indorser could have maintained the suit. Turner v. Bank of North America, 4 Dall. 8. Mollan v. Torrance, 9 Wh. 537. Coffee v. Planters' Bank of Tennessee, 13 How. 187. The restriction, however, only applies to a case in which the immediate assignor or the original party could not have maintained the action; it has no application to a case in which there may have been a prior intermediate assignment to one not competent to sue in the circuit court. Wilson v. Fisher's Executors. Bald. 133 Milledoller v. Bell 2 Wall. Jr. 334. A deed executed for the purpose of giving jurisdiction to the federal court, will not be countenanced so as to sustain the jurisdiction. Maxfield's Lessee v. Levy, 4 Dall. 330. Hurst's Lessee v. McNeil, 1 W. C. C. 70. Starling v. Hawks, 5 McLean, 318. The restriction does not apply to the federal government. United States v. Greene, 4 Mas. 427. (b) In such case the declaration must show that the assignor, by his citizenship, was competent to maintain the suit. Fletcher v. Turner, 5 McLean, 468. Rogers v. Linn, 2 Ibid. 126. This limitation is confined to the time when the suit was commenced. Thaxter v. Ilatch, 6 Ibid. 68. (c) See tit. "Errors and Appeals." Smith v. Jackson, 1 Paine, 453. The 4th section of this act provides "that no district judge shall give a vote in any case of appeal or error from his own decision; but may assign the reasons of such his decision." See supra, 11. (d) Under this section, such cases only are removable from the state to the circuit court, as might, under the law or constitution of the United States, have been brought before the circuit court by original process. Smith v. Rines, 2 Sumu. 338. A suit cannot be removed where a part of the plaintiffs or defendants are citizens of the state where the suit is brought, and of some other state. Wilson v. Blodget, 4 McLean, 363. To sustain the jurisdiction, the citizenship of each individual must be such as to make the suit removable. Hubbard v. Northern Railroad Co., 25 Verm. 715, 719. Board of Foreign Missions . McMaster, 4 Am. L. R. 529. Welch . Tennent, 4 Cal. 203. But the citizenship need not appear on the original record. Ladd v. Tudor, 3 W. & M. 325. No suit can be removed in which a state is a party. New Jersey v. Babcock. 4 W. C. C. 344. (e) The sum demanded in the declaration is the amount in controversy. Gordon v. Longest, 16 Pet. 97. Muns e. Dupont. 2 W. C. C. 463. And the defendant cannot be deprived of the right of removal, by an amendment reducing that sum, allowed by the state court, after the right of removal was complete. Kanouse v. Martin, 15 How. 198. Any subsequent proceeding in the state court. is erroneous. Gordon v. Longest. 16 Pet. 97. Kanouse v. Martin, 15 How. 198. If any doubt exist as to the real amount in controversy, the court below may inquire into it by evidence. Ladd r. Tudor, 3 W. & M. 325. A recovery of less than $500 does not affect the plaintiff's right to costs. Ellis v. Jarvis. 3 Mar 457. Nor is the jurisdiction affected by a release of part of the debt, so as to reduce it to less than $500. Wright v. Wells, Pet. C. C. 220. (9) Defendants can remove the cause or appear in the circuit court at different times, where their appearance is entered at different times in the state court. Ward v. Arredondo, 1 Paine, 410. The agreement of the state court to consider the petition as filed of a preceding term, where the appearance was entered, nunc pro tunc, cannot give jurisdiction to the circuit court. Gibson r. Johnson, Pet. C. C. 44. (4) All the defendants must join in the petition for removal. Smith v. Rines, 2 Sumn. 339. But see Ward v. Arredondo, 1 Paine, 410, where it is held that the defendants may remove the cause at different times, but that the circuit court will remand it, unless the defendants all eventually appear. See Sayles v. Northwestern Ins. Co., 2 Curt. C. C. 212. (i) The circuit court powers of the district courts of Maine and Kentucky are abolished, by acts 24 February 1807, 2 Stat. 420; and 30 March 1820, 3 Stat. 554. (k) If the bail afterwards seek to surrender the principal, it should be in open court, and not by a commitment to jail according to the local law of the state. Comstock v. Seagraves, 1 Story, 546. (1) The complainant, however may, it seems, dismiss his bill. Matthews v. Lyall, 6 McLean, 13. See Illius v. New York and New Haven Railroad Co., 3 Kern. 597. (m) On the transmission of the process or declaration by which the suit was commenced in the state court, and the entry of the same in the circuit court, the plaintiff must file a new declaration, according to the practice of the latter court, as if the suit were an original one there. Martin v. Kanouse, 1 Blatch. 149. (n) A case removed from a state court into the circuit court, stands, in the latter, as it did at the time of its removal in the former. Grier v. Gregg, 4 McLean, 202. But an injunction allowed before the filing of the bill, and the state court, necessarily falls, as the circuit court cannot punish for a contempt of that court. McLeod v. Duncan, 5 Ibid. 342. (0) See Irvine v. Lowry, 14 Pet. 299. other state may menced in a state court, the title of land be concerned, and the parties are citizens of the 24 Sept. 1789. same state, and the matter in dispute exceeds the sum or value of five hundred dollars, Suits on titles exclusive of costs, the sum or value being made to appear to the satisfaction of the court, derived from an either party, before the trial, shall state to the court and make affidavit if they require be removed. it, that he claims and shall rely upon a right or title to the land, under a 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 public records