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THE 


HISTORY 


A    SUIT   AT  LAW, 


ACCORDING     TO     THE 


PRACTICE  OF  THIS  STATE. 


WITH  A  SKETCH  OF  THE  PRACTICE  IN  THE  COURTS  OF  THE  UNITED 
STATES  FOR  SOUTH  CAROLINA. 


U  Y 

J  A  M  E  S    CO  N N  B R , 

<  H'  the  Charleston  Bar. 


d>M 


SECOND      EDITION 


CHARLESTON,  S.  C. : 

S.    G.    COURTENAY,    No.    9    BROAD    STREET. 
McCARTER  &  DAWSON,  116  MEETING  STREET. 

1860. 

AW 


3-D  ^1 


CHARLESTON  : 

EVANS    &    COGSWELL,    PRINTERS, 

NO.   3   BROAD  STREET. 


PREFACE   TO   FIRST   EDITION. 


This  slight  sketch  of  the  practice  of  the  State  is  not 
published  with  the  expectation  that  it  can  be  of  any  value 
to  the  active  members  of  the  profession.  It  does  not  aspire 
to  such  dignity ;  but  is  addressed  solely  to  the  students  at 
law,  in  the  hope  that  it  may  furnish  to  them  some  assistance 
in  ascertaining  what  is  the  practice  of  the  Court,  and  what 
the   authority   for   it. 

Charleston,  December,  1856. 


PREFACE  TO   SECOND  EDITION. 


The  kind  welcome  extended  by  the  profession  to  this  little 
work,  soon  exhausted  the  first  edition,  and  a  second  has,  for 
some  time  past,  been  desired. 

In  preparing  it  I  have  noted  such  points  as  have  been  sug- 
gested by  the  recent  reports,  and  have  added,  at  the  request  of 
many  of  the  Bar,  a  sketch  of  the  practice  on  the  Common  Law 
side  of  the  Courts  of  the  United  States. 

The  nature  and  constitution  of  the  United  States  Courts 
require  the  practice  of  those  Courts,  in  each  State,  to  conform 
to  that  adopted  by  the  State  Courts,  and  this  diversity  of  prac- 
tice is  possibly  the  reason  why  no  general  treatise  on  the  sub- 
ject has  been  published.  Some  guide  to  the  practice  has, 
however,  been  eagerly  desired  by  many  of  the  Bar  in  this 
State,  and  as  the  laws  defining  the  jurisdiction  of  the  Court 
and  regulating  its  proceedings,  are  contained  in  the  Acts  of 
Congress  and  Decisions  of  the  Courts  of  the  United  States, 
comprising  many  volumes,  not  accessible  to  the  majority  of 
the  profession,  I  have  added  a  chapter  on  the  progress  of  a 
suit  at  law  in  the  United  States  Court.  In  doing  so,  I  have 
adhered  strictly  to  the  original  plan  of  the  work,  which  is,  to 
furnish  an  elementary  guide  to  the  student,  rather  than  a 
manual  of  practice  for  the  lawyer. 

With  a  deep  sense  of  the  kindness  which  has  been  so  freely 
extended  to  me  by  my  professional  brethren,  I  again  submit 
myself  to  their  good  will. 

J.  C. 

Charleston,  October  20th,  1860. 


THE  HISTORY  OF  A  SUIT  AT  LAW. 


The  first  step  in  the  commencement  of  an  action  at  law, 
is  to  bring  the  defendant  into  Court,  to  answer  the  charge 
made  against  him  by  the  plaintiff;  this  is  effected  by  the 
writ,  technically  styled  capias  ad  respondendum.  The  origi- 
nal writ,  according  to  the  English  practice,  does  not  exist 
with  us,  but  by  our  adoption  of  much  of  that  practice,  the 
capias  ml  respondendum  still  retains  its  appellation  of  mesne 
process,  although  in  fact  it  is  the  original  writ.  The  form 
of  the  writ  is  familiar  to  all,  and  I  shall  only  note  here 
some  few  matters  touching  the  proper  method  of  filling  up 
the  blanks,  and  the  direction  to  be  given  to  the  writ  when 
properly  filled  out. 

The  writ  is  addressed  to  u  All  and  singular  the  Sheriffs  of 
the  said  State;"  for  the  process  of  the  Superior  Court  of  the 
State  runs  to  every  part  of  the  State,a  and  the  Clerk  of  the 
Court  of  one  district,  may  test  a  writ  returnable  to  the 
Court  of  any  other  district.b  The  writ  must,  however,  be 
served  by  the  Sheriff  of  the  district  where  the  defendant  is 
found  or  resides  ;c  and  where  there  are  two  or  more  defend- 
ants to  the  same  action,  and  each  residing  in  different  dis- 
tricts, the  writ  may  be  made  returnable  to  the  Court  of  the 
district  in  which  any  one  of  the  defendants  resides,  and  the 
defendants  are  bound  to  appear  where  the  writ  is  made 
returnable,  and  where  the  notice  endorsed  on  the  writ 
requires  them  to  appear.*1 

aAct  of  1789,  7  Stat,  254;  1799,  7  Stat.,  293. 

b  Douglass  vs.  Owens,  5  Rich.,  534. 

••■  Act  of  1768,  7  Stat.,  200  ;  Wood  vs.  Crosby,  2  Hill,  520. 

a  Wallace  vs.  Prince,  3  Rich.,  17S. 


8 

The  manner  of  serving  the  writ  upon  the  defendant, 
technically  called  the  service  of  the  writ,  is  prescribed  by 
the  Act  of  1737,  (7  Stat.,  190,)  and  is  either  by  serving  a 
copy  personally  upon  the  defendant,  or  by  leaving  a  copy 
at  the  defendant's  usual  place  of  abode.  Questions  some- 
times arise  as  to  which  is  the  defendant's  usual  place  of 
abode.  In  Gadsden  ads.  Johnson,  1  K  &  McC,  89,  the 
defendant  resided  in  Charleston  during  the  summer,  and  in 
the  country  during  the  winter ;  a  copy  writ  was  left  at  his 
Charleston  residence  in  the  winter,  and  the  Court  held  the 
service  insufficient,  as  the  copy  was  not  left  at  his  usual 
place  of  abode  ;  but  when  the  defendant  has  his  residence 
in  the  State,  and  has  merely  left  the  State  temporarily,  ser- 
vice by  copy  left  at  his  residence,  is  sufficient,  unless  the 
defendant  will  come  into  Court  and  make  affidavit  that  he 
was  surprised,  or  is  in  danger  of  suffering  injury  from  not 
knowing  of  the  service  of  the  writ.a  The  Act  of  1737,  fur- 
ther prescribes  that  where  the  service  is  by  copy  left,  the 
copy  shall  be  delivered  to  some  white  person,  if  there  is 
any  such  to  be  found  at  defendant's  place  of  residence,  and 
if  not,  the  copy  is  to  be  left  at  some  obvious  part  of  the 
house.  Under  this  clause  of  the  Act,  the  Court  held  that  a 
copy  delivered  to  a  negro  in  the  piazza  of  the  defendant's 
house  was  a  sufficient  service.b 

Where  the  action  is  against  husband  and  wife,  service  of 
the  writ  on  the  husband  alone  is  sufficient.0  If  against  a 
corporation,  the  service  must  be  upon  the  officers  of  the 
corporation,  usually  upon  the  President. d  If  against  a  firm, 
and  one  or  more  of  the  copartners  are  out  of  the  State,  or 
there  are  dormant  partners,  it  is  sufficient  to  serve  process 
upon  such  of  the  copartners  as  may  be  found  in  the  State, 
or  are  known.6     In  preparing  the  writ,  care  must  be  taken 


a  Lark  vs.  Chappell,  1  McC,  566;  Frean  ads.  Cruikshanks,  3  McC,  84  ;   Bank  vs. 
Simpson,  2  McM.,  354. 
b  Alston  ads.  Bowers,  1  N.  &  McC,  458. 
cMcCullough  vs.  Boyce,  1  Bail.,  521. 
d  Young  vs.  Bank  of  Hamburg,  Dudley,  37. 
e  Act  of  1792,  7  Stat.,  281  ;  Bank  vs.  Broadfoot,  4  McC,  30. 


that  there  is  a  separate  copy  writ  for  each  of  the  copartners 
constituting  the  firm. 

Where  there  are  several  parties  to  a  contract,  they  must 
all,  according  to  a  strict  rule  of  pleading,  be  made  defend- 
ants, and  the  absence  of  any  one  of  them  from  the  State,  so 
that  process  could  not  be  served  on  him,  would  defeat  the 
plaintiff's  action  ;  to  avoid  this,  the  Act  of  1823,  (6  Stat., 
212,)  enables  the  plaintiff  to  sue  all  the  parties  remaining 
in  the  State — the  plaintiff  setting  forth  in  his  declaration, 
and  proving  at  the  trial,  the  absence  of  the  party  omitted. 
The  judgment  in  such  case,  however,  is  valid  only  against 
the  parties  served  with  process.* 

The  writ  must  be  served  at  least  fifteen  days  before  the 
sitting  of  the  Court.  2  Treadway,  631.  In  serving  it,  it 
is  not  necessary  that  the  Sheriff  have  with  him  the  original 
writ,b  nor  that  the  writ  should  have  been  filled  out  before  it 
was  tested  by  the  Clerk.  Nor  that  it  should  have  been 
entered  in  the  Sheriff's  book.  If  properly  filled  out  when 
delivered  to  the  Sheriff,  the  service  of  it  is  valid.0 

Having  shown  the  mode  and  maimer  of  serving  the  writ, 
we  come  to  the  next  clause:  "  You  and  each  of  you  are 
hereby  commanded,"  the  blank  immediately  following  the 
command,  remains  unfilled,  if  it  is  an  original  process.  If, 
however,  a  writ  in  the  same  cause  had  been  issued  to  a  pre- 
ceding term  of  the  Court,  and  the  Sheriff  had  returned 
upon  it  non  est  inventus,  and  a  second  writ,  technically  called 
an  alias,  had  to  issue,  the  blank  is  filled  with  the  words  : 
"  as  you  have  once  already  been  commanded,"  if  the  alias  writ 
is  returned  non  est  inventus,  and  yet  another  writ  technically 
called  a  pluries,  is  to  issue,  the  blank  is  filled  with  the 
words  :  "as  you  have  more  than  once  already  been  commanded," 
and  the  alias  or  pluries  process  may  be  tested  on  any  day 
previous  to  the  return  day  thereof.*1  See  further  as  to  alias 
writs,  Wilder  vs.  Grimke,  2  Brev.,  261.  Parker  vs.  Gray- 
son, 1  K  &  McC,  171,  and  Boggs  vs.  Symmes,  8  Rich.,  443. 


a  See  the  Act,  6  Stat.,  212.  c  Miller  vs.  Hall,  2  Spear,  3. 

b  Wallace  vs.  Prince,  3  Rich.,  178.  d  Moses  vs.  Blackwell,  9  Rich.,  42. 


10 

The  next  blank  is  filled  with  the  words,  "  to  attach  the 

body  of ,"  (the  defendant);  and  care  must  be  taken  to 

set  forth  in  full,  the  Christian  as  well  as  the  surname  of 
defendant,  otherwise  defendant  may  plead  in  abatement. 
The  mere  initial  letters  of  the  Christian  name  are  insuffi- 
cient.'1 The  middle  name,  if  there  be  one,  may  be  set  out 
by  the  initial  letter,  for  in  law  a  middle  name  is  no  name.b 
If  the  liability  of  the  defendant  arises  from  a  written  agree- 
ment, he  may  be  sued  by  the  name  he  signs  to  the  con- 
tract, as  his  signature  would  conclude  him  from  denying 
that  it  was  his  true  name.0  If  the  action  is  against  a 
copartnership,  set  forth  the  full  names  of  the  several  parties 
composing  the  firm.  If  against  a  corporation,  or  parties 
defending  in  autre  droit,  as  executors  or  administrators,  in 
lieu  of  the  words,  "to  attach  the  body  of,"  the  blank  is 
filled  out,  "  to  summon,  &c."  Setting  forth  the  name  by 
which  the  company  is  incorporated,  for  a  corporation  can- 
not be  attached,  and  can  only  be  made  a  party  to  a  suit  by 
summons  and  distringas.*  And  whilst  upon  this  part  of  the 
process,  it  may  be  well  to  take  a  glance  at  the  persons 
who  may  be  attached,  or  rather  at  the  persons  who  are 
exempt  from  being  attached.  They  are  embraced  in  three 
classes : 

1.  Persons  engaged  in  military  duty  under  authority  of 
the  State. 

2.  Persons  attending  Court  as  parties  or  witnesses. 

3.  Members  of  the  Legislature. 

Militia  men  and  parties  attending  Court  are  exempt  by 
the  12th  section  of  the  Act  of  1839,  which  provides  that 
"  no  Sheriff  shall  arrest  by  any  process,  other  than  such  as 
may  issue  for  treason,  felony,  or  misdemeanor,  any  person 
who  is  engaged  in  the  military  service  required  by  the  laws 
of  this  State,  or  going  to,  or  returning  from  the  same,  or 


MVilthaus   vs.  Ludecus,  5  Rich..    326;    Kinloch   vs.   Carsten,    Ibid,   331;    City 
Council  vs.  King,  4  McC,  487. 

bBull  vs.  Franklin,  2  Spear,  47,  and  see  Norris  vs.  Graves,  4  Strob.,  33. 

cNorris  vs.  Graves.  4  Strob.,  33. 

d  Glaize  vs.  So.  Ca.  R.  R.  Co.,  1  Strob.,  72. 


11 

who  may  be  attending  upon  any  Court  of  record  as  party, 
witness,  or  otherwise,  by  order  of  Court,  or  while  going  to 
or  returning  from  the  same,  provided  that  any  party  may  be 
served  with  process  at  any  time  by  delivery  of  a  copy  per- 
sonally, or  leaving  the  same  at  the  most  notorious  place  of 
residence."*  11  Stat.,  28.  These  two  classes  it  is  thus 
seen,  are  only  privileged  from  arrest,  not  from  suit. 

A  greater  exemption  is  accorded  to  members  of  the 
Legislature,  who  cannot  in  any  manner  be  sued,  during 
their  attendance  in  the  Legislature,  or  for  ten  days  previous 
and  subsequent  thereto.  §  14,  art.  1,  of  the  constitution, 
and  Tillinghast  vs.  Carr,  4  McC,  152. 

*  After  specifying  the  persons  upon  whom  it  is  the  duty  of 
the  Sheriff  to  serve  process,  the  writ  proceeds  to  specify  the 
purpose  for  which  they  are  to  be  brought  into  Court,  viz : 
"to  answer  to  the  plaintiff,  (stating  the  full  name  of  the 
plaintiff  in  the  same  manner  as  above  prescribed  for 
defendant,)  in  a  plea,"  &c,  according  to  the  form  of  the 
action. 

The  form  in  the  conclusion  of  the  writ,  "  Witness,  A.  B., 
Clerk  of  the  Court,"  &c,  has  reference  to  the  seal  of  the 
Court  and  signature  of  the  Clerk  in  the  margin  of  the  writ, 
technically  called  the  teste.  Without  such  attestation  no 
writ  is  valid,  even  though  accepted  by  defendant's  attor- 
ney. Smith  vs.  Assanassieffe,  2  Rich.,  335.  In  the  later 
case  of  Wicker  vs.  Pope,  6  Rich.,  366,  the  process  was  in 
like  manner  without  the  seal  of  the  Court  or  signature  of 
the  Clerk  ;  judgment  was  had  upon  it  and  execution  issued, 
and  defendant  arrested,  and  the  Court  refused  to  set  aside 
the  judgment,  and  ordered  the  Clerk  to  sign  and  seal  the 
process  nunc  pro  tunc.  The  ground  of  the  decision  was, 
that  the  defendant  had  by  his  subsequent  conduct  waived 
the  irregularity.  Care  should,  however,  be  taken  to  avoid 
the  question  by  seeing  that  the  writ  is  signed  and  sealed 

#This  Act  apparently  overrules  the  Act  of  1794,  8  Stat.,  489,  and  the  cases  of  Greggs 
vs.  Summer,  1  McC,  461,  and  Hunter  vs.  Hunter,  1  Bail.,  646;  and  the  Act  of  1791, 
1  Faust.,  44,  and  Huntingdon  vs.  Schultz,  Harper,  452. 


12 

before  it  is  delivered  to  the  Sheriff.  The  official  seal  of  the 
Court  is  rarely  used ;  a  wafer  with  the  signature  of  the 
Clerk  is  the  usage,  and  the  Courts  in  conformity  to  the 
usage,  have  decided  in  Barton  vs.  Keith,  2  Hill,  537,  that 
such  teste  is  sufficient. 

