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129 office, and satisfactory evidence shown to the justice of the supreme shall allotted to that circuit in which such district court ought by law to be holdipo is an alien the alienage must appear on the record. It is not sufficient to describe a party as of a particular state.—Bingham v. Cabot, 3 Dall. 382. Wood v. WagDon, 2 Cr. 1, 126, 4 Dall. 8, 12, Sullivan v. The Fulton Steamboat, 6 Wheat. 450. Breithaupt et al. v. The Bank of Georgia et al. 1 Pet. 238. Or to say that he resides in a different state.--Abercrombie v. Dupuis, 1 Cr. 343. Brown v. Keene, 8 Pet. 112. And if a blank be left in the declaration for the state of which the plaintiff is a citizen it is fatal.—Turner v. Emille, 4 Dall. 7. Even where the plaintiff assigns for error his own omission to state the character in which he sues, the supreme court will reverse the proceedings.-Capron v. Van Norden, 2 Cr. 125. 6 Wheat. 450.
The general words of the eleventh section of the act of September twenty-fourth, 1789, (art. 522,) giving the circuit court cognizance of suits of a civil nature, where an alien is a party, are restricted by the constitution which gives jurisdiction in controversies between a state or citizens of a state, and foreign states citizens or subjects. Hence if a plaintiff be an alien, and it be so averred, still there must be an averment that the defendant is a citizen of a state.--Hodgson v. Bowerbank, 5 Cr. 303. Mossman v. Higginson, 4 Dall. 11. Jackson v. Twentyman, 2 Pet. 136. For the same reason, where both parties are aliens the circuit court has not jurisdiction.-Ibid. Montalet v. Murray, 4 Cr. 46.
An alien enemy cannot sustain a suit in the courts of the United States; but the alienage must be taken advantage of, on a plea in abatement.--Mumford v. Mumford, 1 Gall. 396.
The provision of the eleventh section of the act of 1789, (art. 522,) denying, ex. cept in cases of foreign bills, cognizance, to the circuit or district court, of suits, w recover on choses in action assigned, unless suit might have been brought in such court thereon, before assignment, does not extend to notes payable to bearer. -Bullard v. Bell, Mason, 251.
But such provision is not confined to assignable paper. It embraces as well equitable as legal assignments, the assignee of an open account as the assignee of a note, and assignees by operation of law, as assignees by deed.--Seré v. Pitot, 6 Cr.332. Yet an administrator de bonis non or residuary'legatee not being within the words of the act, if personally competent to sue is not prohibited by this clause. -Chappedelain v. Dechenaux, 4 Cr.306.
Nor is the endorsee of a promissory note, citizen of one state, precluded from suing the endorser, citizen of another state, in the circuit court, whether the endorser could sue the maker in such court or not. Young v. Bryan, 6 Wheat. 146. 9 Wheat. 537. Mollan v. Torrence.
But if the suit be against a remote endorser and the plaintiff trace his title through an intermediate endorser, he must show that such intermediate endorser could have sustained his action in the circuit court.-9 Wheat. 537.
Where the plaintiff claims as assignee, it must appear by the record, that the person, under whom he claims by assignment, might have prosecuted his suit in the circuit court; otherwise the court has not jurisdiction.—Turner v. Bank of North America, 4 Dall. 8. Montalet v. Murray, 4 Cr. 46.
Trespass quare clausum fregit does not lie in the circuit court, for a trespass com. mitted by the defendant on the lands of the plaintiff lying within the United States, but without the district in which the court is situate, though the defendant be a citizen of the state in which the suit is brought, and the plaintiff a citizen of a dif. ferent state.—Livingston v. Jefferson, 4 Hall's L. J.78.
The privilege of the defendant to be sued in the district of which he is resident or found, is of a personal nature, he may waive it, the jurisdiction of the court not being restricted by the act granting such privilege. Hence, if the defendant be served with process from the circuit court of another state and appear without objecrion, he waives his privilege and the court may entertain the cause.-Logan v. Patrick, 5 Cr. 288. Gracie v. Palmer, 8 Wheat. 699. Shute v. Davis, 1 Peters, 431.
After a cause has been heard in the supreme court and sent back on mandate, it is too late to question the jurisdiction of the circuit court over the parties.6 Cr. 267.
It is not necessary to aver upon the record that the defendant in the circuit court was an inhabitant of the district, or was found therein at the time of serving the writ-Gracie v. Palmer, 8 Wheat. 699.
