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court, to which the case is carried by appeal, has no jurisdiction to act upon it; and consent to an amendment of the record, by the insertion of a final decree by agreement of counsel, will not give jurisdiction. Mordecai v. Lindsay, 19 How., 199.
And where the district court siting in admiralty, adjudged that a sum of money was due, but as the amount to be paid was dependent upon other claims that might be established, no order for the payment of money could be made from the fund in court, until it should be further advised; this was held not such a final decree as would justify an appeal to the circuit court. Montgomery v. Anderson, 21 How., 386.
And where property was seized on land and libeled as forfeited to the United States for violation of the revenue laws, it was held that the case belonged to the common law side of the court; that it could only be reviewed by writ of error; and that appeals from the district to the circuit courts are limited to cases of admiralty and maratime jurisdiction. The United States v. 37 Barrels of Rum, 1 Woods, 19; United States v. Haynes, 2 McLean, 155; United States v. Wonson, 1 Gallis, 5.
Where an appeal is not taken, in case of admiralty and maritime jurisdiction of the district court, to the next term of the circuit court after the rendition of the decree in the district court, it will be dismissed. The United States v. $5,100 in Specie, 1 Woods, 14.
SEC. 632. Copies of proofs and entries certified to appellate court.--In case of an appeal, as provided by the preceding section, copies of the proofs, and of such entries and papers on file as may be necessary on hearing of the appeal, may be certified up to the appellate court.
26 Feb., 1853; c. 80, s. 1, v. 10, p. 163.
Sec. 633. Writ of error to judgments of district courts.-Final judgments of a district court in civil actions, 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. 24 Sept., 1789, c. 20, s. 22, v. 1, p. 84.
Sec. 634. Circuit court in and for the three districts of Alabama.—The circuit court in and for the three districts of Alabama shall exercise appellate and revisory jurisdiction of the decrees and judgments of the district courts for the said districts, under the laws conferring and regulating the jurisdic
tion, powers, and practice of circuit courts in cases removed into such courts, by appeal or writ of error.
3 Mar., 1873, c. 223, s. 4, v. 17, p. 485; 22 June, 1874, c. 401, s. 5, v. 18, p. 195.
Sec. 635. Writs of error and appeals within one year.-No judgment, decree or order of the district court shall be reviewed hy a circuit court, on writ of error or appeal, unless the writ of error is sued out, or the appeal is taken, within one year after the entry of such judgment, decree, or order: Provided, That where a party entitled to prosecute a writ of error or to take an appeal is an infant, or non compos mentis, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within one year after the entry of the judgment, decree, or order, exclusive of the term of such disability. [See & 1008.]
1 June, 1872, c. 255, s. 2, v. 17, p. 196. Sedgwick v. Fridenburg, -11 Blatch., 77.
Sec. 636. Judgment or decree on review.-A circuit court may affirm, modify, or reverse any judgment, decree, or order of a district court brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the district court, as the justice of the case may reqnire. 1 June, 1872, c. 255, s. 2, v. 17, p. 196.
Sec. 637. Jurisdiction of cases transferred from district courts on account of disability, etc.—When any cause, civil or criminal, of whatever nature, is removed into a circuit court, as provided by law, froin a district court wherein the same is cognizable, on account of the disability of the judge of such district court, or by reason of his being concerned in interest therein, or having been of counsel for either party, or being so related to or connected with either party to such cause as to render it improper, in his opinion, for him to sit on the trial thereof, such circuit court shall have the same cognizance of such cause, and in like manner, as the said disdistrict court might have, or as said circuit [court) might have if the same had been originally and lawfully commenced therein; and shall proceed to hear and determine the same accordingly. [See $ $ 587, 601.]
2 Mar., 1809, c. 27, s. 1, v. 2, p. 134; 3 Mar., 1821, c. 51, v. 3, p. 643; 27 Feb., 1877, c. 69, v. 19, p. 241.
Sec. 638. Courts always open for certain purposes. - The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mense and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing, upon their merits, of all causes pending therein. And any judge of a circuit court may, upon reasonable notice to the parties, make, and direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable, of course, according to the rules and practice of the court.
23 Aug., 1842, c. 188, s. 5, v. 5, p. 517; 22 Feb., 1875, c. 95, s. 4, v. 18, p. 333.
SEC. 639. Removal of suits against aliens, etc., where amount of $500 in dispute.- Any suit commenced in any State court, wherein the amount in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, to be made to appear to the satisfaction of said court, may be removed for trial into the circuit court for the district where such suit is pending, next to be held after the filing of the petition for such removal hereinafter mentioned, in the cases and in the manner stated in this section. See post, Sec. 3, act of Mar. 3, 1872.
