
    [*] JOHNSON against GELSTON.
    ON CERTIORARI.
    Irregular removal of a cause from this court to the Circuit Court of the United States, does not oust this court of its jurisdiction. Of the regularity, this court is to decide.
    
    
      Mr. I. H. Williamson
    
    moved the court to expunge from the minutes of the court, the rule of February Term last, allowing this cause to be removed to the Circuit Court of the United States; and that the cause proceed as though no such rule had been taken. As a ground of this motion, he read a certified copy of a rule of the said circuit court, setting forth the refusal of that court to receive the cause as carried up from this court on the rule of February Term last; he alleged that the circuit court was of opinion, that it could not obtain jurisdiction by a fiction of law.
    
      Mr. Griffith opposed the motion.
    He said that the refusal at the circuit court to receive the cause, was done at the instance of the counsel for the plaintiff; that the plaintiff had brought himself into the situation in' which he was; that he must lie in his bed as he had made it; that the circuit court could not take notice that anything done in this court, was done nune pro nunc; that in a legal contemplation it might be considered as done at the time it ought to have been done.
    
      Mr. Williamson.
    
    There was nothing improper in his client in opposing the reception of the cause in the circuit court. It was a question of jurisdiction; he had a right to submit that question to the court on the first appearance of the cause; it would be unwise to go on while a doubt should remain as to the jurisdiction.
    
      A. Ogden, on the same side.
    There is no collision between the courts. The circuit court saith it hath no jurisdiction; this court must then have it. But suppose there is a collision between the courts, what is to be done ? This question arises under the Constitution [*] of the United States. The circuit court are, therefore, the constitutional judges of the question; and they have decided that they have no jurisdiction. This [494] court, having jurisdiction, ought to proceed in the cause; if it does not, the plaintiff is thrown out of court, and has no remedy.
    
      Mr. Griffith.
    
    Suppose the bond and petition were executed in September Term,- but through some accident it was not presented, would not the court have a right to receive it the next term as of the preceding term ? The circuit court erred in not receiving the cause; they ought to have received and filed it. The defendant has acquired a right to have his cause tried in the courts of the United States, and this court cannot deprive him of it, by asserting a jurisdiction after the cause is removed. If the plaintiff is in a situation, that he cannot proceed in his cause, it is his own fault, and his case is not a new one; parties are frequently in such situation that the cause cannot be proceeded in.
    
      Mr. Williamson.
    
    This court hath jurisdiction until the cause is removed,-and received in the court above. This cause is depending in this court until the circuit court has obtained and taken jurisdiction; it must be depending in one court or the other; it is not depending in the circuit court; it must, therefore, be depending in this.
    
      
       S. P. Coxe, 88, 105.
      
    
    
      
       See ante, 685.
      
    
   Kirkpatrick, C. J.

I take it to be a rule of law, that the appellate court, that is, the court that receives the appeal, must determine as to the regularity of the appeal, as well the manner of bringing up the cause, as the jurisdiction; he was, therefore, clearly in favor of the jurisdiction of this court, and that the cause must proceed.

Rossell, J.

Had no doubt from the beginning of the argument, that the cause ought to be retained in this court.

[*]

Pennington, J.

There can be no doubt, under existing circumstances, of the jurisdiction of this court, or of the propriety of exercising it.

By the Court.

Let the cause proceed.  