shall put it out of his power, and shall move that the adverse party inform the court whether he claims a right or title to the land under a grant from the state in which the suit is pending; the said adverse [party] shall give such information or 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 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 [or if in the district of Maine, to the court next to be holden therein; or if in Kentucky district, to the district court next to be holden therein;] but if he is the defendant, shall do it under the same regulations as in the before-mentioned case of the removal of a cause into such court by an alien: and 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 Issues to be tri-d his claim. And the trial of issues in fact in the circuit courts shall, in all suits, except &c. those of equity and of admiralty and maritime jurisdiction, be by jury. by a jury, except, 4 Stat. 633. revenue officers tificate. issue. 20. In any case where suit or prosecution shall be commenced in a court of any state 2 March 1833 2 3. against any officer of the United States, or other person, for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on Actions against account of any right, authority or title, set up or claimed by such officer, or other person may be removed. under any such law of the United States, (a) it shall be lawful for the defendant in such suit or prosecution, at any time before trial, upon a petition to the circuit court of the United States, in and for the district in which the defendant shall have been served with process, setting forth the nature of said suit or prosecution, and verifying the said petition by affidavit, together with a certificate signed by an attorney or counsellor at law of Petition and cersome court of record of the state in which such suit shall have been commenced, or of the United States, setting forth that, as counsellor for the petitioner, he has examined the proceedings against him, and has carefully inquired into all the matters set forth in the petition, and that he believes the same to be true; which petition, affidavit and certificate shall be presented to the said circuit court, if in session, and if not, to the clerk thereof, at his office, and shall be filed in said office, and the cause shall thereupon be entered on the docket of said court, and shall be thereafter proceeded in as a cause originally commenced in that court; and it shall be the duty of the clerk of said court, Certiorari or if the suit were commenced in the court below by summons, to issue a writ of certiorari habeas corpus to to the state court, requiring said court to send to the said circuit court the record and proceedings in said cause; or if it were commenced by capias, he shall issue a writ of habeas corpus cum causa, a duplicate of which said writ shall be delivered to the clerk of the state court, or left at his office by the marshal of the district, or his deputy, or some person duly authorized thereto; and, thereupon it shall be the duty of the said state court Proceedings in to stay all further proceedings in such cause, and the said suit or prosecution, upon stay. delivery of such process or leaving the same as aforesaid, shall be deemed and taken to be moved to the said circuit court, and any further proceedings, trial or judgment therein in the state court shall be wholly null and void. And if the defendant in any such suit be in Duty of marshal. actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the said cause according to the rules of law and the order of the circuit court, or of any judge thereof, in vacation. And all attachments made and all bail and Attachments and other security given upon such suit, or prosecution, shall be and continue in like force infor and effect, as if the same suit or prosecution had proceeded to final judgment and execution in the state court. And if upon the removal of any such suit, or prosecution, it shall Proceedings be made to appear to the said circuit court that no copy of the record and proceedings the record can be where no copy of therein, in the state court, can be obtained, it shall be lawful for said circuit court tobtained. allow and require the plaintiff to proceed de novo, and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said circuit court; and on failure of so proceeding, judgment of non pros. may be rendered against the plaintiff with costs for the defendant. 21. In any case in which any party is, or may be by law, entitled to copies of the record and proceedings in any suit or prosecution in any state court, to be used in any (a) The act gives the jurisdiction and right of removal "in any case" falling within the particular class of cases provided for, without regard to the amount in controversy in the suit. Wood r. Matthews, 23 Verm. 735. The question whether the property for the taking of which the action was brought, was seized by the state court to bail to continue Ibid. 24. defendant in the performance of his duty as an officer of the cus toms, under the revenue laws, is a matter of fact, involved in the merits of the case, and cannot be raised or determined upon s motion to dismiss the suit. Ibid. How record of 2 March 1833. court of the United States, if the clerk of said state court shall, upon demand, and the payment or tender of the legal fees, refuse or neglect to deliver to such party certified state court may copies of such record and proceedings, the court of the United States in which such be supplied on refusal of a copy, record and proceedings may be needed, on proof, by affidavit, that the clerk of such state court has refused or neglected to deliver copies thereof, on demand as aforesaid, may direct and allow such record to be supplied by affidavit, or otherwise, as the circumstances of the case may require and allow; and, thereupon, such proceeding, trial and judgment, may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceedings had been regularly before the said IV. SPECIAL COURTS. 