The  writ  may  now  be  considered  complete  and  ready  for 
service,  and  is  to  be  placed  in  the  hands  of  the  Sheriff,  who 
executes  it  in  the  manner  already  specified,  and  returns 
to  the  Court  the  manner  in  which  he  has  executed  it, 
whether  by  personal  service,  or  by  copy  left.  The  return 
must  purport  something  capable  of  being  understood  with- 
out evidence  aliunde,  and  the  letters  N,  E,  I,  have  no  mean- 
ing. (Parker  vs.  Grayson,  1  K  &  McC,  171.)  The' 
return  of  the  Sheriff  is  not,  however,  conclusive,  and  he 
may  be  made  to  amend  it  upon  proof  of  the  facts.  Whether 
the  return  must  be  under  oath  or  not,  is  not  clear,  and  I 
have  been  unable  to  find  any  case  upon  it.  The  Act  of 
1791,  (7  Stat.,  263,)  commands  the  Sheriff  "to  make  certain 
return  thereoff."  The  Act  of  1839,  (11  Stat.,  28,)  simply 
commands  him  "to return"  all  process,  &c.  It  is  otherwise 
with  regard  to  executions  ;  for  the  Act  of  1791,  (7  Stat., 
264,)  expressly  commands  the  return  to  be  on  oath.  The 
cases  of  Graves  ads.  Belser,  (1  N.  &  McC,  125,)  and 
Saunders  vs.  Bobo,  (2  Bail.,  492,)  referred  to  in  Miller's 
Compilation,  p.  203,  as  authority  for  the  position  that  the 
return  of  mesne  process  must  be  sworn  to,  are  both  cases 
of  final  process. 

The  writ  being  duly  served  and  returned,  the  next  step 
in  the  cause  is  to  be  taken  by  the  defendant,  who  must  enter 
an  appearance  with  the  Clerk  of  the  Court  during  the 
sitting  of  the  Court  to  which  the  writ  is  returnable,  and 
defendant  is  entitled  to  the  last  moment  of  the  term  to 
enter  his  appearance. a  Until  appearance  entered  the 
defendant  is  not  in  Court,  and  not  entitled  to  plead, 
although  there  may  have  been  acceptance  of  service  of  the 
writ,  and  plaintiff  is  entitled  to  proceed  and  file  his  dec- 

a  Act  of  1791,  7  Stat.,  263;  Martin  vs.  Maloney,  1  Rich.,  273. 


13 

laration  and  take  judgment  by  default."  If  there  is  any 
defect  or  irregularity  in  the  writ  to  which  the  defendant 
excepts,  the  proper  plan  is  to  make  the  objection  at  the 
return  term  of  the  writ,  by  moving  to  set  it  aside  ;  and  if 
the  motion  is  overruled  the  defendant  can  then  appear  and 
plead ;  but  if  the  defendant  postpones  the  motion  until  the 
succeeding  term  and  fails,  he  will  not  then  be  permitted  to 
appear  and  plead.b 

The  failure  to  appear,  as  has  been  said,  precludes  the 
defendant  from  pleading  ;  when,  however,  it  can  be  shown 
on  affidavit  that  the  failure  resulted  from  a  mistake 
between  the  defendant  and  his  attorney,0  or  from  causes 
beyond  his  control/  and  that  he  has  a  good  and  legal 
defence,  he  will  be  permitted  to  appear  and  plead  ;  but  the 
permission  is  only  accorded  where  the  cause  has  not  yet 
proceeded  to  final  judgment,  and  is  always  granted  on  the 
condition  that  the  plaintiff  is  not  delayed  thereby.6  * 

One  copartner  cannot  authorize  an  appearance  for  an- 
other/ and  where  one  copartner  appears  and  the  other 
makes  default,  the  regular  mode  of  proceeding  is  to  go  on 
and  get  judgment  for  the  whole  debt  against  the  one  appear- 
ing, and  execute  a  writ  of  inquiry  against  the  one  making 
default,  for  the  whole  debt  also.g 

The  plaintiff  next  proceeds  to  file  his  declaration,  "  dur- 
ing the  sitting  of  the  Court  next  after,  the  writ  is  returna- 
ble, or  at  any  time  after  until  the  next  succeeding  Court.  "h 

a  Act  of  1791,  Donlevy  &  Co.  vs.  Cooper;  2  N.  &  McC,  548;  Law  vs.  Duncan. 
2  Brev.,  263. 

b  Hanks  vs.  Ingraham,  2  Bail.,  440. 

c  Williamson  vs.  Cuinming,  2  McC,  250;  Wilkie  vs.  Walton,  2  Spear,  479. 

d  See  Evans  ads.  Parr,  1  McC,  283. 

e  Scbroeder  vs.  Eason,  2  N.  &  McC,  292;  Wilkie  vs.  Walton,  2  Spear,  479. 

f  Haslett  vs.  Street,  2  McC.  310  ;  Loomis  vs.  Piearson,  Harp.,  470. 

8  Simpson  ads.  Geddes,  2  Bay,  533. 

h  Act  of  1791.  7  Stat.,  263. 

*  The  opinion  of  O'Neall,  J.,  in  the  case  of  Barnes  vs.  Bell,  11  Rich.,  20,  apparently 
confirms  a  dictum  in  Frean  vs.  Cruikshanks,  3  McC,  84,  to  the  effect  that  an  appear- 
ance may  be  permitted  after  final  judgment.  It  is,  however,  respectfully  submit- 
ted that  the  dictum  is  in  direct  opposition  to  the  point  decided  in  the  cases  of 
Scbroeder  vs.  Eason,  2  N.  *  McC,  and  Wilkie  vs.  Walton,  2  Spear. 


14 

According  to  the  construction  of  this  Act  in  the  Bank  vs. 
Torre,  (2  Spear,  508,)  by  the  return  of  the  writ  is  meant, 
not  the  appearance  term,  but  the  very  day  when  the  Sheriff' 
is  required  to  make  return  to  the  Clerk,  which  is  of  course 
fifteen  days  before  the  sitting  of  the  Court.*  The  plaintiff 
thus  has  the  appearance  term,  and  uiitil  the  next  succeed- 
ing Court,  within  which  to  file  his  declaration.  "If,  how- 
ever, he  should  not  file  his  declaration  before  the  first  day 
of  the  second  term,  after  the  return  of  the  writ,  he  shall 
not  be  permitted  to  file  it  afterwards  without  obtaining 
leave  to  do  so  ;  and  he  shall  give  four  days'  notice  to  the 
adverse  party  of  the  time  and  place,  when  and  where  he 
intends  to  move  for  leave,  unless  the  motion  is  made  in 
open  Court,  in  which  case  one  day's  notice  shall  be  suffi- 
cient." 67th  Rule  of  Court.  This  leave  for  further  time  to 
declare,  can  only  be  had,  when  moved  for  prior  to  the  expi- 
ration of  a  year  and  a  day  from  the  date  of  the  return  ;  for 
if  the  year  and  day  expire  before  the  declaration  is  filed 
or  further  time  granted,  the  plaintiff'  is  out  of  Court  and 
cannot  afterwards  obtain  leave.b 

If  on  the  first  day  of  the  second  term  after  the  return  of 
the  writ,  the  plaintiff  has  not  filed  his  declaration,  the 
defendant  may  either  then,  or  at  any  time  within  the  year 
and  day,  enter  up  judgment  of  nonpros.,  as  of  course,  and 
without  order  of  Court  or  rule  to  declare.0  The  judgment 
of  non  pros,  thus  obtained,  will,  however,  in  the  discretion 
of  the  Court,  be  set  aside  on  payment  of  costs,  in  order  to 
let  in  a  trial  on  the  merits,  but  the  motion  to  set  aside  must 
come  at  some  time  within  which  the  plaintiff  could  obtain 
leave  for  further  time  to  declare.4 

In  general,  a  judgment  of  non  pros,  cannot  be  entered 
up  where  no  appearance  has  been  entered,  or  where  it  has 
been  entered  after  the  cause  is  out  of  Court.6 


a  See  Martin  vs.  Maloney,  1  Rich.,  273. 

b  Bank  vs.  Torre,  2  Spear,  509 ;  Wright  vs.  Higginbottom,  1  N.  &  McC,  8. 

c  Smith  vs.  Lewis,  1  N.  &  McC,  3S ;  Wright  vs.  Higginbottom,  IN.  i  McC,  8. 

d  Bank  vs  Torre,  2  Spear,  509. 

e  Murphy  vs.  Sumner,  1  Hill,  221 ;  Roderick  vs.  Payne,  1  McC,  408. 


15 

With  the  declaration  should  he  filed  "a  copy  of  every 
deed,  bond  or  open  account,  or  other  writing  declared  on." 
4th  Mule  of  Court.  This  is  technically  called  the  hill  of 
particulars,  and  although  the  words  of  the  rule  call  for  a 
"copy,"  the  rule  is  complied  with  by  filing  the  original.11 
The  bill  of  particulars  forms,  however,  no  part  of  the 
record  ;  if  it  he  not  filed,  the  defendant  may  refuse  to  plead 
until  it  is  filed.  If  evidence  is  offered  of  demands  not  con- 
tained in  the  bill  of  particulars,  the  evidence  may  be 
objected  to  ;  but  where  evidence  is  given  which  fully  sus- 
tains the  count,  it  can  be  no  ground  for  nonsuit  that  it  does 
not  agree  with  that  which  is  no  part  of  the  count.1' 

The  object  of  the  bill  of  particulars  is,  as  its  name  im- 
ports, merely  to  specify  and  particularize  that  which  in  the 
declaration  is  general  and  uncertain,  and  when  the  particu- 
lars of  the  demand  are  disclosed  in  the  declaration,  as  in 
special  assumpsit,  covenant,  debt  on  articles  of  agreement, 
&c,  a  bill  of  particulars,  as  it  can  furnish  no  more  definite 
information,  is  needless.0  The  omission  to  file  it  when  it  is 
necessary,  must  be  taken  advantage  of  by  special  demurrer.'1 

On  filing  the  declaration  in  the  Clerk's  office,  it  is  the 
duty  of  the  Clerk  (where  defendant  has  appeared)  to  post  a 
thirty  day  rule  to  plead ;  but  if  the  defendant  has  not 
entered  an  appearance,  no  rule  should  be  posted,  as  the  non- 
appearance would  be  thereby  waived  ;e  but  plaintiff"  should 
obtain  from  the  Clerk  an  order  for  judgment  by  default, 
and  have  the  case  placed  on  the  Inquiry  Docket/ 

If  the  defendant  has  duly  entered  his  appearance,  he 
must  file  his  plea  at  or  before  the  expiration  of  the  rule  to 
plead.  The  form  of  the  plea  will  depend  on  the  nature  of 
the  action,  and  is  to  be  regulated  by  the  settled  rules  of 


a  Davis  vs.  Cosnahan,  I  Hill,  373. 

b  Davis  vs.  Hunt.  2  Bail..  410:  Edwards  vs.  Ford.  2  Bail..  463;  Gregg-  vs.  Vause, 
8  Rich.,  431. 
c  Long  vs.  Kinard,  Harp.,  47  ;  Bailey  vs.  Wilson,  1  Bail.,  15. 
d  Cregier  vs.  Sniythe,  1  Spear,  302. 

e  Perkins  vs.  Burton,  2  Brev.,  97  ;  Law  vs.  Duncan,  Ibid.  263, 
f  Act  of  1791.  7  Stat.,  263.  and  cases  in  2  Brev.,  above. 


16 

pleading,  and  does  not  fall  within  the  limits  of  this  sketch. 
Upon  filing  it,  the  Clerk  posts  a  ten  day  rale  for  plaintiff  to 
put  in  his  replication.  Should  pleadings  proceed  further, 
each  party  putting  in  a  plea  obtains  a  ten  day  rale,  posted 
by  the  Clerk  as  above,  within  which  the  opposite  party  must 
tile  his  plea  in  response.  (See  3d  Rule  of  Court.)  So  too 
whenever  the  plaintiff,  by  leave  of  Court  adds  a  new  count 
to  his  declaration,  he  must  post  a  new  rule  to  plead.'1 

If  the  defendant  does  not  tile  his  plea  within  the  thirty 
days  required  by  the  rule,  the  plaintiff  may  enter  up  judg- 
ment for  default,  and  have  the  case  placed  on  the  Inquiry 
Docket.  The  defendant  may,  however,  on  or  before  the 
second  day  of  the  term  next  after  such  judgment  is  entered, 
vacate  the  judgment  on  payment  of  costs — pleading  an  issu- 
able plea,  and  submitting  to  such  terms  as  the  Court  may 
see  tit  to  impose. b  It  must  be  borne  in  mind,  however,  that 
to  entitle  the  defendant  to  move  to  vacate  the  judgment  by 
default,  he  must  have  regularly  appeared  to  the  writ.0  Such 
is  the  general  rule,  but  where  the  omission  has  occurred  by 
mistake  of  counsel,  the  defendant  is  permitted  to  appear 
and  move  to  set  aside  the  judgment  ;d  and  that  even  after 
the  second  day  of  the  term.6 

The  judgment  by  default,  it  is  thus  seen,  may  be  either 
for  default  of  appearance,  or  for  default  of  plea;  in  either 
event,  the  judgment  being  entered  up  (which  is  done  by  the 
order  of  Clerk  on  the  back  of  the  declaration,  no  formal  entry 
up  of  judgment  being  necessary,)  and  the  case  placed  on  the 
Inquiry  Docket,  it  only  remains  for  the  plaintiff  to  estimate 
his  damages ;  his  right  to  recover  is  fixed  by  the  judgment 
by  default,  and  the  amount  of  recovery  alone  remains 
doubtful. 

If  the  suit  is  brought  upon  a  liquidated  demand — and 
every  demand  is  a  liquiated  demand  where  the  amount 

»  1  Hill,  421. 

b  2d  Rule  of  Court;  Hare  vs.  Goodwyn,  2  Bay,  521. 

c  Shackelford  ads.  Smith,  Rice  Dig.,  Practice,  No.  90. 

d  See  Williamson  vs.  dimming,  2  McC,  250,  and  cases  ante,  page  13. 

6  Sargent  vs.  Wilson,  2  McC,  512. 


17 

due  is  fixed  and  ascertained  by  some  writing  of  the  defend- 
ant*— it  is  not  necessary  for  the  plaintiff  to  prove  his 
demand,  or  execute  a  writ  of  inquiry  ;  but  upon  motion, 
the  demand  is  referred  to  the  Clerk  to  ascertain  the  sum 
actually  due,  and  judgment  is  entered  up  for  the  amount 
so  ascertained. b  The  opinion  prevailed  at  one  time  in  the 
profession,  that  where  the  action  was  on  a. penal  bond,  the 
plaintiff  was  at  liberty,  on  default  of  appearance,  to  enter 
up  final  judgment  and  issue  execution,  inasmuch  as  there 
were  no  damages  to  be  assessed  ;c  but  the  case  of  Martin 
vs.  Maloney,  1  Rich.,  273,  has  overruled  that  doctrine,  and 
the  plaintiff  must  put  the  case  on  the  Inquiry  Docket,  and 
at  the  term  succeeding  the  default,  move  for  leave  to  enter 
up  final  judgment,  without  reference  to  the  Clerk,  or  execu- 
tion of  writ  of  inquiry,  and  this  is  granted  by  the  Judge's 
entry  on  the  Docket.     "Judgment  final." 

AVhere,  however,  the  demand  is  unliquidated,  it  is  then 
necessary  for  the  plaintiff  to  execute  a  writ  of  inquiry,  but, 
unlike  the  English  practice,  there  is  with  us  no  writ  issued  ; 
but  the  case  being  upon  the  Inquiry  Docket  as  already 
explained,  is  upon  the  call  of  the  Docket,  executed  by 
the  jury  in  attendance.  The  plaintiff  must  confine  him- 
self in  his  proof  to  the  case  stated  in  his  declaration. d 
The  defendant  is  restricted  to  evidence  in  mitigation  of 
damages,  and  cannot  introduce  evidence  in  discharge  of  the 
action  or  of  pa}Tments  or  other  discounts.6  In  other  words, 
he  can  contest  the  amount  of  the  debt,  but  not  the  debt 
itself,  and  the  jury  are  bound  to  find  some  damages  for  the 
plaintiff — they  can  never  find  for  the  defendant/ 

Having  departed  from  the  regular  course  of  the  suit  to 
glance  at  the  practice  where  the  defendant  fails  to  appear, 
or  appearing,  fails  to  plead,  it  is  necessary,  before  resum- 


»  Wilkie  vs.  Walton,  2  Spear,  477. 

b  Act  of  1809,  7  Stat.,  308;  The  Bank  vs.  Vaughan,  2  Hill,  556. 

c  See  Dawkins,  et.  al.,  vs.  Vaughan,  1  McC,  554. 

d  Mathews  vs.  Sims,  2  Mills,  103. 

e  Covington  vs.  Rogers,  2  Bail,  407. 

f  Reigne  vs.  Dewees,  2  Bay,  405;  Parsons  vs.  Cain,  1  Mills,  196;  2  Ibid,  58. 


