
    Arthur L. Campbell vs. John Wallen’s lessee.
    
      it is not necessary, that the petition filed under the provisions of the act of con* greis, to remove a suit from a state court to a United States’ court, should make atender of the security required by the act upon the removal of the cause; such security may be given after it is judicially determined, that the facts disclosed by the petition, are insufficient to authorize its transfer.
    An appeal, in the nature of a writ of error, will lie, to correct the decision of a circuit court, improperly refusing to remove acause to the circuit court of the United States.
    This was an action of ejectment, brought by the defendant in error, against Isaac Sawyers, Richard Hudnall and George Poff.
    The capias ad respondendum issued on the fourth day of November, 1819, from the circuit court of Claiborne county, and was returned executed at the succeeding April term, 1820, of said court; at which term it was continued. í At the October term following, Arthur L. Campbell was admitted to defend, in the room of the original defendants; he entered his appearance at said last mentioned term, and filed the following petition for a removal of the cause to the circuit court of the United States for the district of East Tennessee; which petition was sworn to in open court.
    “State of Tennessee,) To the honorable Edward Scott, Claiborne county.} judge, &c.
    “The petition of Arthur L. Campbell, respectfully represents to your honor, that heretofore, to wit, at the last term of this court, J ohn Wallen, a citizen of the county and state aforesaid, instituted an action of ejectment against Isaac Sawyers and others, who live on a tract of land, situate in the county aforesaid, and in whose stead he is admitted to defend; that said tract of land was granted by the state of Virginia, by patent dated the first day of August, 1787, to John Jones, who conveyed the same to Arthur Campbell, deceased, and said Arthur, before his decease, conveyed the same to James H. Campbell; that said tract of land, granted as aforesaid, was sold by the sheriff of Claiborne county, as the property of said James H. Campbell, at which sale your petitioner became the purchaser, and has, therefore, a deed from the sheriff of said county.
    Your petitioner further shows, that he is a citizen of the county of Jefferson and state of Kentucky, and was so at the commencement of this suit; and in consequence of his grant and residence, as above stated, he conceives himself entitled to have the suit transferred, for trial, to the circuit court of the United States for the seventh circuit, and district of East Tennessee, at Knoxville. He, therefore, prays, that said suit be transferred to the circuit court of the United States, at Knoxville, to be there finally tried and determined. He states, that the land, for which the suit is brought, is of a greater value than five hundred dollars, and he prays that said John .Wallen may be required to show his grant, and to declare, whether he does not claim said land under a grant from North Carolina.”
    The cause was continued until April term, 1821, at which term the court refused to transfer said cause for trial to the circuit court of the United States, being of opinion, that the petition did not make out a case within the provisions of the act.
    At the April term, 1823, the cause was finally tried, and the jury returned a verdict of guilty against the defendant; upon which verdict judgment was entered, that the plaintiff recover, &c.; from which judgment an appeal, in the nature of a writ of error, is prosecuted to this court.
    
      T. L. Williams for the plaintiff in error.
    
      McKinney for defendant in error.
   Crabb, J.

delivered the opinion of the court. The plaintiff in error alleges, that the court below erred in refusing to remove this suit, on his application, to the circuit court of the United States. It is said in argument for the defendant in error, that the court properly rejected the application, because it was not made by the now plaintiff, at the time of entering his appearance. Were the fact as supposed, it would be conclusive in favor'of the course pursued by the circuit court. But upon inspection of the record, we perceive, that at October term, 1820, Campbell first appeared in the circuit court, and at the same term he presented his petition for the removal of the suit.

The facts necessary to entitle him to the removal, were substantially set out in the petition — that he was a citizen of the state of Kentucky, that the matter in dispute exceeded the value of five hundred dollars, &c.

It is objected, that no offer to give the prescribed securh ty, is contained in the petition. We are of opinion, that the petition need not contain the offer. The act of congress requires, that security shall be given by the applicant, for his entering in the United States’ court, on the first day of its session, copies of the process against him, and for his appearing there, entering bail, &c. But this security need not be given, nor an offer of it made, until it shall have been judicially decided, that upon the facts set out in the petition, as it respects citizenship, value of the matter in dispute, &c., the applicant is entitled to a removal. The giving of security, is, in its nature, an act subsequent to the decision on the petition; and we cannot presume, that this security would not have been given, if the decision of the court had been in favor of the privilege asked by the petitioner, as in our opinion it should have been.

But it is also contended, that even if the circuit court-erred in rejecting the application, the error cannot be corrected by an appeal; that the state courts, in removing a cause to the court of the United States, act merely in a ministerial capacity; and if they improperly refuse to remove, the proper remedy is a writ of mandamus from a superior court. To support this position, we have been referred to the case of Kennedy vs. Woodfolk, (1 Tenn. Rep. 453, and Cook’s Rep. 160.)

Giving no opinion, whether a mandamus might be issued by a superior court, having the power to use such a writ, to compel an inferior court to remove a cause to an United States’court, we are satisfied that this court possesses the power to revise the proceedings of the circuit court, with regard to such matter, upon appeal in the nature of a writ of error.

Appeals lie to this court, to reverse or affirm any judgment, decision or decree of the circuit court. (Act of 1809, ch. 49, sec. 26,27.) It cannot be obtained, certainly, until final judgment below; but when obtained, this court will review all material decisions made in the progress of the cause; and if any such decision was erroneous, and prejudicial to one of the parties, that decision should be reversed, and all its consequences obviated. In this case, the court below decided erroneously, that (he facts and circumstances exhibited to it, by the applicant, did not entitle him to a removal of his cause. This was a mistaken exercise of judgment — an error in the performance of a judicial act. The decision being erroneous, all further proceedings in a circuit court, from which the cause should have been removed, were erroneous also, and ought to be set aside.

The court duly estimate the inconveniences, enumerated in the written argument of the counsel for the defendant in error, which might often result in practice, from a reversal of judgments below, on account of errors committed in the incipient steps of a cause. The same difficulties, however, would be found, more or less, to exist in all cases, where decrees or decisions are made of an interlocutory nature. True, it is a great inconvenience, that the cause should have remained for several years after the removal was refused; that time should elapse, and costs accumulate, and that after all, the judgment, and all previous proceedings, should be rendered inoperative and useless, on account of an error committed in the early stages. But,, we repeat, the same inconvenience occurs in cases of new trials' improperly granted — demurrers illegally overruled, &c. The remedy, if one is practicable, is not with this department of the government. It may not be amiss to remark, also, that if the plaintiff cannot he relieved in this-mode, he is probably without redress. The-powers of this court, being principally, if not exclusively, of an appellate character, it may be at least doubted, whether it could issue a mandamus to the circuit court, for the purpose in ques* tion. And we are far from being satisfied, that the United States’ courts can legally issue such a writ, notwithstanding it seems to have been done, in a single instance, by the worthy judge of this district. Upon the latter questions, however, we give no opinion.

Let the judgment of the circuit court be reversed, and all proceedings, subsequent to the application for removal, set aside; and this court, proceeding to decide as the court below should have decided, direct, that this suit he removed to the circuit court of the United States, for the seventh circuit, in the district of East Tennessee, upon bond and sufficient security being given, during the present term of the court.

Judgment reversed.  