
    *Brown v. Crippin and Wise.
    
    Monday, 9th October, 1809.
    i.Removal of Causes — From State to Federal Court— Mandamus. — It Is a matter of right in the defendant, who is a non-resident of a State, and is sued in a State Court, to remove the cause to the Circuit Court of the United States, for such State, on complying with the terms prescribed by the act of Congress; and if the inferior Court refuse to allow the removal of the cause, it may be compelled by mandamus, emanating from the Superior Court of the State, not from the Circuit Court of the United States.
    2. Same — Same—Bond and Security. — Bond and security, for complying with the requisitions of the act of Congress, on removing a cause from a State Court, to the Circuit Court of the United States, may be given, though the defendant be not personally present.
    3. Court of Appeals — Certificate of Judgment in Term Time. — The Court of Appeals will direct their clerk to grant a certificate of their judgment, during term time, if it be absolutely necessary to attain the justice of the case.
    This was an appeal from a decision of the Superior Court of Law,() held for the county of Accomack, on the 6th of May, 1809, refusing to grant a mandamus to the County Court of Accomack, commanding that Court to remove a cause to the Circuit Court of the United States, for the District of Virginia, on the ground stated in the petition of the applicant.
    The case was this: Samuel Crippin and John B.. Wise, joint merchants and partners, under the firm of Crippin and Wise, brought an action of trespass against Thomas Brown, for taking and carrying away the good and chattels of the plaintiffs p and laid their damages at ten thousand dollars. On affidavit of one of the partners, that the defendant had taken a schooner of their property, with certain goods on board, and that in the event of a recovery, they would not be able to obtain the effect of their judgment, the defendant not being a resident of this State, a magistrate, by endorsement on the writ, directed bail to be taken, which was accordingly given by the defendant.
    The writ was returnable to the February term, (which in that County is a Court of Quarterly Session,) and at the March Court following, (31st of March, 1809,) the defendant, by his attorney, preferred a petition to the Court, in which he stated that he was a lieutenant in the navy of the United States, and a citizen of the State of Pennsylvania ; that a writ of trespass de bonis captis *et asporlatis, had been issued against him, from the office of the Court of Accomack County, by Samuel Crippin and John IS. Wise, merchants, (which writ is prayed to be taken as part of the petition,) in which damages were laid at ten thousand dollars, and the petitioner held to bail on the execution thereof, by virtue of an endorsement made by a magistrate, grounded on an affidavit which states the petitioner not to be a resident of this State.
    The prayer of the petition was, that the cause might be removed to the next Circuit Court of the United States for the District of Virginia, pursuant to the act of Congress, in that case made and provided; the petitioner further stating, that he was ready, with good and sufficient surety, for his entering in such Court, on the first day of its session, copies of such process against him, and also for his there appearing and entering special bail in the cause, if required.
    The County Court refused to permit the removal of the cause, on two grounds; 1st. “Because it was not shewn to them that the defendant was an alien, or a citizen of a State other than the State of Virginia.” 2dly. ‘ ‘Because the defendant was not personally present to execute a bond, conformable to the 12th section of the act of Congress, entitled ‘An act to establish the Judicial Courts of the United States.’ ”
    The defendant, by his counsel, offered, as proof of the first point, [his being a citizen of another State,] the writ and endorsement thereon, in the cause. He also offered parol proof of the declarations of the defendant, both before and after the issuing of the writ, that he was a native of Philadelphia, in the state of Pennsylvania, and a resident of that city, where his father then resided; and also of like declarations as to the residence of the defendant, from the crew of the gun-boat commanded by him. As to the second point, he tendered certain persons as sureties, acknowledged by the Court to be good and sufficient, but who, the Court said, could “'not be “taken without the defendant was also present to execute the bond in person.”
    At the Superior Court of Haw, for the County of Accomack, held on the 6th of May, 1809, the defendant moved the Judge of that Court for a mandamus to the County Court of Accomack, commanding that Court to remove the cause to the Circuit Court of tne United States, on the above statement of facts appearing in the record. But the Court being of opinion that there was no error in the decision of the County Court, refused to grant the mandamus. Prom which decision an appeal was taken: to this Court.
    Hay, for the appellant.
    1st. The County Court ought to have allowed the prayer of the petition ; the defendant having brought himself within the express terms of the act of Congress, () Neither of the reasons assigned by the Court, for their refusal, are sufficient. As to the fact of non-residence, it was established not only by the plaintiff’s own affidavit, endorsed on the writ, but was proved by other evidence. The objection that the defendant was not personally in Court to join in the bond, has no weight; for neither the words nor the policy of the act require his presence, and all the purposes of the law may be attained without it; as by a bond executed by others, or by a deed of trust, or a deposit of money, &c. Besides, it might be highly inconvenient to require the presence of the party ; because, being a resident of another State, he would be compelled to wait till the meeting of the Court, however distant it might be from the time of serving the writ. But the language of the 12th section of the judicial act of Congress, differs from that formerly used in our statute, which required the party to enter into bond. This law, however, having been found inconvenient, it was provided that bonds for prosecuting appeals, writs of error, super-sedeas, certiorari, or any other cause, may be “'given by any responsible person and security, though not a party, ()
    2d. This provision for removing a cause from a State Court, where a non-resident is a party, is a wise one, calculated to avoid the effect of those prejudices which too often exist; and which have been manifested by the refusal of the Court, in the present case. It is a privilege, a right, which the law gives, and, in withholding it, the Court erred. The only way in which the error of the County Court could be corrected, was by mandamus. A writ of error or supersedeas would not lie, because they are only grantable after final judgment, () Nor would an appeal have been the proper remedy; because it comes within the meaning of the law relating to writs of error and supersedeas. An appeal will only lie from the judgment or sentence of a Court ;() that is, from that which decides the cause: otherwise, there might be an appeal from a decision on an incidental point; as on a motion for a continuance, or for admitting a deposition to be read. But an appeal, if granted, would not have answered the purpose. Nothing but the record of the motion would have gone up. In the mean time the suit would have progressed, and the cause have been tried. If the Court above had decided, on an appeal, that the County Court did wrong, it could have reversed the opinion of that Court; but could have done nothing more. It might have said that the party was entitled to the privilege of removing his cause, but it would still have remained in the County Court. There was no mode by which the judgment of the Superior Court could be enforced but by mandamus, ()
    It has been suggested, that this process should have been applied for to the Federal Court, and not to a State Court, under the 14th section of the judicial act. The Courts of the United States are authorized to issue “all writs not specially provided for by the statute, which' *may be necessary for the exercise of their respective jurisdictions.” But the Circuit Court of the United States had no jurisdiction till the cause was brought before it. When a juridiction has attached in a Federal Court, it may be maintained; but it cannot be acquired in that way. The consequences of such a clashing of jurisdictions between the State and Federal Courts would produce an eternal state of hostility. It never was contemplated that a Federal Court should issue process, commanding a State Court to do any act. It must be presumed, that all the Courts will do their duty, and act within the sphere of their own jurisdictions; and if an inferior Court refuse to exercise its proper functions, it is the duty of a superior Court to compel it. Again, the thirteenth section of the judicial act specially provides for issuing writs of mandamus; but they can only be directed to persons holding office under the United States; and this power is expressly confined to the Supreme Court.
    No counsel appeared for the appellees.
    