18 

ing,  to  note  a  few  matters  of  general  occurrence  in  the  pro- 
gress of  a  cause.  The  defendant  may,  in  reply  to  the 
plaintiff's  claim  wish  to  rely  upon  several  matters  in  his 
defence.  At  common  law,  this  could  not  have  been  done, 
but  by  the  Stat.,  4  Ann,  c.  16,  §  4,  of  force  in  this  State,  the 
defendant  in  any  action,  may,  with  the  leave  of  the  Court, 
plead  as  many  several  matters  thereto  as  he  shall  think 
necessary  for  his  defence.  The  motion  for  leave  to  plead 
double  must  be  made  sedente  curia*  and  the  Court  in  its 
discretion,  may  grant  leave  to  plead  double  any  time,  pro- 
vided it  does  not  operate  a  surprise  upon  the  plaintiff  ;b  but 
the  proper  time  to  obtain  leave  is  the  first  Court  after  the 
filing  of  the  declaration.0  It  seems  that  leave  will  not  be 
granted  at  any  subsequent  Court,  unless  the  cause  had 
been  previously  continued  over  to  the  succeeding  term,  nor 
even  then  without  giving  notice  to  the  adverse  party  to 
show  cause  to  the  contrary.*1  As  the  proper  time  to 
obtain  leave  is  the  first  term  after  the  filing  of  the  declara- 
tion, and  as  to  entitle  the  case  to  be  heard,  the  pleadings 
must  be  made  up,  and  the  case  docketed,  before  the  Court 
meets,  (See  Rules  of  Court,  17-20,)  it  will  doubtless  occur 
to  the  student  that  there  is  some  embarrassment  in  the 
matter,  and  that  in  order  to  plead  double,  one  term  viz: 
the  term  at  which  the  motion  for  leave  is  made,  must  be 
lost ;  but  as  said  by  Judge  Johnson  in  Richardson  vs. 
"Whitfield,  2  McC,  150,  the  defendant  has  the  right  to 
plead  as  many  matters  in  his  defence  as  his  case  permits, 
subject  to  two  limitations — 

"  1st.  That  they  shall  not  involve  the  ridiculous  absur- 
dity of  being  inconsistent,  and 

2d.  That  they  shall  not  operate  as  a  surprise  on  the 
plaintiff,  by  being  made  at  the  moment  of  trial.  ***** 
Within  these  limitations  the  Court  has  no  control  over  the 
right,  and  the  whole  object  of  applying  for  leave  to  plead 

a  Fraser  ads.  McLeod,  2  Bay,  407. 

b  Holter  vs.  Lewis  &  Pepoon,  1  McC,  12 ;  Stewart  vs.  McCully,  5  Rich.,  83. 

c  Miller  vs.  Fisk,  1  McC,  50. 

d  Miller  vs.  Fisk,  1  McC,  60. 


19 

double  is  to  preserve  them,  so  that  in  truth  the  tiling  of 
consistent  double  pleas,  so  far  as  their  merit  is  con- 
cerned, is  a  mere  motion  of  course,  which  only  requires 
the  signature  of  counsel."  The  practice  is  to  file  the 
double  pleas  before  the  expiration  of  the  rule  to  plead. 
The  defendant,  after  pleading  the  general  issue  or  other 
plea,  setting  forth  "And  the  said  defendant,  for  a  further 
plea  in  this  behalf,  by  leave  of  the  Court  first  had  and 
obtained,  says,"  &c.  Notice  is  thus  brought  home  to  the 
plaintiff'  of  the  defence  the  defendant  relies  on,  and  the 
motion  for  leave  may  be  made  at  the  ensuing  Court,  "  so 
as  to  protect  the  pleas  already  filed  from  the  objection  that 
they  had  been  filed  without  leave  of  the  Court. "a  With 
regard  to  what  are  inconsistent  pleas,  it  is  difficult  to 
lay  down  positively  any  rule,  for  since  non  est  factum  and 
'performance,  not  guilty  and  liberum  tenementum,  may  be 
pleaded  together  as  consistent,  the  distinction  between  con- 
sistency and  inconsistency  savors  very  much  of  "  the  palpa- 
ble obscure." 

If  the  defendant  has  any  demands  against  the  plaintitf, 
embraced  within  the  provision  of  the  Discount  Act  of 
1759,  (4  Stat.,  76,)  and  intends  to  rely  upon  them  at  the 
trial  as  an  offset  to  the  plaintiff's  claim,  they  need  not  be 
pleaded,  but  may  be  given  in  evidence  under  the  general 
issue,  the  defendant  giving  to  the  plaintiff,  or  his  attorney, 
twelve  days'  notice,  in  writing,  of  his  intention,  and  a  copy 
of  the  accounts,  matters  or  things  that  he  intends  to  insist 
upon  as  a  discount.  Or  the  defendant  may  admit  the  jus- 
tice of  the  part  of  the  plaintiff's  claim,  and  dispute  the  bal- 
ance. In  such  case,  it  is  proper  to  obtain,  on  motion,  at 
the  return  term  of  the  writ,  an  order  of  Court,  granting 
leave  to  the  defendant  to  pay  into  Court  the  amount  he 
admits  to  be  due,  together  with  the  costs  accrued  up  to  that 
time.  The  order  being  granted,  the  money  is  paid  to  the 
Clerk  and  his  receipt  taken,  and  the  plaintiff,  if  he  prose- 
cutes the  suit  for  the  balance,  and  fails,  is  liable  for  all  the 
costs  of  the  suit  subsequent  to  the  payment  of  the  money." 

*  2  McC,  150,  and  Stewart  vs.  McCuIly,  5  Rich.,  SO. 


20 

Resuming  our  sketch  of  the  progress  of  a  suit,  we  come 
to  the  trial.  The  issue  having  been  made  up,  and  the  case 
docketed,  as  already  noted,  it  is  ready  for  trial ;  but  it  may 
happen  that  when  the  case  is  called,  either  the  plaintiff  or 
defendant  may  be  unprepared,  and  seek  for  a  postponement 
or  continuance  of  it  until  the  next  term.b  This  is  obtained 
by  motion ;  the  granting  or  refusing  of  which  is  a  matter 
altogether  within  the  discretion  of  the  presiding  Judge. 
Where  the  continuance  is  moved  for,  because  of  the 
absence  of  a  material  witness,  the  motion  must  be  sup- 
ported by  affidavit,  setting  forth  that  the  testimony  of  the 
witness  will  be  material  to  support  the  action  or  defence  of 
the  party  moving ;  that  he  cannot  go  safely  to  trial  without 
such  testimony,  and  that  his  motion  is  not  intended  for 
delay,  and  that  he  has  used  due  diligence  to  procure  the 
attendance  of  the  witness,  and  if  a  subpoena  has  been 
issued,  the  original  shall  be  produced,  with  proof  of  ser- 
vice, or  reason  for  nonservice,  (23d  Rule  of  Court.)  There 
is  nothing  said  as  to  who  shall  make  the  affidavit,  but  it 
should  properly  be  made  by  the  party  himself,  or  his  attor- 
ney in  fact.  Cases  may  occur  in  which  the  counsel  in  the 
cause  must,  of  necessity,  make  the  affidavit,  but  as  a  gen- 
eral rule,  counsel  should  confine  themselves  to  their  legiti- 
mate duties  of  preparing  and  arguing  the  case,  and  leave 
all  statements  of  facts  to  be  made  by  the  parties  to  the 
record,  or  the  witnesses  in  the  cause. 

The  rule,  it  will  be  observed,  requires  that  the  party 
moving  for  a  continuance,  shall  set  forth  in  his  affidavit 
that  he  has  used  due  diligence  to  procure  the  attendance  of 
the  witness,  and  it  seems  to  be  the  settled  doctrine  that 
due  diligence  has  not  been  used  where  the  witness  has  not 
been  subpoenaed.0  If  the  motion  for  a  continuance  on  the 
ground  of  the  absence  of  a  witness  is  made  after  the  first 


a  Broughton  vs.  Richardson,  2  Rich.,  64. 

b  Price  ads.  Justrobe,  Harp.,  Ill;  Ordinary  vs.  Robinson,  1  Bail.,  25;  Hunter  vs. 
Glenn,  2  Bail.,  542 ;  Hort  vs.  Jones,  2  Bay,  440. 

c  Bone  vs.  Hillan,  1  Mills,  197 ;  Sheppard  vs.  Lark,  2  Bail.,  576. 


21 

term,  the  party  moving,  in  addition  to  the  above  requisites, 
must  set  forth  in  his  affidavit  what  he  believes  the  witness 
will  prove,  (25th  Rule  of  Court.)  The  presiding  Judge  is 
not,  however,  bound  to  grant  a  continuance  at  any  time — 
even  where  the  requisitions  of  the  23d  Rule  have  been  com- 
plied with — it  still  remains  in  his  discretion.11  Opposed  to 
continuance  is  discontinuance,  which  is  the  act  of  the  plain- 
tiff, and  is  a  letting  fall  of  the  action  either  as  to  one  or  all 
of  the  parties  sued.  Where  the  contract  is  joint  and  several, 
the  plaintiff,  although  he  has  issued  his  writ  against  all  the 
parties  to  it,  may  at  any  time  discontinue  as  to  one,  and  pro- 
ceed to  judgment  against  the  other  ;b  but  this  must  be  done 
by  leave  of  the  Court.0  So,  too,  when  there  are  several 
plaintiffs,  the  Court  may,  in  its  discretion,  give  leave  to  one 
or  more  of  them  to  amend  the  declaration,  by  striking  out 
his  or  their  names  from  the  declaration,  where  it  appears 
that  they  have  no  interest  in  the  cause. d  A  discontinuance 
may  also  occur  where  the  plaintiff  has  allowed  too  long  a 
time  to  elapse  between  any  of  the  stages  of  his  pleadings, 
but  every  order  entered  in  a  cause  is  such  a  continuance  of 
it  that  the  party  cannot  be  held  to  have  let  fall  his  action 
until  a  year  and  a  day  has  elapsed  from  the  entry  of  the 
last  order.6 

If  none  of  these  collateral  proceedings  are  adopted,  but 
the  parties  are  ready,  and  intend  to  try  the  issue,  it  is 
necessary  then  to  have  the  evidence  upon  which  they  rely, 
in  readiness  before  the  Court.  The  evidence  must  of 
necessity  be  either  written  or  oral,  for  under  one  or  the 
other  of  these  two  classes  must  all  the  instruments  of  evi- 
dence fall.  If  the  evidence  is  written,  and  the  party  is  in 
possession  of  the  original  document,  it  is  only  necessary  to 
produce  it,  together  with  such  proof   as  is   necessary  to 


a  State  vs.  Thomas,  8  Rich.,  295. 
b  Karck  vs.  Avinger,  3  Hill,  217. 

c  Fitch  vs.  Hcise,  Cheves,  185 ;  Bomar  vs.  Williams,  2  Rich.,  12  ;  Lamar,   Daniel 
vs.  Reed,  2  McM.,  347  ;  Freeman  vs.  Clark,  3  Strob.,  282. 
d  Harkins  vs.  Lcrrix,  2  N.  &  McC,  HI. 
e  Perry  vs.  Aiken,  3  Rich.,  60. 


22 

establish  its  validity  and  genuineness.  If  a  record,  and  of 
the  Court  in  which  the  trial  is  had,  this  is  done  by  calling 
the  Clerk  of  the  Court  from  whose  custody  the  record  is 
taken.  If  the  record  is  of  another  Court,  then,  as  the  ori- 
ginal cannot  be  taken  out  of  the  office  in  which  it  is  filed, 
an  exemplification  of  it  under  the  seal  of  the  Court  is 
admissible.  If  the  written  evidence  consists  of  a  deed,  its 
validity  is  proved  by  the  subscribing  witnesses. 

If  the  original,  however,  is  not  in  the  possession  of  the 
party,  but  in  the  possession  of  the  adverse  party,  the  latter 
may  be  compelled,  on  reasonable  notice  given  in  writing,  to 
produce  it  at  the  trial,  or  admit  secondary  evidence  of  its 
contents.  What  is  reasonable  notice  must  be  regulated  by 
the  circumstances  of  the  case.a  If  secondary  evidence  will 
not  serve  the  purposes  of  the  party  calling  for  the  original, 
or  is  not  attainable,  a  resort  to  equity  by  bill  of  discovery 
will  procure  the  production  of  the  document. 

If  the  document  sought  for  is  in  the  possession  of  a  third 
party,  he  may  be  compelled  to  produce  it  by  serving  him 
with  a  subpmna  duces  tecum,  by  which  he  is  commanded  to 
bring  into  Court  the  deed  or  paper  wished  for,  and  the 
party  issuing  such  subpoena  is  entitled  to  have  a  return 
made  to  it  before  he  can  be  compelled  to  enter  upon  the 
trial  of  his  cause. b  If,  however,  the  deed  is  lost,  then,  on 
proof  of  the  loss  of  the  original,  a  certified  copy  from  the 
record  in  the  register's  office  is  admissible  in  evidence.0 
What  is  sufficient  proof  of  loss  must  in  general  depend  on 
the  circumstances  of  each  particular  case,  but  in  general  it 
is  only  necessary  to  show  that  the  deed  or  paper  has  been 
diligently  sought  for,  where  it  might  be  expected  to  be 
found,  or  was  usually  kept,  and  that  it  could  not  be  found.d 
Where  the  deed  is  duly  proved  before  a  Justice  of  the 
Peace,  and  recorded,  no  further  proof  of  its  existence  or 


a  Reynolds  vs.  Quattlebum,  2  Rich.,  145. 
b  Treasurers  vs.  Moore,  2  Tread.,  755. 

0  Act  of  1731,  3  Stat.,  303;   Purvis  vs.   Robinson,  1   Bay,  493;  Dingle  vs.  Bow- 
man, 1  McC,  177  ;  Act  of  1843,  11  Stat.,  255. 
d  Peay  vs.  Pickett,  3  McC,  322;  Floyd  vs.  Mintsey,  5  Rich.,  372. 


23 

execution  is  needed:  proof  of  the  loss  is  alone  necessary  to 
the  introduction  of  the  copy.a 

If  the  matters  relied  on  are  to  be  established  by  oral 
evidence,  the  witnesses  who  are  to  testify  to  the  facts,  must 
be  served  with  subpoena,  commanding  them  to  attend  at  the 
Court  on  the  day  specified  in  the  subpoena.  Not  more  than 
four  witnesses  should  be  included  in  any  one  subpoena  writ ; 
and  subpoena  tickets  filled  out  and  addressed  to  each  of  the 
witnesses  named  in  the  writ,  should  be  handed  to  the 
Sheriff",  together  with  the  writ ;  and  a  witness  failing  to 
obey  a  subpoena,  without  sufficient  excuse,  is  guilty  of  a 
contempt,  and  may  be  punished  by  fine  and  imprisonment.11 

If  the  witness  reside  without  the  limits  of  the  district,  or 
more  than  thirty  miles  from  the  Court  House,  where  the  trial 
is  to  be  had,  or  is  about  to  remove  without  the  limits  of  the 
State  before  the  sitting  of  the  next  Court,  or  his  presence 
cannot  be  procured  by  reason  of  indispensable  attendance 
on  some  public,  official,  or  professional  duty,  or  of  such 
sickness  or  infirmity  as  incapacitates  him  from  travel,  he 
may  be  examined  by  commission  issuing  from  the  Clerk  of 
the  Common  Pleas,  and  under  the  seal  of  the  Court,  and 
directed  to  three  or  more  commissioners,  authorizing  them 
or  any  two  of  them  to  take  the  deposition  of  the  witness 
unable  to  attend.0  The  practice  in  obtaining  the  commis- 
sion is  as  follows  :  A  copy  of  the  interrogatories  to  be  pro- 
pounded to  the  witness,  is  served  upon  the  adverse  party  to 
the  suit,  or  his  attorney  accompanied  by  written  notice  that 
in  ten  days  application  will  be  made  to  the  Clerk  of 
Court  for  a  commission.  It  is  customary  to  furnish  the 
adverse  party  at  the  same  time  with  the  names  of  the  par- 
ties selected  as  commissioners,  so  as  to  enable  him  to  object 
to  them  if  necessary.  The  notice  must  be  served  person- 
ally on  the  party  or  Ids  attorney ;  leaving  a  copy  in  analogy 
to  service  of    process,   is  not   sufficient.11      To   the    inter- 

»  McLeod  vs.  Rogers,  2  Rich  ,  21 ;  Darby  vs.  Huffman,  Ibid.,  533. 

b  Johnson  vs.  Wideman,  Dudley,  71 

c  Act  of  1839,  11  Stat.,  75. 

d  Gooday  vs.  Codies,  1  Strob.,  201. 