24 Sept. 1789 1 Stat. 75. 5. 2 March 1793 23. 1 Stat. 334. Clerks to give notice. court. 22. And the circuit courts shall have power to hold special sessions for the trial of criminal causes at any other time at their discretion, or at the discretion of the supreme court. (a) 23. The supreme court or, when the supreme court shall not be sitting, any one of the justices thereof, together with the judge of the district within which a special session, Judges may dias hereafter authorized, shall be holden, may direct special sessions of the circuit courts rect special criminal sessions at to be holden for the trial of criminal causes, at any convenient place within the district, other places. nearer to the place where the offences may be said to be committed than the place or places appointed by law for the ordinary sessions :(b) That the clerk of such circuit court shall, at least thirty days before the commencement of such special session, cause the time and place for holding the same to be notified, for at least three weeks successively, in one or more of the newspapers published nearest to the place where the session is to be holden: That all process, writs and recognisances of every kind, whether respecting juries, witnesses, bail or otherwise, which relate to the cases to be tried at the said special sessions, shall be considered as belonging to such sessions in the same manner as May be adjourn if they had been issued or taken in reference thereto: That any special session may be adjourned to any time or times previous to the next stated meeting of the circuit court: Unfinished busi- That all business depending for trial at any special court, shall, at the close thereof, be considered as of course removed to the next stated term of the circuit court. ed to next stated session. ness. 28 Feb. 1839 28. 5 Stat. 322. interested, or sel for. or are related to the parties, cause to another circuit be certified to ourt. 24. In all suits and actions in any circuit court of the United States in which it shall appear that both the judges thereof or the judge thereof, who is solely competent by law Where judges are to try the same, shall be any ways concerned in interest therein, or shall have been of have been coun- counsel for either party, or is or are so related to or connected with either party as to render it improper for him or them, in his or their opinion, to sit in the trial of such suit or action, it shall be the duty of such judge or judges, on application of either party, to cause the fact to be entered on the records of the court; and also to make an order that an authenticated copy thereof, with all the proceedings in such suit or action, shall be forthwith certified to the most convenient circuit court in the next adjacent state, or in the next adjacent circuit; (c) which circuit court shall, upon such record and order being filed with the clerk thereof, take cognisance thereof in the same manner as if such suit or action had been rightfully and originally commenced therein, and shall proceed to hear and determine the same accordingly, and the proper process for the due execution of the judgment or decree rendered therein, shall run into and may be executed in the district where such judgment or decree was rendered, and also into the district from which such suit or action was removed. 4 July 1840 2. 5 Stat. 393. Judges may ap point special sessions, at their discretion. 25. The presiding judge of any circuit court may, at his discretion, appoint special sessions thereof, to be held at the places where the stated sessions thereof are holden; at which special sessions it shall be competent for the said court to entertain jurisdiction of and to hear and decide all cases in equity, cases in error or on appeal, issues of law, motions in arrest of judgment, motions for a new trial, and all other motions, and to award executions and other final process, and to do and transact all other business and For all business direct all other proceedings, in all causes pending in the circuit court, except trying any cause by a jury, in the same way and with the same force and effect as the same could or might be done at the stated sessions of such court. except jury trials. V. MISCELLANEOUS PROVISIONS. 24 Sept. 1789 26. 26. A circuit court may also be adjourned from day to day by any one of its judges 1 Stat. 76. or if none are present, by the marshal of the district, until a quorum be convened. 27. When in a circuit court judgment upon a verdict in a civil action shall be entered, execution may, on motion of either party, at the discretion of the court and on such Ibid. 18. (a) See United States v. Cornell. 2 Mas. 98. United States v. The Insurgents of Pennsylvania, 3 Dall. 513. (b) See 2 Mas. 98. 3 Dall. 513. (c) When both of the judges of the circuit court are incompetent from interest, or having been of counsel, to sit in a cause, it should be certified to the nearest circuit court, in the same circuit, com petent in point of law to try the same. But in cases of admiralty appeals and writs of error from the district court, if the judge of the supreme court assigned to that circuit, cannot sit, for either of the same reasons, the case must be certified to the nearest cir cuit court of the next adjacent circuit. Richardson v. City of Boston, 1 Curt. C. C. 250. |