
    H. R. W. Hill vs. George W. Henderson.
    A non resident being sued in a state court, for a sum exceeding five hundred dollars, is entitled, under the act of congress, on the performance of the necessary requirements, to have the suit transferred to the next term of the United States circuit court for the district where he was sued ; and on proper application to the state court, it will be error for that court to refuse the transfer.
    Nor will it make any difference if such non resident be sued as executor ; he will still be entitled, on the proper showing, to the removal of his cause to the United States court.
    If the United States court, and the state court wherein such non resident be sued, commence their session on the same day, a fair construction of the act of congress will give the non resident the right to have the transfer made and returned to the next succeeding term of the court.
    In error, from the Rankin circuit court; Hon. John H. Rollins, judge.
    George W. Henderson, at the May term, 1842, of the circuit court of Madison county, sued Henry R. W. Hill, executor of the last will and testament of Francis Tidwell, deceased, on a note alleged to have been made by Tidwell, for $500. The summons was executed on the 21st of February, 1842; on the 28th of February, the defendant, by attorney, plead non assumpsit ; on the 5th day of May, A. D. 1842, the defendant moved the court to transfer the suit from that court to the circuit court of the United States for the southern district of Mississippi at Jackson. On this motion, he read the following petition, which was filed on the 28th day of February, 1842, viz.:
    
      “ To the Hon. John H. Rollins, judge, <Spc.
    
    
      “ The petition of Henry R. W. Hill, who is a citizen of the state of Louisiana, would respectfully show unto your honor, that George W. Henderson, who is a citizen of the state of Mississippi, by writ issued on the 21st day of February, 1842, commenced a suit against your petitioner, as executor de son 
      
      tort of Francis Tidwell, deceased, on a note for the sum of five hundred dollars, executed by the said Tidwell, dated on the 2d day of November, in the year 1838, payable to Thomas J. Moore, one day after date, and by the said Moore indorsed to the said Henderson. And your petitioner states that the sum in controversy, and the matter in dispute between said Henderson and your petitioner, exceeds the sum of five hundred dollars, exclusive of costs. Your petitioner therefore prays that the said cause may be removed for trial to the next circuit court of the United States of the ninth judicial circuit, to be held on the first Monday in May next, at Jackson, in the southern district of Mississippi, the same being the first circuit court of the United States to be held in the district in which the said suit has been commenced.
    
      “ Your petitioner here offers William Yerger and Samuel Yerger as his sureties, who are good and sufficient, that he will, on the first day of the term of the circuit court of the United States aforesaid, enter copies of the proceedings against him as aforesaid, and also that he will then and there appear at said court to defend said cause, which sureties your petitioner prays may be accepted, and no further proceedings had in said cause in this honorable court.
    
      “ And as in duty bound your petitioner will ever pray, &c.
    H. R. W. Hill.”
    The court overruled the motion, and refused to transfer the cause.
    Hill then asked leave to file an amended petition, setting forth that the then term of the Madison circuit court, which was the return term of the writ against him, commenced its session on the same day with the May term of the United States circuit court for that district, which made it impossible to file the copies in that court, as required by the act of congress ; he prayed, therefore, that his petition might be amended so as to insert the “ November term ” of the circuit court of the United States, in lieu of the May term. The circuit court refused to allow the amendment, and Hill excepted.
    
      On the application of Hill, the venue was afterwards changed to Rankin county, where, after a trial, the progress of which it is not deemed necessary to notice, the jury found a verdict for the plaintiff, and judgment was rendered for the sum of $>690 83 and costs of suit, to be levied of the goods and chattels which were of the said Tidwell at the time of his death in the hands of the said defendant remaining to be administered, if so much thereof in his hands to be administered he hath; and if so much in his hands to be administered he hath not, then the damages, costs, and charges aforesaid, to be levied of the proper goods and chattels, lands and tenements, of the said Henry R. W. Hill.
    From this judgment Hill prosecutes this writ of error.
    
      W. Yerger, for plaintiff in error.
    In this case it is contended that the circuit court of Madison county erred in refusing to transfer the suit, upon Hill’s petition, to the federal court at Jackson. The writ was returnable to the May term, 1842, of that court, and on the final day of that court, Hill moved to transfer the cause, upon petition filed. This was error. See act of congress, 1 Story’s Laws of U. S. 57, § 12 ; also Campbell v. Wallen's Lessee, Mar. & Yerg. 266 ; which expressly decides this point, and answers all the arguments of defendant’s counsel.
    The judgment is clearly erroneous, being against Hill as executor, &c. of Tidwell; to be levied of his individual goods, if he has none of Tidwell’s in his hands. See H. & H. 396 ; 2 How. R. 617; 7 Ibid. 125.
    