24 

rogatories  thus  served,  the  adverse  party  puts  in  cross 
interrogatories,  furnishing  at  the  same  time  the  names  of 
the  commissioners,  selected  by  him.a  At  the  expiration  of 
the  ten  days  the  party  seeking  the  commission  makes 
application  to  the  Clerk  accompanying  it  by  affidavit  as  to 
the  materiality  of  the  witness  and  the  reasons  why  his 
attendance  cannot  be  obtained,  and  by  proof  that  the 
adverse  party  has  had  the  requisite  notice.b  The  adverse 
party  lias  the  right  to  show  cause  before  the  Clerk  why  the 
application  should  not  be  granted.  But  this  right  is 
limited,  it  is  presumed,  to  contesting  the  facts  set  forth  in  the 
affidavit,  or  the  competency  of  the  commissioners,  for  if 
the  objection  touches  the  competency  of  the  witness  or  the 
relevancy  or  admissibility  of  the  questions  propounded, 
the  objection  is  properly  made  when  the  commission  conies 
to  be  read  at  the  trial.  It  is  proper,  however,  when  either 
party  objects  to  the  questions  propounded  by  his  adversary, 
that  the  objection  be  noted  at  the  time  on  the  interroga- 
tories.0 The  commission  being  granted  and  signed  and 
sealed  by  the  Clerk,  the  interrogatories,  cross  interroga- 
tories and  interrogatories  in  reply,  together  with  all  such 
papers  as  are  to  be  read  to  the  witness,  or  are  referred  to 
in  the  interrogatories,  are  to  be  attached  to  the  commission, 
which  is  then  ready  to  be  sent  forward  to  the  commissioners. 

Notwithstanding,  however,  the  issuing,  execution  and 
return  of  the  commission,  if  it  is  found  that  the  witness 
examined  is  within  the  district  or  nor  more  than  thirty 
miles  from  the  Court  House  where  the  trial  is  to  be  had, 
either  party  may,  on  two  days'  notice  given,  obtain  a  rule  to 
compel  his  personal  attendance.'1 

With  regard  to  the  mode  of  executing  the  commission, 
the  printed  instructions  endorsed  on  the  commission  are  so 
full  and  accurate  that  little  need  be  said.  The  commission 
should  be  executed  by  at  least  two  of  the  commissioners, 
although  it  seems  by  the  case  of  Mosely  vs.  Graydon,  4 


a  Dogan  vs.  Ashby,  1  Strob.,  436.       °  Teague  vs.  S.  C.  R.  R.  Co.,  8  Rich.,  155. 
b  Gooday  vs.  Corlies,  1  Strob.,  201.    *  Act  of  1839, 11  Stat.,  page  75. 


25 

Strob.,  7,  that  a  commission  may  under  peculiar  circum- 
stances be  validly  executed  by  one  ;  but  since  the  case  of 
Dogan  vs.  Ashby,  1  Strob.,  436,  directing  the  Clerk  to  see 
that  commissioners  representing  each  party  are  named  in 
the  commission,  no  difficulty  can  arise  except  from  the 
default  of  one  of  the  parties  to  the  suit. 

If  the  commission  is  to  be  executed  in  a  foreign  country, 
and  the  answers  to  the  questions  are  in  a  foreign  language, 
it  is  advisable  that  a  sworn  translation  of  the  answers  accom- 
pany the  return  of  the  commission,  simply  as  a  test  of  the 
translation  made  by  the  interpreter  before  the  Court." 

When  commissions  issue  from  any  Court  of  any  other  of 
the  United  States,  or  from  any  Court  in  this  State,  to 
examine  a  witness,  the  commissioners  in  order  to  obtain 
the  attendance  of  the  witness  before  them,  shall  produce 
the  commission  to  a  Judge  of  the  Supreme  or  County 
Court,  who,  on  being  satisfied  of  its  regularity  and  authenti- 
city, shall  direct  a  subpmia  to  issue  from  the  Clerk's  office 
of  the  nearest  Court  of  Common  Pleas,  recpiiring  the  wit- 
ness to  attend  before  the  commissioners  at  a  certain  time, 
and  at  some  place  not  exceeding  fifteen  miles  from  the  res- 
idence of  the  witness,  and  the  subpoena  shall  be  served  on 
the  witness  personally  at  least  two  days  before  the  time  at 
which  he  is  required  to  attend,  and  if  the  witness  fails  to 
attend,  or  attending,  refuses  to  answer,  an  attachment 
against  him  for  contempt  may  be  had  from  the  Courts,  and 
he  shall  be  liable  in  like  manner  as  a  witness  subpoenaed 
and  refusing  to  attend  a  Court  of  record  of  the  State.* 
What  process  the  commissioners  may  employ  to  procure 
the  attendance  of  the  witnesses  when  the  commission 
issues  from  Great  Britain  or  any  of  the  Continental  States, 
does  not  appear.  No  provision  being  made  for  such  cases, 
as  far  as  I  can  perceive. 

The  evidence  being  in  Court,  and  the  case  called,  the 
plaintiff  opens  his  case  by  briefly  stating  to  the  Court  and 
jury  the  matters  complained  of,  his  legal  rights  in  the  case, 

•  Kuhtman  vs.  Brown  &  Goldsmith,  4  Rich.,  479.       b  Act  of  1794,  5  Stat.,  248. 


26 

and  the  facts  lie  relies  on  to  sustain  them  ;  and  lie  then 
introduces  his  testimony  producing  in  the  first  instance, 
everything  material  to  support  his  case.  The  defendant 
next  offers  all  his  evidence  in  defence  and  the  plaintiff 
replies,  introducing  no  new  matter,  but  simply  restricting 
himself  to  the  introduction  of  evidence  to  meet  the  case 
made  by  the  defendant's  testimony.1 

If  at  the  close  of  the  plaintiff's  case  he  has  not  proved 
his  cause  of  action  and  right  to  redress,  the  defendant's 
counsel,  in  lieu  of  introducing  evidence,  may  move  for  a 
nonsuit ;  or  the  plaintiff's  counsel,  if  himself  satisfied  that 
he  has  failed  to  make  out  his  case,  may  voluntarily  sub- 
mit to  a  nonsuit  so  as  to  prevent  the  defendant  from  taking 
a  verdict,  the  effect  of  which  would  be  to  conclude  the 
matter.  A  nonsuit  merely  puts  a  stop  to  the  present  pro- 
ceeding, leaving  the  plaintiff  at  full  liberty  to  begin  de  novo. 
The  Court,  however,  proceed  with  great  caution  in  grant- 
ing a  nonsuit  in  invitum,}  If  the  plaintiff  omits  to  call  a 
witness  present  in  Court  to  testify  to  a  fact  necessary  to 
maintain  the  action,  either  through  accident  or  an  impres- 
sion that  formal  evidence  of  that  fact  is  not  essential,  it  is 
in  the  discretion  of  the  Court  to  permit  him  to  introduce  it 
even  though  a  nonsuit  has  been  moved  for,  argued  and 
determined  against  him.0  After  the  defendant  has  submit- 
ted his  case  to  a  jury,  by  giving  evidence  and  permitting 
them  to  retire,  he  cannot  then  move  for  a  nonsuit  ;d  but  a 
plaintiff  may  at  any  time  before  the  jury  have  published 
their  verdict,  abandon  his  case  and  submit  to  nonsuit.6 

Questions  sometimes  arise  at  the  trial  as  to  who  is  enti- 
tled to  the  reply  in  argument.  The  legitimate  scope  and 
object  of  a  reply  is  to  answer  the  argument  of  the  adverse 
counsel ;  but  under  the  latitude  permitted  by  our  Courts, 


a  Caldwell  vs.  Wilson,  2  Spear,  79;  Clinton  vs.  MeKenzie,  5  Strob.,  41. 
b  Roger  vs.  Madden,  2  Bail.,  322. 

c  Campbell  vs.  Ingraham,  1  Mills,  293;  Browning  vs.  Iluff,   2  Bail.,  171;    Poole 
vs.  Mitcbell,  1  Hill,  404. 

d  MeEwen,  vs.  Mazyck  &  Bell,  3  Rich.,  215. 
e  Lawrin  vs.  Hanks,  3  McC,  558. 


27 

the  reply  has  none  of  the  characteristics  of  a  reply,  hut  is 
in  effect  the  leading  speech  in  the  cause,  which  the  adverse 
counsel  can  neither  anticipate  nor  reply  to.  This  marked 
difference  between  the  English  practice  and  ours,  as  to  the 
limits  of  a  reply,  has  materially  enhanced  its  value  with  us, 
and  sacrifices  are  made  to  obtain  it,  which  not  unfrequently 
hazard  the  success  of  the  cause.  The  general  rule  is,  that 
if  the  defendant  introduce  evidence,  the  plaintiff  is  entitled 
as  of  right  to  the  reply,  and  calling  back  plaintiff's  wit- 
ness, or  offering  and  reading  in  evidence  a  letter,  the  hand- 
writing of  which  is  admitted,  is  such  an  introduction  of  evi- 
dence, as  destroys  defendant's  right  to  the  reply,  (Hagood 
vs.  Cathcart,  Rice,  264  ;  Hamilton  vs.  Feemster,  4  Rich., 
576.)  If  the  defendant  introduces  no  evidence,  or  admit 
the  plaintiff's  case,  and  takes  upon  himself  the  burthen  of 
proof,  he  is  then  entitled  to  open  and  reply  ;a  but  the  admis- 
sion of  plaintiff's  right  of  action  must  be  entered  upon  the 
record.1'  When  there  are  several  issues,  some  of  which  are 
to  be  proved  by  the  plaintiff,  and  others  by  the  defendant, 
the  plaintiff  is  entitled  to  the  general  reply,  both  in  evi- 
dence and  argument.0 

The  case  having  been  argued  and  submitted  to  the  jury, 
and  verdict  found  and  published,  it  only  remains  in  order  to 
complete  the  proceedings,  to  enter  up  the  judgment.  This 
is  done  on  the  rising  of  the  Court,  see  11th  Rule  of  Court. 
The  object  of  this  rule  is  to  equalize  the  liens  of  all  judg- 
ments obtained  at  the  same  term,  and  to  prevent  chance  or 
the  accidental  position  of  a  case  on  the  docket  from  giving 
a  priority  of  lien.  The  rule  only  applies  to  cases  where  the 
judgment  of  the  Court  has  been  had,  for  if  the  defendant  has 
confessed  judgment,  whether  in  term  time  or  in  vacation, 
the  plaintiff  may  enter  up  judgment,  and  issue  execution 
immediately ;  it  is  immaterial  whether  the  case  on  which 
judgment  is  confessed  is  on  the  docket,  or  not.d 

a  62d  Rule  of  Court. 

b  Gray  vs.    Cottrell,  1   Hill,    38;  Johnson  vs.   Wideman,   Dudley,  326;  See  also 
Moses  vs.  Gatewood,  5  Rich.,  234. 
B  Anonymous,  1  Hill,  257. 
a  Bank  vs.  Magrath,  2  Spear,  305. 


28 

If  the  judgment  is  not  entered  up  at  the  rising  of  the 
Court,  as  provided  for  in  the  11th  Rule,  it  may  be  entered  up 
on  or  before  the  last  day  of  the  term  next  succeeding,  (Rule 
10,)  and  the  entry  of  the  judgment  thus  made,  relates  back 
to  the  term  at  which  the  judgment  was  had,  and  as  between 
the  parties  is  considered  as  if  made  during  that  term  ;  as 
between  judgment  creditors  of  the  defendant,  the  judgment 
takes  effect  from  the  date  of  the  entry.*  If  the  judgment 
is  not  entered  up  before  the  expiration  of  the  second  term, 
it  cannot  afterwards  be  entered  up  without  giving  a  term's 
notice  to  the  adverse  party,  or  his  attorney  of  his  intention 
so  to  do.b 

If  the  action  is  on  a  penal  Bond  the  judgment  is  entered 
up  for  penalty,  and  the  execution  following  the  judg- 
ment expresses  the  same  sum ;  there  is  endorsed,  how- 
ever, on  the  execution  a  memorandum  showing  the  true 
amount  due  on  the  bond.  In  all  other  cases  the  judg- 
ment is  entered  up  for  the  amount  found  to  be  due  by  the 
verdict  of  the  jury,  or  the  assessment  of  the  Clerk. 

It  is  proper  here  to  advert  to  the  practice,  in  case  either 
party  dies  pending  the  suit,  and 

1st.  Where  the  death  occurs  'prior  to  interlocutory  judgment 
had.  If  the  action  is  by  a  sole  plaintiff,  or  against  a  sole 
defendant,  the  action  abates  by  the  death  ;  but  if  the  cause 
of  action  survives,  the  action  may  be  brought  by  or  against 
the  personal  representatives  of  the  deceased.  But  where 
there  are  two  or  more  plaintiffs  or  defendants,  and  one  or 
more  of  them  die,  if  the  cause  of  action  survive  to  the  sur- 
viving plaintiff,  or  against  the  surviving  defendants,  the 
action  shall  not  abate,  but  the  death  being  suggested  on 
the  record,  the  suit  may  proceed  for  or  against  the 
survivors.0 

2d.  Where  the  death  occurs  after  interlocutory  judgment,  but 
before  assessment  of  damages.     If  the  action  could  have  been 

■  See  Dibble  vs.  Taylor,  2  Spear,  312:  Miller  &  Leckie  vs.  Jones,  2  Rich.,  393. 
b  10th  Rule  of  Court. 

c  Act  of  1746,  7  Stat.,  193;  Boylston  vs.  Cordes,  4  McC,  144;  Chapman  vs. 
Mary  ant,  2  Spear,  485. 


29 

originally  prosecuted  by  or  against  the  executor  or  adminis- 
trators of  the  deceased,  the  action  shall  not  abate,  but  a 
sci.  fa.  shall  be  issued  by  or  against  the  personal  represen- 
tatives of  the  deceased,  to  show  cause  why  the  damages 
should  not  be  assessed  and  recovered ;  and  if  the  defendant 
or  his  representatives,  (as  the  case  may  be)  do  not  appear, 
two  successive  writs  of  sci,  fa.  being  issued,  or  appearing, 
fail  to  show  cause,  a  writ  of  inquiry  shall  be  awarded  and 
executed,  and  final  judgment  entered  up,a  for  or  against  the 
executors  or  administrators  themselves,  and  not  for  or 
against  the  original  parties.  The  object  of  the  sci.  fa. 
being  to  make  the  representatives,  parties  to  the  suit,  in  the 
place  of  their  decedent.'' 

The  interlocutory  judgment  spoken  of  in  the  Act  of 
1746,  means  nothing  more  than  the  order  for  judgment  on 
default  either  of  appearance  or  plea.c  It  may  be  well  to 
note  that  the  final  judgment  entered  up  as  above  stated, 
does  not  rank  as  a  judgment  in  the  administration  of  the 
deceased's  estate,  for  the  debts  of  the  deceased  are  to  be  paid 
according  to  the  rank  which  they  occupied  at  his  death,  and 
an  interlocutory  judgment  not  being  a  judgment,  but  merely 
an  authority  to  have  the  plaintiff's  damages  assessed,  must 
be  placed  in  the  rank  which  it  occupies  as  a  cause  of  action, 
not  yet  come   to  judgment/ 

After  entering  up  the  judgment,  and  before  issuing  exe- 
cution, a  second  sci.  fa.  is  necessary  to  give  the  executors  or 
administrators  an  opportunity  to  plead  no  assets,  or  other 
matter,  in  their  defence.6 

.  3d.  Where  either  'party  dies  after  assessment  of  damages,  and 
before  final  judgment  entered.  In  such  case,  no  sci.  fa.  is 
necessary,  for  as  soon  as  the  verdict  has  been  rendered,  writ 
of  inquiry  executed,  assessment  made  by  the  Clerk,  judg- 
ment upon  demurrer  or  decree  in  sum.  pro.  pronounced,  the 


»  Act  of  1746,  7  Stat,,  193. 

b  Thomas  vs.  McElwee,  3  Strob.,  133  ;   Godbold  vs.  Gordon,  11  Rich.,  36. 

