Page:Federal Reporter, 1st Series, Volume 8.djvu/679

 ■wooLBiDGE V. m'kbnna. 665 �we acquire jurisdiction in that sense by the same process as the state court acquires it. The petition and bond for removal in the state court arrest the proceedings there, and, by law, the parties and their controversy are transferred here without any writ or other process ike the common-la'W writ of error; and it is a mistake, in my judg- ment, to suppose that the jurisdiction is to be subjected to the same technical rules as apply to that writ, or to treat the filing of the transcript as equivalent to it. It is immaterial what may be the status of the case between filing the petition in the state court and the filing of the transcript here. Dill. Eem. (2d Ed.) §§ 80-81. It may be in a defective state while thus in transitu, so that we cannot proceed here without a transcript; but I do not think it follows from this that the filing of the transcript is a condition precedent to be 80 strictly performed at the very day that unless so done we are deprived of all jurisdiction. Even in the strict practice pertaining to a -writ of error there are certain dispensations indulged to prevent a failure of justice. Phil. Prac. (2d Ed.) 21e, 215; 222; H. 136. And although the writ is strictly returnable to the first day of the term, it may be filed during the term, and is good unless dismissed because not filed according to the rules; and this resuit is reached, for purposes of convenience and justice, by treating the whole term as one day, and that the first day, which fiction of the common law might as well be adopted to save the right of removal. Ins. Co. v. Mordecai 21 How. 195, 201. �It may be said that by a like construction of another clause in the same section of this statute the time for filing the petition and bond in the state court may be enlarged, which is not permissible. Glbsoii v. Johnson, Pet. 44. But the distinction is obvious; for the intention is there manifest that the petition must be filed before trial actually commenced, and before or at the term at whieh the cause eould be first tried, and not after. The phraseology necessarily shows that this provision of the statute is imperative, because it is not prescribing a precise time within which a thing must be done, but a particular condition or status of the case which will entitle it to be done at all. There is not here a direction for filing a petition within a certain time, so much as a description of the class of cases in which a re- mo^ml may be had. The idea of time is not the leading one, nor of the nature or essence of the particular subject, for it may be varia- ble according to many circumstances; but the reference to time is only for the purpose of describing the status of the case that is to be removed. It is not so in the matterof filing the transcript; and the ��� �