An appearance to the subpæna by a solicitor of the court is a waiver of such pri
le district attorney, or marshal, of such district, in
hall be immediately published in one or more news. papers, printed in such district, and at least thirty days before the session of such circuit court, and shall be deemed a sufficient notification to all concerned. And such circuit court shall thereupon have the same cognizance of all such actions, suits, causes, pleas, or processes, civil or criminal, in the like manner as such district court might have, or the circuit colirt, had the same been originally commenced therein ; and shall proceed to hear and determine the same accordingly; and such justice of the supreme court, during the continuance of such disability, shall exercise all the powers vested by law in the judge of the district court in such district. And all bonds and recogniz. ances taken for, or returnable to, such district court, shall be taken to be to the circuit court, to be holden thereafter, in pursuance hereof, and shall have the same force and effect in such circuit court as they could have had in the
vilege, though at a subsequent term a plea be put in claiming it. But the validity of such plea is not determinable by the docket entries ; the authority of the solicitor to appear may be denied, and can be decided only on pleadings which put it in issue.-Harrison v. Rowan, 1 Pet. 487.
A foreign attachment will not lie in the circuit court against a defendant, an inhabitant of another state. If such action be brought the court will quash it with costs.-Hollingsworth v. Adams, 2 Dall. 396. But if the defendant appears by entering special bail he waives all exception to the non service of process.—Pollard v. Dwight, 4 Cr. 421.
A foreign attachment may issue from a circuit court against an alien defendant where the state law recognizes that mode of proceeding.--Fisher v. Consequa, Serg. on Attach, 44.
The act incorporating the bank of the United States, gives the circuit courts jurisdiction of suits by and against the bank.-Osborne v. U. S. 9 Wheat. 738. And the bank may sue in such courts as endorser or bearer of a promissory note, although the original payer or endorser could not sue therein being a citizen of the same state with the defendants.-Bank of U. S. v. Planters' Bank of Georgia, 1 Wheat. 904.
The circuit court cannot enjoin proceedings in a state court, though the bill were removed therefrom.—Diggs v. Wolcott, 4 Cranch, 173.
It may issue an injunction to stay proceedings on a judgment in the same court, between the same parties, though the subpæna be served out of the district, if the defendant files an answer to the plea without objecting to the service or process.Logan v. Patrick, 5 Cranch, 288.
It has not power to set aside its own decree, on motion, after the term at which it was rendered.-Cameron v. MÄRoberts, 3 Wheaton, 591.
The circuit court, as a court of equity, cannot award a writ of habere facias possessionem, to enforce its decree, by which to invest the plaintiff with lands, in possession of defendant.-Wallen v. Williams, 7 Cranch, 602. Ibid. 278.
The joinder of improper parties will not affect the jurisdiction of the circuit courts, in equity; as between the parties who are properly before the court, if a decree may be pronounced, as between the parties who are citizens of different states.-10 Wh. 181, 188. Carneal v. Banks.
When a title to land is in its nature equitable only, but by the local laws and usages of a state, it is considered as giving a legal right, the courts of the United States will also so consider it.—3 Dall. 424. The general rule is, that remedies in respect to real estate, are to be pursued according to the law of the place where the estate is situated.—3 Wheat. 212. 10 Wheat. 192, 202.
The circuit courts have chancery jurisdiction in every state, and the same chancery powers and rules of decision in all the states.- United States v. Howland & al. 4 Wheat. 100.
district court to which they were taken : But nothing herein contained shall be construed to require of the judge of the supreme court, within whose circuit such district may lie, to hold any special court, or court of admiralty, at • any other time than the legal time for holding the circuit court of the United States in and for such district.(1)
The clerk of such district court shall, during the continuance of the disability of the district judge, continue to certify, all suits or actions, which may thereafter be brought to such district court, and transmit them to the circuit court next thereafter to be holden in the same district; and such circuit court shall have cognizance thereof; shall hear and determine the same in like manner as before provided : when the disability of the district judge shall Cease, all suits or actions then pending and undetermined in the circuit court, in which by law the district courts have an exclusive original cogni. zance, shall be remanded, and the clerk of such circuit court shall transmit the same, pursuant to the order of such court, with all matters and things relating thereto, to the district court next thereafter to be holden in such district, and the same proceedings shall be had therein in such district court, as would have been, had the same originated, or been continued in the said district court.(2)
525. In case of the district judge in any district being unable to discharge his duties, as aforesaid, the district clerk of such district shall, by leave or order of the circuit judge of the circuit in which such district is included, take, during such disability of the district judge, all examinations and depositions of witnesses, and make all necessary rules and orders preparatory to the final hearing of all causes of admiralty and maritime jurisdiction.(3)*
526. The circuit courts shall have original cognizance, as well in equity as at law, of all actions, arising under any law of the United States, granting or confirming to authors or inventors the exclusive right to their respective writings, inventions, and discoveries; and upon a bill in equity, filed by a party aggrieved, have authority to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of authors or inventors, secured to them by the laws of the United States, on such terms and conditions as such court may deem fit and reasonable. But from all judgments and decrees of a circuit court, rendered in the premises, a writ of error or appeal, as the case may require, shall lie to the supreme court in the same manner, and under the same circumstances, as in other judgments and decrees of such court.(4)
527. In all suits in any district court in which the judge of such court is any ways concerned in interest, or has been of counsel for either party, or is so related to, or connected with either party, as to render it improper for him, in his opinion, to sit on the trial, he shall, on application of either party, cause the fact to be entered on the records of the court; with an order that an authenticated copy thereof, with all the proceedings in such suit be forthwith certified to the next circuit court of the district'; if there be no circuit court in such district, to the next circuit court in the state, if there be no circuit court in such state, to the most convenient circuit court in an adjacent
(1) Act 2d March, 1809, sec. 1.