•  Duboso  vs.  Dubose,  Cheves  30;   Kincaidvs.  Blake,  1  Bail,  20. 

d  Thomas  vs.  McElwee,  3  Strob.,  135. 

e  Dibble  vs.  Taylor,  2  Spear,  313. 


30 

final  consideration  of  the  Court  has  been  had,  and  nothing 
remains  but  the  formal  entry  of  the  judgment  which  is 
made,  as  if  the  party  were  alive. a  The  judgment  may  be 
entered  up  at  any  time  during  the  vacation,  and  since  our 
Rule  of  Court  (11),  prescribing  the  last  day  of  the  term  as 
the  day  of  entry  of  judgments,  in  lieu  of  the  first,  as  by 
the  English  practice,  the  vacation  doubtless  extends  to  the 
last  day  of  the  term  following  the  final  order,  and  during 
such  vacation,  no  sci.  fa.  is  necessary  to  have  execution 
against  the  defendant.b  If  the  plaintiff  allow  the  vacation 
to  pass  without  entering  up  the  judgment,  he  cannot  after- 
wards enter  it  up  and  issue  execution  without  first  serving  a 
sci.  fa.  upon  the  executors  or  administrators,  to  show  cause 
why  execution  should  not  issue — for  by  the  lapse  of  time, 
the  execution  cannot  be  tested  as  in  the  lifetime  of  the 
defendant — and  where  execution  must  bear  test  as  of  a  day 
subsequent  to  the  date  of  defendant's  death,  then  sci.  fa.  is 
necessary  to  its  issuing.  It  is  only  when  the  execution  may 
be  tested  as  in  the  lifetime  of  defendant  that  a  sci.  fa.  is 
unnecessary.0 

4th.  Where  either  party  dies  after  final  judgment  entered,  up, 
but  before  execution  issued.  The  only  question  that  can  arise 
is  as  to  the  issuing  of  the  execution,  and  that  will  be  gov- 
erned by  the  rules  already  prescribed  for  the  entry  of  judg- 
ment, when  the  party  dies  after  assessment  of  damages,  and 
before  final  judgment  entered. 

If  either  party  is  dissatisfied  with  the  verdict  of  the  jury, 
or  the  ruling  of  the  Judge,  he  is  entitled  to  an  appeal  which 
is  secured  by  serving  the  Judge  and  opposite  counsel  on  the 
day  after  the  decision  of  the  cause,  with  a  notice  of  the 
grounds  on  which  he  appeals,  but  the  successful  party  is  at 
liberty,  notwithstanding  the  appeal,  to  enter  up  judgment 
and  lodge  execution  to  bind  the  property.  Rules  of  Court 
64  and  77. 


a  Dibble  vs.  Taylor,  2  Spear,  312;  Miller  &,  Leckie  vs.  Jones,  Ibid.,  319. 
b  Dibble  vs.  Taylor,  2  Spear,   314,    overruling  Verdicr  vs.    Fishburne,    1   Spear, 
348. 
«  Ibid. 


31 

The  8  §  of  the  Act  of  1856,  (12  Stat.,  489,)  passed  for  the 
purpose  of  preventing  frivolous  appeals,  allows  the  appeal  to 
operate  as  a  stay  of  execution,  only  in  cases  where  the  Judge 
grants  an  order  for  the  stay  of  execution,  or  the  appellant 
gives  bond.  This  Act  only  applies,  however,  to  Charleston 
district. 

Somewhat  has  already  been  said  as  to  execution  under 
certain  circumstances,  but  the  general  practice  as  to  the 
issuing  and  renewal  of  executions,  remains  to  be  treated  of. 
At  common  law,  the  plaintiff  could  not  issue  his  execution 
after  the  expiration  of  a  year  and  a  day  from  the  signing  of 
the  judgment,  without  reviving  the  judgment  by  set.  fa.;  but 
by  our  Acts  of  1815,  6  Stat.,  5 ;  and  1827,  6  Stat.,  324,  it  is 
provided  that  execution  can  issue  at  any  time  within  three 
years  next  after  the  signing  or  enrolment  of  the  judgment, 
and  has  active  energy  without  renewal,  from  the  time  it  is 
lodged  until  the  regular  term  of  the  Court,  which  shall 
follow  next  after  the  full  completion  of  four  years  from  its 
lodgment.  At  any  time  within  those  four  years,  it  may  be 
renewed  without  costs,  and  at  any  time  within  three  years 
from  the  expiration  of  its  active  energy,  it  may  be  renewed 
for  four  years  longer,  on  payment  of  costs  of  renewal/  The 
plaintiff  is  not  restricted  to  the  renewal  of  the  execution  first 
sued  out,  but  may  issue  a  ca.  sa.  as  a  renewal  of  nji.fa.,  or 
vice  versa.1'  It  is,  however,  provided  by  the  Act  of  1839,  (11 
Stat.,  76,  §  19,)  that  the  Clerk  shall  not  affix  the  seal  of  the 
Court  to  any  renewed  execution,  unless  the  one  previously 
issued,  shall  have  been  delivered  up,  or  unless  authorized  so 
to  do  by  a  Judge's  order. 

It  may  happen  that  the  defendant  does  not  reside  or  own 
property  in  the  district  in  which  the  judgment  is  rendered; 
in  that  case  the  execution,  instead  of  being  delivered  to  the 
Sheriff  of  the  district  in  which  the  judgment  is  had,  should 
be  sent  to  the  Sheriff  of  the  district  in  which  defendant 
resides,  or  his  property  is  to  be  found,  and  is  executed  by 


a  See  Ancrum  vs.  Sloan,  1  Rich.,  421 ;  Carlton  vs.  Felder,  6  Rich.  Eq.,  66. 
b  Robertson  vs.  Shannon,  2  Strob.,  434 ;  Douglas  vs.  Owens,  5  Rich.,  534. 


32 

the  Sheriff  of  that  district  who  makes  his  return  to  the 
Court  whence  the  process  issued,  (Act  of  1799,  7  Stat.,  294 ; 
Act  of  1785,  7  Stat.,  230 ;  Rule  12,)  for  as  has  already  been 
seen,  process  of  the  Superior  Court  of  the  State  runs  through- 
out the  State. 

The  plaintiff  has  his  election  to  issue  fi.  fa.  or  ca.  sa.,  or 
both  together ;  if  he  elects  to  issue  only  one  of  them,  he  can- 
not until  the  return  of  that  execution,  issue  the  other.*  If 
both  are  taken  out  together,  the  Sheriff  may  proceed  suc- 
cessively on  both,  and  he  need  not  return  a  partial  levy  on  the 
ji.  fa.,  before  proceeding  on  the  ca.  sa. ;  but  as  soon  as  it  is 
ascertained  that  the  levy  is  insufficient,  the  Sheriff  may 
either  make  a  further  levy,  or  execute  the  ca.  sa}  So,  too, 
an  arrest  under  a  ca.  sa.  is  prima  facie  a  satisfaction  of  the 
debt,  and  suspends  the  lien  of  the^.  fa.  pro.  tern.;  but  if  the 
defendant  dies  or  escapes,  the  lien  of  the  fi.  fa.  is  thereby 
revived.0 

But  it  may  happen  that  the  plaintiff  is  unwilling  to  press 
his  debtor,  but  at  the  same  time  is  desirous  of  preserving  his 
lien  and  its  priority ;  in  such  case  it  is  proper  to  lodge  the 
execution  (fi.  fa.)  with  the  Sheriff,  endorsing  on  it  the  words 
"wait  orders,"  or  "to  bind."  The  endorsement  only  sus- 
pends the  active  energy  of  the  execution,  and  does  not  affect 
its  lien  ;  and  if  a  levy  is  made  under  a  junior  execution,  the 
proceeds  will  go  to  the  older  execution,  notwithstanding  the 
suspension  of  its  active  energy.*1 


SUM.  PRO. 

To  entitle  a  writ  to  issue,  the  cause  of  action  must  exceed 
£20,  equivalent  to  $85  71.    For  the  recovery  of  that  amount, 


'Jenkins  vs.  Mayrant,  3  McC,  560;  State  vs.  Guignard,  1  McC,  176. 
b  Mazyck  &  Bell  vs.  Coil,  2  Bail,  101. 

0  Mazyck  &  Bell  vs.  Coil,  3  Rich.,  236  ;  Sanders  vs.  McCool,  1  Strob.,  22. 
d  Vance  vs.  Red,  2  Spear,  92;  Cooper  vs.  Scott,  2  McM.,  155;  Gleenwood  vs.  Nay- 
lor,  1  McC,  414. 


33 

or  any  sum  under  that,  and  above  $20,  the  remedy  is  by  sum- 
mary process,  according  to  the  Act  of  1768,  7  Stat.,  200, 
which  provides  "that  it  may  be  lawful  for  the  Judges  in  said 
Courts,  or  any  of  them  to  determine  without  a  jury  in  a 
summary  way,  on  petition,  all  disputes  cognizable  in  said 
Courts,  for  any  sum  not  exceeding  X20  sterling,  except 
where  the  title  of  lands  may  come  in  question."  The  Act 
further  provides  for  a  trial  by  jury,  when  demanded  by 
either  party,  and  that  the  petition  shall  contain  "  the  plain- 
tiff's charge  or  demand  plainly  and  distinctly  set  forth,  a  true 
copy  whereof  shall  be  served  on  the  defendant."  The  prac- 
tice in  sum.  pro.  differs  but  little  from  cases  commenced  by 
writ.  Some  few  matters,  however,  require  notice,  and  I  shall 
allude  to  them  in  order,  as  they  regard  the  jurisdiction,  the 
pleadings,  the  interrogatories,  and  the  judgment.  The  juris- 
diction, as  has  been  seen,  comprises  all  sums  over  $20,  and 
up  to  $85  71,  inclusive.  If  the  cause  of  action  exceeds  this 
last  mentioned  sum,  the  Court  cannot  entertain  jurisdiction 
of  it,  and  plaintiff  cannot  release  part  of  his  debt,  or  the 
defendant  part  of  his  discount,  in  order  to  bring  the  amount 
due  within  the  sum,  pro.  jurisdiction  of  the  Court.a  It  is 
immaterial  whether  the  excess  is  caused  by  the  amount  of 
the  demand,  or  by  the  interest  accruing  on  it ;  it  is  in  either 
event  beyond  the  jurisdiction.15  Where,  however,  the  plain- 
tiff sues  on  a  note  originally  within  the  jurisdiction,  but  the 
interest  accruing  since  the  commencement  of  the  suit  swells 
it  beyond  the  jurisdiction,  the  plaintiff  may  either  take  judg- 
ment to  the  extent  of  the  jurisdiction,  or  he  may  declare,  and 
transfer  the  cause  to  the  general  jurisdiction.0  If  the  suit  is 
on  a  note  or  other  cause  of  action,  originally  beyond  the 
jurisdiction,  but  reduced  within  it  by  payments  or  credits,  it 
is  for  the  defendant  to  show  that  the  receipts  or  credits  are 
colorable.*  If  the  action  is  on  a  bond,  and  the  condition  is 
within  the  sum.  pro.  jurisdiction,  the  plaintiff  may  sue  on 

a  Simpson  vs.  McMillion,  1  N.  &  McC,  192 ;  Bents  vs.  Graves,  3  McC,  280. 
»  1  N.  &  McC,  192. 

0  Gracy  &  Co.  vs.  Wright,  2  McC,  278 ;   Taylor  vs.  Purvis,  1  Hill,  373. 
«  Fiske  ads.  Guerard,  2  MeC.,11;  Taylor  vs.  Purvis,  1  Hill,  373. 

3 


34 

the  condition,  notwithstanding  'the  penalty  exceeds  the  juris- 
diction ; a  so,  too,  where  the  action  is  on  an  official  bond,  and 
the  damages  laid  are  within  the  jurisdiction,  the  suit  may  he 
brought  by  summary  process,  regardless  of  the  penalty.b  If 
the  defendant  in  sum.  pro.  has  a  discount  which  exceeds  the 
summary  jurisdiction,  the  Court  on  being  satisfied  of  the 
merits,  will  order  the  plaintiff  to  declare  in  the  higher  juris- 
diction, to  enable  the  defendant  to  set  up  his  discount ; c  but 
the  Court  will  not  make  the  order,  unless  injustice  would  be 
done  by  refusing  the  motion,  or  the  law  prohibits  the  dis- 
count set  up  from  being  tried  in  that  jurisdiction,  as  e.  g., 
where  the  discount  involves  the  title  to  land,  which  by  the 
Act  is  exempted  from  sum.  pro.  jurisdiction."1 

The  plaintiff  in  sum.  pro.  may  insert  in  his  petition 
several  counts  upon  the  same  cause  of  action,  and  it  is 
immaterial  that  the  aggregate  amounts  exceed  the  jurisdic- 
tion, provided  no  single  count  does,  but  if  evidence  is  given 
of  a  debt  beyond  the  jurisdiction,  the  plaintiff  must  fail.6 
So,  too,  the  plaintiff  may  join  in  the  same  petition  several 
distinct  causes  of  action  of  the  same  nature,  provided  the 
aggregate  does  not  exceed  the  sum.  pro.  jurisdiction. 

Where  the  plaintiff's  demand  has  been  reduced  below  the 
sum.  pro.  jurisdiction  by  discounts,  or  by  payments  made 
after  suit  commenced,  the  practice  is  to  give  a  decree  for  the 
balance  due/  In  all  other  cases  ex  contractu,  if  the  debt. is 
reduced  below  the  sum.  pro.  jurisdiction,  a  nonsuit  should 
be  ordered  by  the  Circuit  Court.8 

The  Act,  it  will  be  observed,  simply  requires  that  the 
"Petition  shall  contain  the  plaintiff's  charge  or  demand, 

a  Lynch  vs.  Crocker,  2  Bail.,  313. 

b  Treasurers  vs.  Walker,  2  Hill,  629. 

0  Beckham  &  Eckles  vs.  Peay,  1  Bail.,  121. 

d  Executors  of  Lindsay  vs.  Lindsay,  1  McC,  490;  Simpson  ads.  Kuox,  2  Spear, 
632. 

e  Lee  vs.  Foot,  2  Bail.,  112. 

f  Steamer  St.  Matthews  vs.  Mordecai,  1  McM.,  296 ;  Vaughan  vs.  Cade,  2  Rich., 
49  ;  Caldwell  vs.  Garmany,  3  Hill,  203. 

s  Owens  vs.  Curry,  3  Strob.,  262,  overruling  Vaughan  vs.  Cade,  2  Rich.,  49; 
Goodwin  vs.  Lake,  2  Rich.,  565,  and  other  cases  authorizing  verdict  for  defendant 
under  similar  circumstances. 


35 

plainly  and  distinctly  set  forth,"  and  technical  precision  is 
not  necessary ;  it  is  essential,  however,  that  the  cause  of 
action  should  be  set  out  with  sufficient  certainty  to  prevent 
a  surprise  on  the  defendant ; a  and  as  a  copy  of  every  deed, 
bond,  open  account,  or  other  writing  declared  on,  must  be 
annexed  to,  or  endorsed  not  only  on  the  original  petition, 
but  also  on  the  copy  served  on  defendant,11  a  very  slight 
degree  of  attention  will  prevent  uncertainty  in  the  statement 
of  the  cause  of  action.  If  the  body  of  the  process  sets  forth 
the  cause  of  action,  specifically,  no  copy  or  bill  of  particu- 
lars need  be  added.0 

If  the  suit  is  against  an  endorser,  it  is  sufficient  to  state 
that  the  defendant  is  indebted  as  endorser,  and  a  formal 
averment  of  demand  on,  and  refusal  by  the  maker,  and 
notice  to  the  endorser  is  unnecessary. d  If  on  a  former  judg- 
ment, or  on  a  foreign  judgment,  the  plaintiff  must  annex  a 
copy  of  the  judgment  both  on  the  original  and  the  copy 
petition.6 

If  the  plaintiff  relies  on  a  specific  promise  distinct  from  a 
general  assumpsit,  he  must  set  it  forth  in  his  process  or  evi- 
dence of  it  cannot  be  admitted/  So,  too,  if  there  is  a 
special  defence  to  the  action,  it  must  be  specially  pleaded, 
for  notwithstanding  the  latitude  allowed  in  the  sum.  jwo. 
jurisdiction,  special  matters  of  defence  cannot  be  given  in 
evidence  under  the  general  issue.8 

The  distinctive  feature  of  the  sum.  pro.  jurisdiction  is  the 
right  which  either  party  has  to  purge  the  conscience  of  his 
adversary  by  a  short-hand  bill  of  discovery.  The  34th  Rule 
of  Court  provides  that  "  if  the  plaintiff  shall  desire  to  have 
the  benefit  of  the  defendant's  oath,  he  shall  state  in  writing 
the  points  to  which  he  shall  require  his  oath,  and  serve  him 
with  a  copy  thereof,  with  notice  of  such  intention,  at  least 

n  Parker  vs.  Martin,  1  Bail.,  138. 