      Taipley, on the same side.
    Handy, for defendant in error.
    1. The refusal of the court below to remove the cause to the circuit court of the United States cannot be assigned for error here, because, 1st. It does not appear by the bill of exceptions for what reasons that court refused the application for removal. It might have been for the reason that the court was not satisfied that the amount in controversy exceeded the sum of five hundred dollars, exclusive of costs; a matter left entirely to the judgment of the court below, by the act of congress; or it might have been, that the sureties required by the act of congress were not actually offered to the court, when the application for removal was made. In the absence of all facts, this court must presume that the court below acted correctly. 2d. The motion for removal was made in the Madison circuit court, and overruled; afterwards the defendant below moved for a change of venue, and caused the case to be removed to the circuit court of Rankin county, where it was tried upon its merits and determined. He has thereby waived his right of exception to the action of the court on the first motion. His remedy, if he complained of the overruling, was by mandamus, obtained either from the federal court, or from this court, to compel the removal from the circuit court of Madison county to the U. S. circuit court. 1 Cooke, 160; 4 Hen. & Munf. 173, cited in Conk. Tr. 87. Instead of pursuing this course, and standing upon his rights there, he elected to abide by the jurisdiction of the state court, and of his own motion caused the case to be adjudicated in the state court; and after the removal to the Rankin circuit court, he filed the plea of ne unques executor, which presented the only issue in the case, and thereby fully acquiesced in the jurisdiction of the state court. He now asks this court to reverse the final judgment of that court, which, so far as this assignment of error goes, is without error, because the circuit court of Madison county erred in refusing the removal, which was a matter purely incidental, and waived by the defendant’s own motion. Suppose this court reverse the judgment for this reason; is it not too late for the defendant below to remove the case from the state court 1 He has already removed it to another court, which would place it out of the provisions of the act of congress. But even if the removal could take place, the merits of the case have been fully and fairly determined, and the presumption is, that the result in the federal court would be the same as that in the state court; and by causing the case to be tried again, this court would be doing a useless and idle act.
    
      2. As to the form of the judgment. The action was against the plaintiff in error as executor de son tort, to which the only plea was ne tinques executor, the plea of non assumpsit being struck out. Upon this issue, the verdict was for the plaintiff below, and the judgment was de bonis testatoris si; et si non, de bonis propriis. This is the proper judgment in such case. 1 Saund. R. 336, b. note 10, near the conclusion of the note; 2 Will, on Ex. 1409, (2d Am. ed.) ; 7 Cow. 64. Although the declaration is against Hill as executor generally, (which is the proper form, Com. Dig. tit. Administrator, C. 3) yet the indorsement on the writ shows that he was charged as executor de son tort.
    
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

Hill was sued as executor of Tidwell on a promissory note for $500, made by the deceased in his lifetime. At the return term, he pleaded non assumpsit, and presented to the court a petition for the transfer of the cause to the circuit court of the United States. In the petition, he states that he is a citizen of Louisiana, and that the plaintiff Henderson is a citizen of this state; that the sum in controversy exceeds $500, and prayed that the cause might be transferred. He offered surety, as required by the act of congress, for his compliance with the conditions of the law. The refusal to transfer the cause is one of the errors assigned. An objection was also taken to the form of the judgment, it being against the goods and chattels of the testator, if to be had, but if not, then against the proper goods of Hill. The judgment was probably so entered because the suit was against Hill as executor de son tort, or at least it was in that capacity that a recovery was sought.

The act of congress is explicit, that if suit be' commenced in a state court by a citizen of the state in which the suit is brought, against a citizen of another state, for a sum exceeding $500 exclusive of costs, to be made to appear by sufficient showing to the court, 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 to be held in the district where the suit is pending, and offer good 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 if it be necessary; it shall then be the duty of the state court to accept the surety, and proceed no further in the cause; and the copies being entered, the cause proceeds in the United States court, as though it had there been commenced. On a careful examination of the petition, we are unable to perceive even a technical ground for its refusal. It seems to comply with the act of congress in every particular. It contains all the statements prescribed, and was offered at the return term, or indeed before, as it was filed a few days after the service of process, Hill having previously entered his appearance. But- whether the filing was a sufficient presentation or not, is not material, since it was presented to the court at the return term. The amount in controversy was manifest from the papers in the cause. The terms of both courts commenced on the same day, hence it was impossible for Hill to file his papers at that term of the United States court. But that, in truth, was not the next term. If the two courts happen to be in session at the same time, a fair construction of the act of congress entitles the party to have the transfer made and returned to the next succeeding term. Nor was the circumstance that Hill was sued as executor, entitled to any weight. The suit was brought with the view of charging him as executor de son tort. A citizen of one state may be executor in another, and, as such, he will be amenable to the jurisdiction of the probate court; but the courts of the United States have jurisdiction in the case of executors or administrators, even though the court might not have had jurisdiction as to the testator or intestate. Childress v. Emory, 8 Wheat. R. 642. As the act is imperative that the court shall proceed no further, it was error to do so ; the party having made out a clear right to a transfer of the cause, the authority of the state court ceased. It is error in a court to proceed to judgment when the law declares it shall not. A mandamus is not the proper remedy. This identical question was so decided in Tennessee, after an elaborate argument, and we think correctly. Mar. & Yerg. R. 266. It was there insisted that the aggrieved party must resort to a mandamus, but the court decided otherwise.

For this error the judgment, must be reversed, and the cause remanded, with directions that it be transferred to the- circuit court of the United States, on the plaintiff entering into the required bond with sufficient surety.  