First. When the suit is against an alien, or is by a citizen of the State wherein it is brought, and against a citizen of another State, it may be removed on the petition of such defendant, filed in said State court at the time of entering his appearance in said State court.
Second. When the suit is against an alien and a citizen of the State wherein it is brought or is by a citizen of such State
against a citizen of the same, and a citizen of another State, it may be so removed, as against said alien or citizen of another State, upon the petition of such defendant, filed at any tinie before the trial or final hearing of the cause, if, so far as it relates to him, it is brought for the purpose of restraining or enjoining him, or is a snit in which there can be a final determination of the controversy, so far as concerns him, without the presence of the other defendants as parties in the cause. But such removal shall not take away or prejudice the right of the plaintiff to proceed at the same time with the suit in the State court, as against the other defendants.
A statute covering the whole subject of a former one, and varying the procedure operates by way of substitution, and therefore impliedly repeals it. If the objects of the two statutes are not the same, both will stand, though they refer to the same subjects. United States v. Claflin, 97 U. S., 546. Act of March 3, 1875, S S 1 and 2; following chapter repealing by implication, subdivisions 1 and 2, of $ 639, of the Revised Statutes.
Third. When a suit is between a citizen of the State in which it is bronght and a citizen of another State, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of filing said petition he makes and files i said State court an affidavit, stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court. '
In order to such removal, the petitioner in the cases aforesaid must, at the time of filing his petition therefor, offer in said State court good and sufficient surety for his entering in such circuit court, on the first day of its session, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the cause, or, in said cases where a citizen of the State in which the suit is brought is a defendant, copies of all process, pleadings, depositions, testimony, and other proceedings in the cause concerning or affecting the petitioner, and also for his there appearing and entering special bail in the cause, if special bail was originally re
quisite therein. It shall thereupon be the duty of the State court to accept the surety and to proceed no further in the cause against the petitioner, and any bail that may have been originally taken shall be discharged.
When the said copies are entered as aforesaid in the circuit court, the cause shall there proceed in the same manner as if it had been brought there by original process, and the copies of pleadings shall have the same force and effect, in every respect and for every purpose, as the original pleadings would have had by the laws and practice of the courts of such State if the cause had remained in the State court.
24 Sept., 1789, c. 20, s. 12, v. 1, p. 79; 27 July, 1866, c. 288, v. 14, p. 306; 2 Mar., 1867, c. 196, v. 14, p. 558; 3 Mar., 1875, c. 137, 88. 2, 7, 9, v. 18, pp. 471, 472, 473. Amended, March 3, 1875.
Subdivision 3 not repealed.--The act of March 3, 1875, has not repealed this provision, and removals under it still depend on the proper citizenship of the parties, as well as local prejudice. Suits cannot be removed from the State courts on account of “prejudice or local influence," unless it is between a citizen of the State in which it is brought and a citizen of another State, and then, only on the petition of the non-resident, be he either plaintiff or defendant. Bible Society v. Grove, 101, U.S., 610. See, also, opinion of BALLARD, J., in Cook v. Ford, 4 Cent. L. J., 561. (1877.)
Suits by executors as such.-Where a petition, under the act of March 2, 1867, corresponding with this subdivision, was filed in a State court, for the removal of a suit brought by the plaintiffs in their representative capacity as executors, against a defendant who was not a citizen of the State where the suit was brought, and the petition alleged, so far as the cit. izenship of the plaintiffs was concerned, that they, “as such executors." were citizens of the State; it was held, that where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, it has reference to the parties as persons; and that a petition for removal must state the personal citizenship of the parties; and therefore the Circuit Court had no jurisdiction on the removal. Amory v. Amory, 95 U. S., 186.
The record should show the proper citizenship of the parties. Insurance Company 1. Pechner, Id., 183. See, also, Bible Society v. Grove, 101 U. S., 610, where it is held that this subdivision is not changed by the act of March 3, 1875.
Where there has been one trial.-Under the provision of the act of March 2, 1867, which allowed a removal on the petition of a citizen of another State, whether plaintiff or defendant, "filed before the trial or final hearing of a suit," and for which the provisions of this subdivision are substituted, in a suit where there had been a trial, “a verdict, and a motion for a new trial made and refused, and a judgment on the verdict, yet it hav