*>  35th  Rule  of  Court. 

c  Hagood  vs.  Mitchell,  1  Bail.,  124. 

d  Hilburn  vs.  Paysinger,  1  Bail.,  97. 

e  Bailey  vs.  Wilson,  1  Bail.,  15;  Parker  vs.  Martin,  Ibid,  138. 

f  McDaniel  vs.  Scoggins,  2  Mills,  227. 

«  Bailey  vs.  Wilson,  1  Bail.,  15. 


36 

one  day  before  the  hearing  of  the  cause,  and  the  defendant 
may  either  give  his  answer  in  writing,  sworn  to  before  the 
Clerk,  or  ore  terms  in  open  Court.  And  if  a  defendant  shall 
desire  the  benefit  of  the  plaintiff's  oath,  he  shall  proceed  to 
require  it  in  the  same  manner."  If  either  party  is  absent 
from  the  State,  and  his  evidence  is  material,  the  Court  will 
grant  a  term's  delay,  that  a  commission  may  issue  to  exam- 
ine him. 

The  Rule  once  was  as  laid  down  in  Wallace  k  Welbourn 
vs.  Norrell,  1  Bail.,  125,  that  a  party  in  summary  process 
cannot  compel  the  opposite  party  to  answer  interrogatories 
if  it  appears  that  there  exist  legal  evidence  of  the  matter 
enquired  of.  That  Rule  is  now  changed  and  the  existence 
or  absence  of  other  legal  evidence  does  not  seem  to  affect  the 
right  of  a  party  to  compel  the  opposite  party  to  answer 
interrogatories.*  If  the  party  on  whom  the  interrogatories 
are  served,  fails  to  answer,  the  matters  may  be  taken  against 
him  pro  cowfesso.b  In  general  the  party  serving  interroga- 
tories to  be  considered  as  in  equity,  seeking  a  discovery, 
and  to  be  governed  by  the  Rules  of  equity  pleading,  and, 
accordingly,  where  to  an  action  the  plea  is  the  statute  of  limi- 
tations, the  defendant  cannot  be  asked  if  he  has  not  subse- 
quently promised  to  pay  the  debt.0  But  where  the  plaintiff 
served  interrogatories,  and  the  defendant  filed  his  answer 
with  the  Clerk,  the  plaintiff  may,  nevertheless,  decline  to 
offer  the  answer,  and  rely  upon  other  evidence  to  establish 
his  claim  ;d  if,  however,  he  uses  the  answer  to  the  interro- 
gatories, he  must  rely  upon  that  alone  and  cannot  resort  to 
other  evidence.6  If  the  defendant,  in  lieu  of  written  res- 
ponses, answers  ore  tenus,  he  can  only  be  required  to  answer 
to  the  matters  propounded  in  the  interrogatories,  and  can- 
not be  cross  examined  by  his  own  counsel/ 

a  Brown  vs.  Stroud,  8  Rich.,  292 ;  Harrison  vs.  Dodson,  11  Rich.,  48. 
b  Walker  vs.  Mathaney,  Harp.,  167;  Roche  vs.  Chaplin,  1  Bail.,  276;  Fillmore  & 
Gamble  vs.  Cockfield,  2  Bail.,  446 ;  Brown  vs.  Stroud,  8  Rich.,  292. 
c  Holly  vs.  Thurston,  Rice,  282  ;  Lewis  vs.  Kemp.,  6  Rich.,  515. 
d  Henkin  vs.  Gramman,  2  Rich.,  365. 
*  Harrison  vs.  Dodson,  11  Rich.,  48. 
f  Hill  vs.  Denny,  1  Strob.,  338. 


37 

The  interrogatories  must  be  served  personally  upon  the 
party  to  the  record.  Service  upon  the  attorney,  even 
though  the  principal  is  absent  from  the  State,  is  insufficient/ 

It  is  not  usual  to  enter  up  judgment  on  summary  pro- 
cess, in  regular  form.  The  presiding  Judge  enters  an  order 
for  a  decree  on  the  Docket,  from  whence  the  Clerk  enters 
the  decree  on  the  minutes  of  the  Court.  And  that  is  the 
only  judgment  ever  entered  up,  and  is  sufficient. b  The 
entry  of  the  decree  on  the  minutes  is  the  judgment,  and 
where  from  any  cause  the  Clerk  has  failed  to  enter  the 
decree  on  the  minutes,  there  is  no  judgment,  nor  will  a 
motion  to  amend  by  entering  up  judgment  nunc  -pro  tunc  be 
granted,  for  there  is  nothing  to  amend  by,  their  being  no 
evidence  of  a  judgment,0  If,  however,  the  judgment  is  by 
confession  during  vacation,  then  the  confession  endorsed  on 
the  process  and  signed  by  the  defendant,  is,  it  seems,  a 
sufficient  j  udgment  in  such  case.d 


BAIL. 


Having  sketched  the  progress  of  a  suit  from  its  inception 
to  its  termination,  I  must  now  retrace  my  steps  for  a 
moment,  to  allude  to  matters  connected  with  the  commence- 
ment of  a  suit,  which  could  not  be  treated  of  previously 
without  some  confusion.  So  far  the  defendant  has  been 
brought  into  Court  by  the  service  upon  him  of  the  ordinary 
capias  ad  respondendum,  but  the  plaintiff  may  desire  to  have 
some  security  for  the  defendant's  appearance,  to  answer  the 
charge.  This  is  accomplished  by  means  of  a  Bail  Writ, 
and  as  the  law  and  practice  in  matters  of  bail  in  this  State 
differ  widely  from  those  of  the  English  Courts,  it  is  neces- 

a  Bartoline  vs.  Heath,  2  Bail.,  196. 

b  Gage  vs.  Santon,  2  Mills.  247;  Foster  vs.  Chapman,  4  McC,  291. 
c  MeCall  vs.  B.iatwright,    2  Hill,  438 ;  Brown   vs.   Coward,  3  Hill,  4 ;  Evans   vs. 
Hind,  1  MeM.,  493. 
d  Manning  vs.  Dove,  10  Rich.,  3fl5. 


38 

sary  to  be  a  little  more  minute  in  our  investigation,  than 
comports  strictly  with  the  design  of  this  sketch. 

According  to  the  English  law,  bail  is  either  common  or 
special.  It  is  also  further  divided  into  bail  to  the  Sheriff 
and  bail  to  the  action.  Common  bail,  whether  to  the 
Sheriff  or  to  the  action,  obtains  only  in  matters  of  small 
importance,  and  consists  of  mere  imaginary  persons — the 
John  Doe  and  Richard  Roe  of  legal  notoriety.  But  if 
the  plaintiff  will  make  affidavit  that  the  cause  of  action 
amounts  to  £20  or  upwards,  then  he  may  have  the 
defendant  arrested,  and  committed  to  jail  for  safe  custody, 
or  compel  him  to  put  in  substantial  sureties  for  his  appear- 
ance at  the  return  of  the  writ.  This  is  called  Special  Bail 
to  the  Sheriff,  or  bail  below,  and  the  bond  to  the  Sheriff  is 
a  Bail  Bond. 

On  the  return  of  the  writ,  the  defendant  must  appear, 
and  the  appearance  is  effected  by  putting  in  bail  to  the  action. 
This  is  done  by  two  or  more  substantial  sureties  entering 
into  recognizance  that  the  defendant,  if  condemned  in  the 
action,  wall  pay  the  costs  and  condemnation,  or  render  him- 
self a  prisoner,  or  that  they  will  pay  it  for  him.  This  is  a 
special  bail  to  the  action,  or  bail  above,  and  the  recogni- 
zance entered  into  is  styled  a  Bail  piece. 

If  the  defendant,  having  given  bail  to  the  Sheriff,  fails  to 
put  in  special  bail  to  the  action,  the  plaintiff  may  discon- 
tinue his  proceedings  against  the  defendant,  who  by  his 
failure  to  put  in  bail  to  the  action,  is  not  entitled  to  enter 
appearance,  and  therefore  not  a  party  in  Court,  and  take  an 
assignment  from  the  Sheriff  of  the  bail  bond,  and  proceed 
against  the  bail,  or  if  they  are  insolvent,  he  may  proceed 
against  the  Sheriff  for  a  breach  of  duty  in  taking  an  insuf- 
ficient bond. 

Such  was  the  law  and  practice  of  this  State  until  the  Act 
of  1785,  7  Stat.,  215.  A  prior  Act,  that  of  1769,  (P.  L. 
273,)  had  provided  that  "no  person,  except  transient  per- 
sons, shall  hereafter  be  held  to  bail  for  any  sum  less  than 
£50  current  money,  ($30  61-100— see  2  McC,  385,)  and  no 
person  shall  be  held  to  bail  for  debt  unless  an  affidavit  shall 


39 

be  made  before,  and  attested  by,  some  Judge  or  Justice  of 
the  Peace,  and  endorsed  on,  or  annexed  to,  the  writ.  The 
10  §  of  the  Act  of  1785,  reciting  the  practice  that  obtained 
in  the  State  of  permitting  the  plaintiff,  (on  default  of  defend- 
ant to  appear,)  to  discontinue  proceedings  against  the  defend- 
ant, and  commence  fresh  actions  against  the  bail,  enacted 
that  where  the  defendant  gives  bail  for  his  appearance,  and 
makes  default,  the  suit  shall  be  prosecuted  to  judgment  and 
execution  against  the  defendant,  before  any  proceeding  shall 
be  had  against  the  common  bail ;  and  if  the  Sheriff  shall 
return  non  est  inventus  or  nulla  bona  on  executions  against  the 
defendant,  the  plaintiff  may  have  sci.  fa.  against  the  Bail,  to 
show  cause  why  execution  for  judgment  and  costs  should  not 
issue  against  them.  Provided,  that  nothing  herein  contained 
shall  be  construed  to  deprive  the  common  bail  in  such  actions 
from  appearing  and  entering  himself  special  bail,  at  any 
time  before  judgment  in  such  action  shall  be  signed. 

This  clause  of  the  Act  of  1785,  introduced  the  following 
alterations  in  the  old  law  : a 

1st.  It  gave  the  name  of  Common  Bail  to  the  bail  to  the 
Sheriff,  and  applied  the  term  Special  Bail  exclusively  to  bail 
to  the  action. 

2d.  It  recpiired  the  plaintiff  to  prosecute  his  action  to 
judgment  and  execution  against  the  defendant,  before  he 
could  resort  to  the  bail. 

3d.  It  gave  the  common  bail  the  privilege  of  appearing 
and  entering  himself  special  bail,  at  any  time  before  final 
judgment  against  the  defendant. 

4th.  It  authorized  the  plaintiff  to  proceed  against  the  bail 
by  scire  facias  instead  of  bringing  an  action  on  the  bond — 
the  former  remedy  by  action  on  the  bond  still,  however, 
remaining  unimpaired  by  the  Act.b 

By  the  Act  of  1809,  (7  Stat.,  309,)  the  distinction  between 
common  and  special  bail  was  still  further  obliterated,  and 
may  now  be  considered  as  entirely  destroyed  except  in  the 

a  Pepoon  rs.  Mooney,  1  Mills,  314,  and  Judge  Xott's  Lecture  on  Bail,  Appendix  to 
3  Strob.,017. 
b  Quatcruias  ads.  Hawkins,  1  N.  &  McC,  323. 


40 

single  instance  of  bail  for  a  woman. a  That  Act  provides 
that  the  bail  to  the  Sheriff  (the  common  bail  according  to 
the  Act  of  1785,)  shall  be  entitled  to  all  the  rights,  privi- 
leges and  powers  of  special  bail,  and  may  surrender  his 
principal  in  discharge  of  himself,  or  the  principal  surrender 
himself  in  discharge  of  his  bail  in  the  same  manner  and 
to  the  same  extent  as  special  bail  are  now  entitled  to  ;  and 
further  that  "the  bail  need  not  obtain  a  Judge's  order  for 
leave  to  surrender  his  principal." 

Having  shown  the  Statute  law  on  the  subject,  I  proceed 
to  the  practice.  The  plaintiff,  if  desirous  of  holding  the 
defendant  to  bail  in  an  action  arising  on  a  contract,  must 
endorse  on  or  annex  to  the  writ  an  affidavit,  setting  forth 
the  amount  really  due,  and  the  nature  of  the  debt  or 
demand.b  The  office  of  the  affidavit  is  to  furnish  reason- 
able proof  of  the  nature,  amount  and  justice  of  the  debt, 
first  to  enable  the  Court  to  see  that  the  plaintiff  has  a  good 
legal  cause  of  action,  for  a  sum  certain  before  a  citizen  is  by 
legal  process  deprived  of  his  liberty;  and  second,  to  inform 
the  defendant  of  the  claim,  so  as  to  enable  him  to  admit  its 
justice  and  pay  it,  or  to  contest  it  by  giving  bail  and  defend- 
ing the  action.0  It  is  proper,  therefore,  to  set  forth  in  the 
affidavit,  concisely  but  clearly,  the  nature  and  amount  of  the 
debt.  If  on  promissory  note  or  bill  of  exchange,  state  the 
date  and  place  of  making,  how,  where  and  when  payable, 
the  amount  and  the  nature  of  the  defendant's  liability  on 
the  paper  whether  as  maker,  drawer,  acceptor  or  indorser. 
An  affidavit  setting  forth  simply  that  defendant  was  indebted 
to  the  plaintiff  in  the  sum  of  $145  on  a  promissoiy  note 
bearing  date  June  14,  1852,  has  been  held  sufficient ; d  but  it 
is  proper  to  avoid  the  possibility  of  error  by  making  the 
affidavit  concisely  full  and  explicit.  If  for  goods  sold  and 
delivered,  state  the  indebtedness  as  for  goods  sold  and  deliv- 


a  Ancrum  vs.  Sloan,  1  Rich.,  422. 

11  Peck  &  Hood  vs.  Van  Evour,  IN.  A  McC,  580 ;  Note,  Brisac  vs.  Moorer,  Dud- 
ley, 229. 

0  Sanders  vs.  Hughes,  2  Bail.,  506. 

d  Rosenberg  vs.  McKaiui,  3  Rich.,  148 ;  Tobias  vs.  Wood,  1  McM.,  103. 


41 

ered,  and  in  like  manner  through  the  various  money  counts 
in  assumpsit,  and  close  the  affidavit  with  a  general  averment 
that  the  said  debt  remains  wholly  unpaid,  and  is  still  due 
and  owing  to  the  said  plaintiff. 

In  general  the  affidavit  should  be  made  by  the  plain- 
tiff himself,  and  he  decided  and  positive  in  stating  the 
existence  of  the  debt ;  but  if  the  plaintiff  resides  beyond 
the  State  the  affidavit  may  be  made  by  his  agent,  and 
to  the  effect  that  he  is  informed  and  believes  that  the  de- 
fendant is  indebted  to  the  plaintiff,  &c.  So  too,  if  plaintiff 
sues  in  autre  droit,  the  affidavit  need  only  be  as  to  his  belief 
and  information.  When  the  plaintiff  is  beyond  the  State, 
the  affidavit  may  (it  is  presumed),  be  made  by  the  attorney 
in  the  case,  or  his  agent.a  The  affidavit  being  endorsed  on 
or  attached  to  the  writ,  the  Writ  is  endorsed,  "take  bail,  see 
affidavit  annexed, "  and  is  ready  for  the  Sheriff. 

If  the  cause  of  action  arises  ex  delicto,  or  for  any  other 
cause  than  debt,  the  plaintiff  must  swear  to  the  circum- 
stances of  the  case  and  obtain  a  special  order  for  bail  from 
a  Judge  or  Commissioner  of  special  bail,  specifying  the 
sum  in  which  the  defendant  is  to  be  bound.b  Every  Clerk 
of  Court  is  ex-offieio  a  Commissioner  of  special  bail,c  and 
where  the  Clerk  cannot  act,  from  sickness,  absence,  or 
interest,  any  magistrate  is  authorized  to  act  as  Commis- 
sioner.11 The  order  for  bail  is  all  that  need  be  endorsed  on 
the  writ  and  the  affidavit,  on  which  the  order  was  granted, 
need  not  appear.6  When  the  requisites  above  set  forth  are 
complied  with,  it  is  the  duty  of  the  Sheriff  to  arrest  the 
defendant  and  commit  him  to  jail,  or  to  take  a  good  and 
sufficient  bail  bond. 