(4) Act 15th Feb. 1819. 4th July, 1836, sec. 17. See Article 2131.
'Cnder the act 2d March, 1809, where causes have been certified into the cir. cuit court, on account of the disability of the district judge, and that disability terminates by his death, the circuit court must remand the causes that have been thus certified, to the district court.-Exparte United States, 1 Gall. 338.
state; which circuit court shall, upon such record being filed with the clerk thereof, take cognizance thereof, in the like manner as if such suit had been originally commenced in that court, and the jurisdiction of such circuit court shall extend to all such cases so removed, as were cognizable in the district court from which they were removed.(1)
528. If a suit be commenced in a 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 exceed the value of five hundred dollars, exclusive of costs, 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 sufficient surety for his entering, in such court, on the first day of its session, copies of the process against him, and also for his there appearing, and entering special bail in the cause, if special bail was originally requisite therein, the state court shall accept the surety, and proceed no further in the cause; and any bail originally taken, shall be discharged; and such copies being entered in the circuit court, the cause shall there 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 such goods or estate, to answer the final judgment, 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.(2)*
In any case where suit or prosecution shall be commenced in a court of any state against any officer of the United States, or other person, for or on
(1) Act March 3d, 1821, sec. 1. Act 8th May, 1792, sec. 11.
(2) Act 24th Sept. 1789, sec. 12, cl. 1.
* Suits against an alien mentioned in the foregoing provision, include only suits between an alien and a state, or a citizen thereof. Mossman v. Higginson, 4 Dall. 11. Hodgson v. Bowerbank, 5 Cr. 363.
If the state court be satisfied that the sum in dispute exceeds five hundred dollars exclusive of costs, and thereupon the case be removed to the circuit court, and the plaintiff declare for a larger sum, he cannot, by afterwards releasing, part of his demand, and thereby reducing it below five hundred dollars, oust the circuit court of its jurisdiction.-Wright v. Wells, 1 Pet. 220.
If the defendant suffer the term to which the suit is brought and at which he appeared, and the next succeeding term, to pass over without filing his petition for removal, a petition afterwards filed will not give the circuit court jurisdiction, although the state court suffer the petition to be filed, as of the proper term, when appearance was entered nunc pro tunc.—Gibson v. Johnson, 1 Pet. 44.
And if a cause be improperly removed, it is the duty of the circuit court to remand it, whence it came; and on error from the circuit court, the supreme court will direct the cause to be so remanded.—Gibson v. Johnson, 1 Pet. 44. Pollard v. Dwight, 4 Cr. 421.
The defendant after removing the cause to the circuit court and appearing there, cannot except to the jurisdiction of the circuit court.-Ib. Patterson v. U. States, 2 Wheat. 221. Hollingsworth v. Adams, 2 Dall. 396.
Where several defendants are entitled, on appearance, to remove a cause from a state into a circuit court, some of whom have appeared, and others not, those who have appeared cannot alone remove the cause. But this rule is confined to cases, where, from the subject matter of the suit, the judgment or decree must be joint.
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.
Where some of the defendants have removed the cause regularly into a circuit court, the others cannot enter an original appearance in such court.
The circuit court can remand the cause, in case the defendants do not eventually appear.
A state court cannot cause appearance to be entered nunc pro tune, so as to en. tertain a motion for removal.- Ward v. Arredendo & al. 1 Paine, 410.
account of any act done under the revenue laws of the United States, or under colour thereof, or for or on account of any right, authority, or title, set up or claimed by such officer, or other person, under any such law of the United States, it shall be lawful for the defendant in such suit, or prosecu. tion, 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 some 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, if the suit were commenced in the court below by summons, to issue a writ of certiorari 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 delilivered 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 to stay all further proceedings in such cause, and the said suit, or prosecution, upon 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 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 other security given upon such suit, or prosecution, shall be and continue in like force and effect, as if the same suit or prosecu• tion, had proceeded to final judgment and execution in the state court. And if, upon the removal of any such suit, or prosecution, it shall be made to appar to the said circuit court that no copy of the record and proceedings iberein, in the state court, can be obtained, it shall be lawful for said circuit court to 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 procaling, judgment of non pros. may be rendered against the plaintiff with costs for the defendant.(1)
In any case in which any party is, or may be by law, entitled to copies of the records and proceedings in any suit or prosecution in any state court, to be used in any 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 copies of such record and proceedings, the court of the United States in which such record and proordings 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 other
(1) Act 2d March 1833, sec. 3.