      
      For monographic note on "Removal of Causes,” see end of case.
    
    
      
      Removal of Causes — Mandamus from Federal to State Court — As to the point that the United States court will not issue a mandamus to compel the removal of a cause from a state court, see the principal case cited in Ladd v. Tudor, 14 Fed. Cas. 936; Fisk v. Union Pac. R. Co., 9 Fed. Gas. 162; In re Blake, 20 Sup. Ct. Rep. 44, 175 U. S. 114.
      In Ladd v. Tudor, 14 Fed. Cas. 926, it was said: “Brown v. Crippin, 4 Hen. & M. 173, * * * seems on examination, to be a case of a mandamus from the highest state court to the common pleas in the same-state, to remove such a case, and not one from a court of the United States. And though the marginal note says a mandamus would lie from the circuit court, no such opinion is seen to have-been there given. It is only suggested, whether a writ of certiorari might not lie from the circuit court. On the contrary, the counsel strenuously contended that no mandamus would lie from the circuit court, and that the latter has no jurisdiction over the case until it actually came there. See 4 Hen. & M. 178 179.”
      Same — flandamus from Circuit to County Court.— And that a mandamus will lie from the circuit court to the justices of the county court, both as members of the court and individually in pais, see the principal case cited in Ex parte Morris, 11 Gratt. 297.
      Same — Removal from Circuit to Corporation Court-Mandamus. — That mandamus is the only remedy for a refusal of the judge of a corporation court to remove a causejpending therein, to the circuit court, of the corporation, as required by statute, see the principal case cited in Town of Danville v. Blackwell. Judge, 80 Va. 42. See the principal case-further cited and approved in Richardson v. Farrar, 88 Va. 767, 15 S. E. Rep. 117; Page v. Clopton, 30 Gratt. 418.
    
    
      
      Same — Removal from State to Federal Court — Bond' and Security. — where a petition is filed in a state court praying the removal of a case from such court to the circuit court of the United States, under section 639, of the Revised Statutes of the United States, the state court oughtnot to receive the bond offered by the petitioner, unless the condition of' the bond contains the material parts required by that section. Henen v. Baltimore, etc., R. R. Co.. 17 W. Va. 881; Bell v. Bell, 3 W. Va. 183. See generally, monographic note on “Mandamus” appended to Dawson v. Thruston, 2 Hen. & M. 132.
    
