Ex parte GROOM

Ex parte GROOM. [APPLICATION FOR MANDAMUS TO CIRCUIT COURT.] X. Transfer of canse from State to Federal court. — The 12th section of the judiciary act of 1789, which makes provision for the transfer of a cause, from the State court in which it originated, into “ the next circuit court-[of the United States] to be held in the district where the suit is pending,” does not authorize the transfer of such cause into the Eederal district court, although that court exercises some of the powers of a circuit court; consequently, where the application asks the removal of a cause into “the next circuit court of the United States to be held for the district where said suit is pending, to-wit, the middle district of the State of Alabama,” and is accompanied by an offer of good security for the defendant’s personal appearance “in the circuit court of the United States to be held for the middle district of the State of Alabama,” the application is properly refused. (Byrd, J., dissenting,¡held the application sufficient.) Application by Benj. B. Groom, for a writ of mandamus to the circuit court of Montgomery, Hon. George Goldthwaite presiding, to compel that court to transfer to the proper Eederal court a cause therein pending, between Erederick H. Cobb as plaintiff, and said Benjamin B. Groom as defendant. The action was cpmmenced by original attachment, on the 20fch November, 1866, and was founded on an alleged deceit in the sale of several mules by the defendant to the plaintiff. The plaintiff was a citizen of Alabama, and the defendant a citizen of Kentucky; and the damages claimed in the suit were eight thousand dollars. The circuit court overruled and refused the application for the removal of the cause, and the petitioner reserved a bill of exceptions to its ruling and decision; and he now applies to this court for a mandamus, requiring the circuit court to transfer the cause as prayed. Watts & Troy, for the motion. Elmore, Keyes & Morrissett, contra. [MAJORITY — A. J. "WALKER, C. J.] A. J. "WALKER, C. J. An application was made for tbe removal of a cause from the circuit court of Montgomery county, into the circuit court of the United States for tbe district where the suit is pending. The application was accompanied by an offer by tbe applicant of “good and sufficient surety for bis entering into tbe circuit court of tbe United States, to be beld for the middle district of the State of Alabama,” &c. Tbis application was madt under tbe 12th section of tbe judiciary act of 1789. Tbat act requires, tbat tbe removal should be made into tbe “ next circuit court to be beld in tbe district where tbe suit is pending.” Tbe removal is required to be made into tbe circuit court, designated eo nomine. Tbe district court of tbe United States is not tbe circuit court, although it may exercise tbe powers of a circuit court; and there is a clear distinction observed in tbe acts of congress, between the circuit courts and tbe district courts, notwithstanding they may exercise some of the powers of tbe circuit court. There is, therefore, no warrant in tbe law for tbe removal of tbis cause into tbe district court of tbe United States for tbe middle districtof Alabama. Tbe fifth circuit of tbe United States is composed of tbe “ districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas.” A circuit court for tbe district of Alabama is beld at Mobile, — a single place within tbe State. There is, therefore, a circuit court for tbe district of tbe State of Alabama. There is no such court as 'a circuit court for tbe middle district of Alabama. The petitioner, in offering to give surety for entering tbe cause in tbe circuit court for tbe middle district of tbe State of Alabama, did not offer to comply with tbe act of congress, which requires tbat be should offer good and sufficient surety for bis entering copies of tbe process, appearing, &c., in tbe circuit court for tbe district of tbe State of Alabama. Tbe present application was properly overruled. If tbe application bad been accompanied with an offer to enter tbe process, appear, &c., in tbe circuit court for tbe district of tbe State of Alabama, it ought to have been granted. Tbe application for a mandamus is refused. [CONCURRENCE — BYRD, J.] BYRD, J. I concur in the opinion of the court, except that I hold that the circuit court of the United States for the State of Alabama includes the middle district of Alabama, and is therefore, in contemplation of law, the circuit court for that district. I think that the application is sufficiently definite for all practical purposes.