4 · FEDERAL REPORTER.
. full and final determination was denied. After due consideration, this
, court sustained the positions of defendant, and held that the motion to
remand could not then be entertained; and the first question presented
is whether the case now stands in any different shape than at that time.
The next regular term of this court commenced on the third Monday of
October, and at that time the defendant, by the terms of its bond, was
to have the record filed in this court. Before that date an act of con- •
gress took eifect, changing the time of the fall term from the third Mon-
·day of October to the iirst Monday of September. This act was not
passed until about the middle of September; too late for a regular Sep-
tember term this fall, and yet without any saving clause as to this year’s
October term." * Hence a regular term became impossible. Under sec-
tions 669 and 670 of the Revised Statutes, a special session was called
for the fourth Monday of October. By the provisions of these sections
any business which could be transacted at a regular term could be trans-
acted at this special term, and the act changing the terms provided in its
second section as follows:
"Al1 process issued from the olerk’s office of said courts when the act takes
effect shall be taken and considered as returnable to the next term or terms
hereby established in lieu of the term or terms existing at the time such pro-
cess was issued." -
While this, in terms, refers to process issued from the olerk’s ofiice,
‘ and may not in the letter apply to removal proceedings, yet in spirit it
does. The September term was in lieu of the October term. The re-
moval proceedings were commenced in August, and that was before the
time fixed for a September term. Of course no subsisting and substan-
tial right of either plaintiif or defendant can be destroyed by a mere `
change in the time of a term; but it will be sacrihcing substance to form,
and upholding the letter as against the spirit, to refuse to consider the
case fully before the court at this special term, and to defer till next spring
_ the consideration of the motion to remand. We therefore hold, the rec-
ord having been filed in this court for some months, and a special term
being held at which all business transactable at a regular term may be
transacted, and the September term being in lieu of the October term`,
and both of these terms being after the commencement of the removal
proceedings, that the case is fully before us, and that it is our duty to
entertain and determine this motion to remand.
The second question is whether the proceeding was removable from
the state court at the time the removal proceedings were had, and this
depends upon the question whether the proceeding was then a suit of a
civil nature at law or in equity, within the purview of the removal acts.
This question might have been one of considerable ditiioulty but for the
ruling of the supreme court in the case of Scart v. School-Dist., 124 U. S.
197, 8 Sup. Ct. Rep. 460, which seems to settle the question adversely
to the plaintiff. A A
` The remaining question, and the one ofthe most diiiiculty, is this:
It appears that both plaintiff and defendant are non-residents of this dis-
trict. It is clear that under the act of March 3, 1887, the plaintiff could