If  the  affidavit  upon  which  the  defendant  has  been  held  to 
bail  is  defective,  the  proper  method  of  taking  advantage  of 
it,  is  for  the  defendant  to  move  at  the  return  term  of  the 

a  Treasurers  vs.  Barksdale,  1  Hill,  272;  Kerr  vs.  Phillips,  2  Rich.,  199. 

b  Act  of  176S,  £  20,  7  Stat.,  204  ;  for  form  of  order  see  Miller's  Compilation,  p.  170. 

c  Act  of  1839,  11  Stat.,  78,  §  32. 

d  Act  of  1839,  11  Stat.,  20,  \  21. 

e  Brissac  vs.  Moorer,  Dudley,  231. 


42 

writ,  to  enter  an  exoneretur  on  the  bail  bond.  After  plea  and 
judgment  the  defendant  will  not  be  allowed  to  object  to  any 
irregularity  in  the  affidavit;  nor  can  the  bail  object  when 
the  principal  himself  is  precluded,0,  for  the  rule  requiring 
the  cause  of  action  to  be  set  forth  in  the  affidavit  is  merely 
a  rule  of  practice  adopted  by  the  Court  for  the  protection  of 
the  liberty  of  the  citizen,  and  does  not  extend  to  protect  the 
bail.  The  bail  may,  however,  take  advantage  of  any  matter 
which  renders  the  order  for  bail  absolutely  void.  So,  too, 
the  bail  may  have  an  exoneretur  entered  on  the  bail  bond  if 
there  is  a  variance  between  the  affidavit  and  the  bond,  on 
making  affidavit  that  he  was  ignorant  that  the  cause  of 
action  declared  on  was  the  one  intended  to  be  embraced  in 
the  affidavit ;  that  he  executed  the  bail  bond,  believing  the 
cause  of  action  was  different  from  the  one  set  out  in  the 
declaration,  and  that  he  has  sustained  some  injury  or  preju- 
dice thereby.  (76th  Rule  of  Court.)  The  variance  to  enti- 
tle the  bail  to  have  the  exoneretur  entered,  "must  be  by 
declaring  on  a  totally  distinct  cause  of  action  from  that 
stated  in  the  affidavit.  If  there  is  no  cause  of  action  stated 
in  the  affidavit  there  can  be  no  variance." b  In  such  case  if 
the  principal  plead  to  the  original  action,  there  is  no  redress 
for  the  bail,  for  there  is  no  variance  to  be  taken  advantage 
of;  and  the  principal  having  waived  the  objection  by  plead- 
ing, the  bail  is  estopped  also.  The  case  of  Sanders  vs. 
Hughes,  already  noticed,  prescribes  the  practice  afterwards 
established  in  the  76th  Rule  of  Court. 

Having  shown  the  manner  of  obtaining  bail,  it  may  not 
be  altogether  superfluous  to  glance  at  the  liability  incurred 
by  the  bail,  and  the  time  when  that  liability  becomes  iixed. 

The  undertaking  of  the  bail  is  in  the  triple  alternative  as 
has  been  already  stated,  viz :  that  the  defendant  if  con- 
demned, will  pay  the  costs  and  condemnation,  or  surrender 
himself,  or  that  they  will  pay  it  for  him. 

The  Act  of  1785,  (7  Stat,,  215,)  commands  the  plaintiff  to 
prosecute  his  suit  to  judgment,  and  issue  execution  against 

a  Sanders  vs.  Hughes,  2  Bail.,  506.  b  Sanders  vs.  Hughes,  2  Bail.,  510. 


43 

the  defendant,  and  gives  him  the  right  to  proceed  against 
the  bail  only  on  non  est  inventus,  or  nulla  bona  returned  on  the 
executions. 

The  Act,  it  will  be  observed,  says,  that  "if  the  Sheriff 
return  upon  the  execution,  that  the  defendant  is  not  to  be 
found,  or  hath  no  effects  whereon  to  levy  the  debt,  then  the 
plaintiff  may  sue  forth  a  scire  facias."  From  this  it  might 
be  inferred  that  a  return  of  nulla  bona  to  nji.fa.  would  be 
sufficient  to  authorize  sci.  fa.  against  the  bail ;  and  such  is 
in  fact  the  rule,  where  the  principal  is  a  female,  and  cannot, 
according  to  the  Act  of  1824,  (6  Stat.,  237,)  be  arrested 
on  ca.  sa.;*  but  in  all  other  cases  the  liability  of  the  bail  is 
fixed  by  the  return  of  non  est  inventus  to  a  ca.  sa.  and  no  fi.  fa. 
need  issue.b 

Simple  as  the  proposition  appears  to  be,  that  bail  are  fixed 
by  the  return  of  non  est  inventus  to  a  ca.  sa.,  great  difficulty 
has  been  experienced  in  determining  when  the  ca.  sa.  may 
be  returned,  so  as  to  fix  the  bail.  It  was  the  opinion  of 
Judge  Richardson  in  Davitt  vs.  Counsel,  2  1ST.  &  McC, 
137,  that  the  ca.  sa.  could  not  be  returned  for  the  purpose  of 
fixing  bail  until  the  return  day  of  process,  which  by  the  Act 
of  1799,  was  fifteen  days  before  the  sitting  of  the  Court; 
and  to  the  same  effect  is  the  opinion  of  Judge  Johnson  in 
Sanders  vs.  Bobo,  2  Bail.,  492,  whilst  on  the  other  hand, 
Judge  O'Neall  intimated  in  Sanders  vs.  Hughes,  2  Bail.,  513, 
that  the  ca.  sa.  need  only  remain  in  the  Sheriff's  office  suf- 
ficiently long  enough  to  enable  that  officer  to  satisfy  himself 
that  the  defendant  was  not  in  his  bailiwick,  and  that  upon 
the  return  of  non  est  inventus,  the  plaintiff  might  proceed 
forthwith  against  the  bail.  The  law  thus  remained  unsettled, 
until  the  case  of  Ancrum  vs.  Sloan,  1  Rich.,  421,  when  the 
point  directly  arose,  and  necessitated  a  construction  of  the 
Act  of  1827,  6  Stat.,  324.  By  that  Act,  executions  were 
thenceforth  made  "returnable  according  to  law,"  instead  of 
to  a  fixed  day  as  previously.     The  second  section  of  the  Act 

a  See  Jarvis  vs.  Gilberson,  Dudley,  223  ;  Jarvis  vs.  Alexander,  Cheves,  147. 
b  Broadus  vs.  Welsh  &  Carter,  2  N.  &  McC,  569;  see  also  Jarvis  vs.  Alexander, 
Cheves,  147. 


44 

also  provided  that  "the  Sheriff  shall  at  each  regular  term  of 
the  Court,  during  the  active  energy  of  the  execution,  return 
the  manner  in  which  he  has  executed  the  process,  and  the 
return  of  the  said  officer  made  as  aforesaid,  shall  for  the 
fixing  of  bail,  have  the  same  legal  effect  as  if  the  process 
had  been  made  returnable  to  the  term  succeeding  its  first 
lodgment;"  and  the  Court  held  that  a  return  of  non  est 
inventus  could  not  be  made  on  a  ca.  sa.,  so  as  to  fix  the  lia- 
bility of  the  bail  before  the  return  day  of  the  ca.  sa.,  which 
return  day  was  the  first  day  of  the  term  succeeding  its  first 
lodgment  with  the  Sheriff';'1  and  as  the  whole  term  is  in  con- 
templation of  law  indivisible,  and  but  a  single  day,b  the  bail 
cannot  be  fixed  until  the  close  of  the  return  term  of  the  ca. 
sa.;  and  during  the  whole  of  that  term  the  bail  may  dejure 
surrender  their  principal  in  discharge  of  themselves.0 

When  bail  are  once  fixed,  the  debt  of  the  principal 
becomes  their  debt,  and  the  discharge  or  death  of  the  prin- 
cipal cannot  affect  their  liability.*1 

Notwithstanding  that  the  bail  are  fixed  by  the  return  of 
the  ca.  sa.,  and  their  right  de  jure  to  surrender  their  princi- 
pal gone,  they  still  have  ex  gratia  a  longer  time  within  which 
they  may  make  the  surrender  in  discharge  of  themselves.6  In 
Davitt  vs.  Counsel,  2  N.  &  McC,  137,  they  were  held  enti- 
tled to  the  whole  of  the  first  term,  after  service  of  the  writ 
upon  them,  or  to  the  return  term  of  the  sci.  fa.,  within  which 
to  surrender  their  principal^  or  such  surrender  may  be 
made  even  after  ca.  sa.  returned  and  bail  bond  assigned,  and 
that  without  any  previous  order  of  the  Court ;  although  if 
made  after  the  return  of  the  ca.  sa.,  an  order  of  Court  is 
necessary  to  confirm  it  and  give  it  effect.  The  reason  as 
given  by  Judge  Wardlaw,8  is  that  a  render  before  ca.  sa. 
returned,  may  be  pleaded  in  bar  of  plaintiff's  action  against 

a  Ancrum  vs.  Sloan,  1  Rich.,  421. 

b  Sanders  vs.  Bobo,  2  Bail.,  494. 

c  Glover  vs.  Gomillion,  2  Rich.,  555  ;  Watson  vs.  Bancroft.  4  Strob.,  218. 

d  Sanders  vs.  Bobo,  2  Bail.,  492  ;  Gordon  and  Spring  vs.  Liepman,  3  McC,  49. 

e  Ibid. 

f  See  also  Sanders  vs.  Hughes,  2  Bail.,  514 ;  and  Glover  vs.  Gomillion,  2  Rich.,  557. 

8  Glover  vs.  Gomillion,  2  Rich.,  557. 


45 

the  bail;  but  by  the  return  of  the  ca.  sa.,  the  liability  of  the 
bail  is  fixed,  and  the  surrender  after  such  return  is  ex  gratia, 
and  cannot  be  pleaded  in  bar,  but  must  be  made  effective 
by  a  Judge's  order  showing  that  the  indulgence  of  the  Court 
had  been  granted.  The  explanation  shows  the  necessity  of 
an  order,  and  the  order  is  permitted  to  be  subsequent,  out 
of  indulgence  to  the  bail. 

In  Watson  vs.  Bancroft,1  the  Court  advanced  one  step 
further,  and  considered  the  right  of  the  bail  to  surrender 
their  principal  at  any  time  within  the  term  to  which  the  sci. 
fa.  was  returnable  as  a  right  dc  jure,  and  not  a  privilege  ex 
gratia,  and  ordered  a  discontinuance  of  proceedings  against 
the  bail  on  payment  of  costs.b 

The  distinction  between  the  right  of  the  bail  to  surrender 
their  principal,  and  their  privilege  to  do  so  ex  gratia,  was  thus 
entirely  abolished  by  this  case,  but  the  Court  revived  the 
distinction  in  Breeze  vs.  Elmore,  4  Rich.,  436,  by  extending 
the  ex  gratia  privilege  of  the  bail,  and  permitting  them  at 
any  time  before  the  expiration  of  the  return  term  of  the  writ 
against  them,  to  move  for  further  time  within  which  to 
surrender  their  principal. 

The  law  may  be  thus  summed  up : 

1.  The  bail  are  fixed  at  the  expiration  of  the  term  to 
which  the  ca.  sa.  is  returned  non  est  inventus. 

2.  They  have  the  right  notwithstanding,  to  surrender 
their  principal  at  any  time  before  the  expiration  of  the 
return  term  of  the  writ  against  them. 

3.  That  if  unable  then  to  surrender  their  principal,  they 
may  ex  gratia  obtain  from  the  Court  further  time  within 
which  to  surrender  him. 

As  to  the  mode  and  manner  of  surrendering  the  princi- 
pal, and  the  precautions  necessary  to  be  taken  by  the  bail, 
see  Moyers  vs.  Center,  2  Strob.,  439. 

a  4  Strob.,  218 ;  see  also  Breeze  vs.  Elmore,  4  Rich.,  450. 

b  The  ex  gratia  privilege  being  converted  into  a  right,  is  the  order  of  Court  now 
necessary  to  give  effect  to  the  surrender,  as  in  Glover  vs.  Gomillion? 


46 


FOREIGN  ATTACHMENT. 

The  manner  of  obtaining  defendant's  appearance  in 
Court,  by  the  coercive  influence  ot  a  bail  writ,  has  been 
already  shown,  but  the  defendant  may  be  beyond  the  limits 
of  the  State,  so  that  bail  process  cannot  be  served  him.  In 
such  case,  the  plaintiff  is  provided  with  a  remedy  by  the 
Attachment  Law  of  the  State,  which  enables  him  to  attach 
the  property  of  the  defendant,  in  whosoever  hands  it  may 
be,  so  as  to  compel  his  appearance  in  Court,  as  a  party,  or 
subject  his  effects  to  the  operation  of  a  judgment. 

The  Attachment  Writ  exists  with  us  purely  by  virtue  of 
legislative  enactment,  but   the  practice   relative  to  it  has 
been  moulded  by  the  decisions  of  our  Courts  to  a  greater 
or  less  degree   of  conformity   to  the    custom  of   London. 
This  has  introduced  some  complexity  in  our  law,  and  for  a 
better  examination  of  the  subject,  I  propose  to  treat 
1st.  When  the  attachment  may  issue  ; 
2d.  What  may  be  attached ; 
3d.  The  practice  in  Attachments. 

1st.  The  plaintiff  is  entitled  to  sue  out  a  writ  of  Attach- 
ment when  the  party  sought  to  be  made  defendant  resides, 
or  is,  without  the  limits  of  the  State,  and  is  liable  to  the 
plaintiff  on  "  any  judgment  bond,  bill,  note  of  hand,  book 
debt,  covenant,  contract,  or  assumpsit,  whatsoever,  or 
wheresoever  made  or  entered  into, "a  or  has  committed  "any 
tort  trespass  or  injury  to  the  real  or  personal  property"  of 
the  plaintiff;b  and  any  debtor  absconding  or  concealing 
himself,  so  that  process  cannot  be  served  upon  him  for  the 
space  of  three  months,  shall  be  deemed  to  have  departed 
from  the  State,  and  his  property  liable  to  attachment.0 
Such  are  the  statutory  provisions  regulating  the  right  to  issue 
an  attachment,  and  under  them  the  Courts  have  held  that 
the  writ  may  issue  on  a  judgment  before  the  expiration  of 
a  year  and  a  day  from  the  date  of  its  recovery  and  that, 


a  Act  of  1744,  \  1,  3  Stat.,  017.         h   Act  of  1783,  \  2,  4  Stat.,  544. 
c  Act  of  1751,  §1,3  Stat,,  731. 


47 

whether  the  judgment  is  of  this  or  of  another  State."  It  is 
true  that  when  the  judgment  is  of  this  State,  the  execution 
can,  within  the  year  and  day,  issue  upon  the  effects  of  the 
defendant,  but  the  property  may  be  of  that  description  that 
a  fi.fa.  cannot  act  upon  it,  and  the  absence  of  the  defend- 
ant prevents  the  execution  of  a  ca.  sa.  by  which  he  might 
be  arrested,  and  forced  on  taking  the  insolvent  debtor's 
Act,  to  make  a  schedule  and  assignment.  The  writ  in 
attachment  alone  furnishes  a  remedy  by  seizing  upon  the 
property,  and  subjecting  it  to  the  payment  of  defendant's 
liability  on  the  judgment. 