    
      
       See monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      (l) By an act of the General Assembly, which took effect on the first of January, 1809, a Superior Court of Law is to be held by one Judge, in each County, in lieu of, and possessing the jurisdiction of the District Courts, formerly established.. — Note in. Original Edition.
    
    
      
      (a) See L. U. S. vol. 1, p. 56, s. 12.
    
    
      
      Cb) See 1 Rev. Code, p. 82, s. B8.
    
    
      
      (c) 1 Rev. Code, p. 82, s. 61.
    
    
      
      
        (a) Ibid. s. B3.
    
    
      
      (a) 3 Bl. Com. 110.
    
   JUDGE) TUCKER.

The appellant, a citizen of Pennsylvania, being sued by the appellees in an action of trespass, in the County Court of Accomac, was held to bail in that Court by order of a Justice of that County, founded upon an affidavit made by Crippin, one of the plaintiffs in that suit, stating, that Brown was not a resident of this State, and was about to depart the same. At the succeeding Court, Brown preferred a petition to the Court for the removal of the suit to the next Circuit Court of the United States, to be holden for this district, wherein he styles himself a citizen of Pennsylvania, and refers to the writ and order of bail, and offered to give security as required by the act of the first-Congress, 1 sess. c. 20, s. 12, which the Court refused; first, because it was not shewn to them that the defendant was an alien, or a citizen of any other State; and, secondly, because the defendant was not personally *present to execute a bond, conformably to the 12th section of the act of Congress. Afterwards, application was made to the Superior Court of Accomac County, to award a mandamus to the County Court, commanding them to remove the cause, which was also refused; and from that decision there is an appeal to this Court.

By the act of Congress above mentioned, 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, and the matter in dispute, exclusive of cost, exceeds 500 dollars, and the defendant shall, at the time of entering his appearance, file a petition for the removal of the cause into the next Circuit Court of the United States, to be held in the District, and offer good and sufficient surety for his entering in such Court, on the first day of its session, copies of the process against him, and also for his there appearing and entering bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the State Court to accept the security, and proceed no further in the cause.

The removal of the cause in such a case is a matter of right which ought not to be refused to any defendant, who makes out his case, and complies with the terms of the law. The order for bail endorsed on the writ, obtained on the application and oath of one of the plaintiffs, and stating that the defendant was not a native of this State, superseded the necessity of any proof of that fact to the Court, on the part of the defendant. The security offered was admitted by the Court to be good and sufficient, and ought to have been accepted. The law does not prescribe that a bond shall be taken. A person taken upon a writ of capias ad respondendum may be in close custody; and while the superior Courts of this State had jurisdiction over several, and often very remote Counties, it might have been impossible to bring the defendant before the Court during the term, to give bond in the presence of the *Court. In such case, the wise provision of the act of Congress would in ninety-nine cases out of a hundred be defeated. A stipulation in nature of a recognisance taken in Court, (as is every day’s practice in entering special bail in the County Courts,) would have answered every purpose of the law. Both reasons for refusing the prayer of the petition were, therefore, utterly without foundation,, And the refusal of the mandamus by the superior Court, appears to me to be equally against right. A mandamus is a writ of right in every case where it is the proper remedy. Being of opinion that the County Court refused to perform a duty which was enjoined by law, a mandamus, at that stage of the cause, was the only remedy. The defendant could neither appeal, nor obtain a writ of error, or of supersedeas, until the final decision of the suit, when it might be too late. I do not know that a writ of certiorari would lie from the Circuit Court of the United States to a County Court, to remove a cause under such circumstances. But of this I have no doubt, that neither the Constitution of the United States, nor any act of Congress, does, or can, (so long as the twelfth article of the amendments to the Constitution of the United States .remains in force,) deprive the superior Courts of this Commonwealth of that control over the proceedings of the inferior Courts, which the laws of this country give to them. I have therefore no doubt of the right of the Superior Court - of Accomac to grant the mandamus, nor that it erred in refusing it. I am therefore of opinion, that the judgment be reversed, and the cause sent back with directions to that Court to award the writ of mandamus.

JUDGE ROANE

concurred, as to the judgment agreed to be entered. He said he thought it a very plain case.

JUDGE FEEMING

said it was the unanimous opinion of the Court, that the judgment of the Superior Court of Law, for Accomac County, be reversed.

(Judgment of the Superior Court of Law, for Accomac County, reversed, with costs; and ordered, that a mandamus be awarded to the Justices of the County Court of Accomac, commanding thern to grant the prayer of the appellant’s petition for the removal of the suit into the Circuit Court of the United States, held in Richmond, upon his offering good and sufficient surety for his entering in such Court, on the first day of its session, copies of the process against him, and also for his there appearing, and entering special bail in the cause; which surety it is the duty of the said County Court to accept, although the appellant himself may not be personally present."

On the suggestion of Mr. Hay, that the effect of the above judgment might be lost if it were not certified before the rising of the Court, inasmuch as the County Court of Accomac might proceed to the trial of the cause, the clerk was directed to furnish a certificate instanter.  