
    NEW YORK COMMON PLEAS.
    Samuel Smith, et al. agt. Benjamin F. Butler.
    The act of congress of 1789, providing for the removal of causes from the state to the United States courts, does not apply where both the parties are non-residents of the state.
    
      Special Term,
    December, 1864.
    In this case the plaintiffs charged Gen. Butler with seizing their banking-house, in New Orleans, and appropriating to his own use $60,000 in gold. They obtained an attachment against him, and the general’s counsel moved to remove the cause to the United States courts.
   Carduzo, J.

The twelfth section of the act of congress, passed September 24, 1789, provided that 11 if a suit be commenced in any state court against an alien, or by a citizen of the state in which the suit is brought, against a citizen of another state, it may, if it involve more than five hundred dollars, and certain things be done by the defendant, be removed to the United States court.”

The present motion is based on that act, and as its provisions are seldom invoked, it is not surprising that they are but little understood and very generally misapprehended. The proofs before me establish that the plaintiffs are not citizens of this state. They are citizens of Louisiana, temporarily sojourning here. As, therefore, this suit is brought against a defendant who is a resident of another state, and is not prosecuted by a citizen of this state, the case is. not within the statute, either in form or in spirit. Probably the, object of the statute was to guard against the possibility or the suspicion of bias in the state court in favor of its own citizen against a non-resident, but no such bias could be presumed when the litigation was between non-residents.

The motion must be denied, with ten dollars costs to the plaintiff, to abide the event of the action.  