Application for removal must be made during the term at which the 'defendant en ters his appearance. 1 J. J. Marsh. Ky. 232. If 'a state court agree to consider a 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. 1 Pet. C. C. 44; Paine, 410. But See 2 Penn. N. J. 625.
55. In eitateery,When the defenditetivishes to remove the suit, he must file his petition When he enters his appearance, 4 Johns. Ch. N. Y. 94 ; and in an 'action in a court of law, at the time of putting in special bail. 12 Johns. 15A. And if an alien file his petition when he files special bail, he is in time, though the 'bail be excepted to. 1 Caines, N. Y. 248; Cole man, 58. A. defendant in ejectment may file his petition when he is let in to defend. 4 Johns. 493. See Pet. C. C. 220; 2 Wash. C. C. 463; 4 id. 84, 286; 2 YeateS, Penn. 275, 352; 3 Dail. 467; 2 Root, 444; 5 Johns. Ch. N. Y. 300; 3 Ohio, 48.
Remedy by Mandamus.
56. The power of the circuit court to issue a mandamus is confined exclusively to cases in which it may be necessary fur the exercise of a jurisdiction already existing: as, for in Stance, if the court below refuse to proceed to judgment, then a mandamus in the nature of a procedendo may issue. 7 Cranch, 504; 6 Wheat. 598. After the state court had refused to permit the removal of a cause on petition, the Circuit court issued a mandamus to transfer the cause.
Appellate Jurisdiction.
57. The is exercised by means of-1. Writs of error; 2. Appeals from the district courts in admiralty and maritime jurisdiction; 3. Certiorari; 4. Pre cedendo.
5S. This court has juriadiction to issue Writs of error to the district court, on judg ments of that court in civil cases at common law.
The llth section of the act of September 24, 1789, provides that the circuit courts shall also have appellate jurisdiction from the district courts, under the regulations and restrictions thereinafter provided.
By the 22d section, final dedrees and judg ments in 'civil actions in a district court, 'where 'the Matter in dispute exceeds the sum or value of fifty chillers, 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 ad verse party, y the judge of such dis trict cbtirfor a justice of the sUprenie court, the adVerse party having at least twenty days' notice. But there shall he no reversal On
such writ of 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. And writs of error shall not be brought but within five year's after rendering or pass ing the judgment or decree complained of; in case the person entitled to such writ of error be an infant, non compos mends, or im prisoned, 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 plek good.
59. The district judge cannot Sit in the circuit court on a writ of error to the district court. 5 Wheat. 434.
It is observed above that writs of error may be issued to the district court in civil cases at common law ; but a writ of error does not lie froth a circuit to a district court in an admiralty or maritime cause. 1 Gall. C. C. 5.
GO. Appeals from the district to the cir cuit court take place generally in civil causes of admiralty or maritime, urisdiction.
By the act of March 3, 1803, sect. 2, it is en acted that from all final judgments or decrees in any of the district courts Of the United States, an appeal where the matter in dispute, Mcchigive of costs, shall exceed the sum Or value of fifty dollars, shall be alloived to the district court next to be holden in the district Where Such final judgment Or judgnients, decree or decrees, shall be rendered ; and the circuit courts are thereby authorized and re quired to bear and determine such AppeelS.