A  writ  of  attachment  cannot,  however,  issue  against  an 
absent  copartner  (on  a  partnership  debt)  who  has  a  part 
resident  in  the  State  ;b  nor  can  it  issue  to  attach  the  partner- 
ship property,  even  if  all  the  copartners  are  out  of  the 
State,  provided  the  resident  copartner  has,  before  leaving, 
published  a  notice  that  he  is  ready  to  answer  any  suit  that 
may  be  brought  against  him,  or  to  appear  and  give  bail 
to  the  action;0  for  any  person  about  to  depart,  giving  notice 
for  one  month  next  before  his  departure,  that  he  is  about  to 
depart,  and  is  ready  to  answer  any  suit  that  shall  be  brought, 
exempts  his  effects  from  attachment,  §  9,  3  Stat.,  620  ;  nor 
can  the  writ  issue  against  an  absent  executor  or  adminis- 
trator f  nor  for  an  action  of  slander,  for  the  torts,  trespasses 
and  injuries  spoken  of  in  the  Act  of  1783,  (4  Stat.,  544,) 
must  be  actually  done  to  the  real  or  personal  property  of 
the  plaintiff.6*  It  does  not  embrace  injuries  to  the  person 
or  character,  and  there  being  no  process  of  outlawry  in  this 
State,  one  committing  an  assault  or  publishing  a  slander  or 


a  Clark  vs.  Conner,  2  Strob.,  346;  Shooter  vs.  McDuffie,  5  Rich.,  65. 

b  Bank  vs.  Broadfoot  &  McNeill,  4  McC,  30. 

o  Robinson  vs.  Crouder,  Clough  &  Co.,  1  Bail.,  185;  Aetofl744,  \  9,  3  Stat,  620. 

4  Weyman  vs.  Murdock,  Harper,   125. 

e  Sergeant  vs.  Ilelmbold,  Harper,  219. 

*  A  conversion  would  hardly  appear  to  be  such  a  tort  actually  done  to  property  as 
would  entitle  plaintiff  to  Writ  of  Attachment;  but  the  Writ  of  Attachment  can 
issue  in  trover,  for  otherwise  the  plaintiff  would  be  deprived  of  all  remedy  against 
the  defendant,  should  he  abscond.  (See  Gilchrist  &  King  vs.  Martin  &  West,  1 
Bail.  Eq.,  493.) 


48 

a  libel  has  only  to  remove  beyond  the  limits  of  the  State  to 
escape  punishment. 

2d.  What  may  be  attached. 

The  "  money,  goods,  chatties,  debts  and  books  of  ac- 
count,"'1 "lands  leasehold,  estates,  and  chatties  real,"b  in 
the  hands  of  any  person  or  persons  whatsoever,  and  the 
attaching  of  a  part  in  the  name  of  the  whole,  that  is  in  such 
person's  hands,  power,  or  possession  shall  secure  and  make 
the  whole  liable  in  law  to  answer  any  judgment  that  shall 
thereafter  be  recovered  upon  that  process.0 

Under  the  words  "moneys  and  debts,"  is  included  all 
debts  due  by  the  garnishee  to  the  absent  debtor,  whether 
evidenced  by  bond  or  note  or  not;  and  all  securities  for 
money,  notes  or  bonds  in  suit ;  but  a  mere  claim  for  dama- 
ges which  is  in  course  of  litigation,d  or  money  due  on  a 
note  given  by  garnishee  to  the  absent  debtor  cannot  be 
attached.6  Kor  can  moneys  levied  under  ji.fa.,  and  in  the 
Sheriff's  hands  ;f  or  money  in  the  hands  of  the  Ordinary,6 
or  in  the  hands  of  the  United  States  Marshall,11  or  a  legacy, 
or  distributive  share  of  the,  absent  debtor,  in  the  hands  of 
the  executor  or  administrator1  be  subject  to  attachment. 
Goods  and  chattels  levied  on  under  ji.  fa.,  and  in  the 
Sheriff's  hands  are,  however,  subject  to  attachment.j  It  is 
not  easy  to  perceive  why  goods  the  proceeds  of  a  Ji.  fa., 
should  be  subject  to  attachment,  and  the  money  arising  from 
the  sale  of  these  goods  exempt,  but  such  is  the  law. 
Where,  however,  after  satisfying  the y?.  fa.  there  remains  a 
balance  in  the   Sheriff's  hands,  that   balance  is  liable  to 


•>■  Act  of  1744,  3  Stat.,  617. 
b  Act  of  1783,  4  Stat.,  544. 
c  Act  of  1744,  3  Stat,,  617. 
a  Burrell  vs.  Letson,  2  Spear,  388. 
e  Gaffney  vs.  Bradford,  2  Bail.,  441. 

f  Blair  vs.  Canty,  2  Spear,  3f  ;  Bowden  vs.  Sehatzell,  Bail.,  Eq.,  360. 
g  Murrell  &  Footevs.  Johnson,  3  Hill,  13. 
h  Burrell  vs.  Letson,  1  Strob.,  245. 

1  Young  vs.  Young,  2  Hill.,  425  ;  McElwee  vs.  Story,  1  Rich.,  9 ;  see  also  Kinlocb 
vs.  Mixer,  1  Spear,  Eq.,  427 ;   Carlton  vs.  Felder,  6  Rich.,  Eq.,  58. 
J  Day  vs.  Beecher,  1  McM.,  94. 


49 

attachment.  It  is  not  considered  as  in  the  custody  of  the 
law.a 

Partnership  property  may  be  attached  for  the  individual 
debt  of  one  of  the  copartners,15  but  all  that  the  plantiff 
attaches  is  the  individual  partner's  interest  in  the  property,0 
which  interest  is  the  residue  after  payment  of  partnership 
debts,  and  a  judgment  creditor  of  the  copartnership  has  a 
right  to  the  fund  attached,  prior  to  the  right  of  the  attach- 
ing creditor.6 

A  Court  of  Law  is,  however,  from  its  constitution  unable 
to  ascertain  what  is  the  interest  of  the  absent  copartner  in 
the  property  attached;  but  the  practice  of  the  Court  seems 
to  be  to  pay  over  to  the  attaching  creditor  the  defendant's 
proportionate  share  in  the  property  attached,  as  one  of  the 
joint  owners  ;  the  attaching  creditor  giving  bond  to  answer 
all  claims  which  may  be  afterwards  made  on  the  funds.6 

3d.  The  practice  in  attachment. 

The  attachment  is  effected  by  serving  the  person  in  pos- 
session of  the  property  of  the  absent  debtor,  (if  there  be 
any  one  in  possession.)  with  a  copy  of  the  Writ  of  Attach- 
ment, upon  which  copy  is  endorsed  a  notice  requiring  him 
to  appear  before  the  Judge  of  the  Court  of  Common  Pleas, 
to  show  cause  why  the  effects  attached  should  not  be 
adjudged  to  belong  to  the  absent  debtor. 

The  writ  must  contain  the  names  of  the  parties  to  the 
suit,  and  the  statement  of  the  cause  of  action,  set  forth 
with  the  same  accuracy  as  is  required  in  a  capias  ad  respon- 
dendum. The  writ  being  prepared  and  the  copy  writ 
addressed  to  the  person  whom  it  is  intended  to  serve 
as  garnishee,  the  plaintiff  applies  to  the  Clerk  of  Court  to 
have  the  writ  tested  ;  and  it  is  the  duty  of  the  Clerk  before 
allowing  the  writ  to  issue,  to  take  from  the  plaintiff  or  his 
agent,  a  bond  to  defendant  in  double  the  amount  for  which 


I  Dickinson  vs. Palmer,  2  Rich.  Eq.,  407. 
b  Schatzell  vs.  Bolton;  2  McC,  478. 

0  Knox  vs.  Schepler,  2  Hill,  595. 

II  Bowdeii  v.-.  Schatzell,  1  Bail.  Eq.,  360. 

"   Knox  vs.  Schepler,  2  Hill,  595;  Schatzell  vs.  Bolton,  2  McC,  478. 

4 


50 

the  attachment  issues,  to  be  answerable  for  all  damages  the 
defendant  may  sustain,  by  any  illegal  conduct  in  obtaining 
or  prosecuting  the  same."  The  penalty  of  the  bond  must 
be  double  the  damages  if  the  action  is  in  assumpsit ;  if  in 
debt,  and  the  damages  nominal,  double  the  debt ;  if  the 
damages  are  not  nominal,  double  the  debt  and  damages.1* 
The  bond  may  be  executed  by  the  attorney  at  law  of  the 
plaintiff,  and  no  special  power  authorizing  him  need  be  pro- 
duced.0 The  bond  given  must,  however,  be  in  compliance 
with  the  attachment  law  of  the  State,  and  a  mere  blank 
paper  signed  and  sealed  by  the  plaintiff  or  his  agent,  is  not 
a  sufficient  execution  of  a  bond  to  authorize  the  issuing  of 
the  writ  ;d  but  the  objection  to  the  regularity,  or  even  to 
the  absence  of  the  bond,  can  only  be  made  by  the  absent 
debtor  himself.  The  garnishee  cannot  avail  himself  of  it,e 
and  even  the  absent  debtor  is  precluded  from  taking  advan- 
tage of  it  after  pleading  to  the  merits/  On  giving  the 
bond,  the  writ  issues  of  common  right.  (Act  of  1799,  7 
Stat.,  294.) 

While  upon  the  subject  of  the  writ,  it  will  be  as  well  to 
notice  the  causes  for  which  it  may  be  set  aside  or  quashed. 

It  will  be  set  aside  on  motion,  if  shown  by  affidavits  that 
the  defendant  was  in  the  State  at  the  time  of  service  of  the 
writ  ,s  but  if  the  fact  is  doubtful  the  Court  will  not  inter- 
fere ;h  or  if  defendant  is  not  liable  to  that  process,1  or  if  the 
fund  is  not  attached/  or  if  the  action  is  not  suiable  by 
attachment,11  or  if  the  debt  is  not  due,1  or  if  bond  has  not 


»  Act  of  1839,  11  Stat.,  76,  §  21. 
»  Brown  &  Stone  vs.  Whiteford,  4  Rich.,  327. 

c  Dillon  vs.  AVatkins,  2  Spear,  447,  and  Byne  vs.  Byne,  1   Rich.,  441,  overruling 
Myers  vs.  Lewis,  1  McM.,  54. 

d  Boyd  vs.  Boyd,  2  N.  &  McC,  125. 

e  Camberfordvs.  Hall,  3  McC,  345  ;  Wigfall  vs.  Byne,  1  Rich.,  413. 

1  Gray  vs.  Young,  Harper,  38. 

6  Degnau  ads.  Wheeler  &  Co.,  2  N.  &  McC,  323;  Blake  vs.  Hawes,  2  Hill,  631. 

b  Shrewsbury  vs.  Peareson,  1  McC,  331. 

1  Weyman  vs.  Murdock,  Harper,  125. 

J  Burrell  vs.  Letson,  1  Strob.,  244. 

k  Sargeant  vs.  Helmbold,  Harper,  219. 

1  Walker  &  Bradford  vs.  Roberts,  4  Rich.,  563. 


51 

been  given. a  The  attachment  will  not,  however,  be  set  aside 
on  the  ground  that  the  defendant  had  in  a  foreign  country, 
made  an  assignment  of  all  his  effects,  prior  to  the  service  of 
the  writ.* 

The  motion  to  set  aside  the  writ  may  be  made  by  the 
defendant,  or  by  the  junior  attaching  creditor,  but  care  must 
be  taken  to  keep  steadily  in  view  the  distinction  between 
illegality  in  the  proceedings  and  mere  irregularity  ;  for  the 
former,  either  the  defendant  or  junior  attaching  creditor 
may  move  to  set  aside  the  writ ;  to  the  latter  the  defendant 
alone  can  except ;°  and  even  he,  as  has  already  been  stated, 
is  precluded  by  pleading  over.d 

The  writ  being  duly  tested  and  the  bond  given,  the  writ 
is  delivered  to  the  Sheriff,  who  must  serve  it  personally  upon 
the  garnishee.  The  Act  of  1744,  (3  Stat.,  617,)  and  the  Act 
of  1839,  (11  Stat.,  29,  §  18,)  use  the  same  language  that  the 
Sheriff  shall  "  summon  the  person  in  whose  hands,"  &c, 
"by  serving  such  person  with  a  cop}^,"  and  in  Richardson 
vs.  Whitfield,  1  McC,  403,  it  was  held  that  the  service 
could  not  be  by  copy  left ;  and  to  the  same  effect  is  Day  vs. 
Beecher,  1  McM.,  94,  where  a  writ  lodged  in  the  Sheriff's 
office,  the  Sheriff  being  garnishee  was  held  not  to  be  suffi- 
cient service. 

If  the  service  of  the  writ  is  illegal  no  lien  is  created,  and 
although  the  defendant,  by  subsequent  pleading  waive  the 
illegality,  the  waiver  cannot  relate  back  so  as  to  defeat  the 
lien  of  intermediate  attachments.6 

The  first  writ  of  attachment  lodged  in  the  Sheriff's  office 
has  priority  of  lien,  although  a  writ  subsequently  lodged  is 
first  served/  There  can  of  course,  be  no  lien  where  there 
is   no   service,  but    where  both   the  attachment   writs   are 

a  Chambers  &  Sadler  vs.  McKee,  1  Hill,  229. 

b  Crowder,  Clough  &  Co.,  ads.  Robinson,  4  McC,  519. 

c  landau  vs.  Arnold,  4  Strob.,  292;  Walker  &  Bradford  vs.  Roberts,  4  Rich.,  566: 
Camberford  vs.  Hall,  3  McC,  345  :  McBride  vs.  Floyd,  2  Bail.,  208  ;  Shooter  v. 
McDuffie,  5  Rich.,  61. 

d  Gray  vs.  Young,  Harper,  38. 

e  Gardner  "h.  Hust,  2  Rich.,  601. 

f  Callahan  vs.  Hallowell,  2  Bay,  8. 


52 

served,  the  priority  of  lien  depends  on  the  priority  of  lodg- 
ment with  the  Sheriff,  and  not  on  the  priority  of  service  ; 
and  this  is  in  effect  the  real  principle  decided  by  the  cases 
of  Growninshield  vs.  Strobel  &  Martin,  2  Brev.,  80,  and 
Robertson  vs.  Forest,  Ibid,  460,  which  at  the  first  glance 
appear  to  contradict  the  case  in  2  Bay. 

We  pass  now  to  the  active  energy  of  the  writ.  The 
operation  of  the  attachment  seems  twofold. 

1st.  As  fixing  a  lien  on  property  visible  and  known  as  the 
property  of  an  absent  debtor,  whether  it  be  in  the  posses- 
sion of  any  one  or  not;  and 

2nd.  As  a  means  of  obtaining  a  discovery  by  the  oath  of 
the  garnishee,  whether  or  not  he  has  in  his  possession  or 
power  any  and  what  property  of  the  absent  debtor,  and 
whether  or  no  he  is  in  any  manner  indebted  to  the  absent 
debtor."  An  examination  of  the  the  various  Attachment 
Acts,  will,  I  think,  show  that  their  provisions  are  irrecon- 
cilable, except  on  some  such  distinction  as  that  here 
suggested. 

Of  course,  whenever  the  writ  is  served  on  a  garnishee  in 
possession,  it  acts  in  both  its  capacities  ;  it  fixes  a  lien  on  the 
known  and  visible  property  of  the  absent  debtor,  and  acts 
also  as  a  bill  of  discovery,  by  the  return,  which  as  will  be 
hereafter  shown,  the  garnishee  must  make  ;  but  in  many 
cases  it  has  the  single  operation  of  a  bill  of  discovery. 

If  there  is  no  one  in  possession  of  property,  known  or 
supposed  to  be  the  property  of  the  absent  debtor,  the 
Sheriff  shall  take  the  same  into  his  custody,  and  fix  up  at 
the  Court  House  door  an  account  of  the  effects  attached 
with  a  notice  requiring  all  persons  claiming  the  same,  to 
appear  at  the  return  of  the  writ,  and  show  cause  why  the 
same  should  not  be  adjudged  to  belong  to  the  absent  debtor  ;>> 
and  if  no  one  appear,  or  no  cause  is  shown,  the  same  shall 
be  adjudged  to  be  the  property  of  the  absent  debtor.0 

a  See  the  case  of  Parker  vs.  Parker,  2  Hill  Ch.,  39.  The  authority  of  this  case 
has  however  been  much  weakened  by  the  Act  of  1844,  requiring  the  payment  to  the 
assignees,  of  all  moneys,  &c,  attached. 

»  Act  of  1744,  3  Stat.,  618  :  Act  of  1839, 11  Stat.,  28. 

°  3  Stat.,  618. 


53 

If  there  is  any  one  in  possession,  the  Sheriff  serves  him 
personally  with  a  copy  of  the  writ,  and  if  the  garnishee 
does  not  on  oath  claim  the  property  as  creditor  in  posses- 
sion, he  must  surrender  and  deliver  it  up  to  the  Sheriff,  or 
give  bond  with  surety  not  to  waste  or  eloign  the  property,  to 
render  a  schedule  on  oath,  to  make  due  return  to  the  writ, 
and  to  surrender  the  property  attached  when  thereto  required 
by  law.8. 

If  the  garnishee  claim  as  creditor  in  possession,  he  is 
entitled  to  retain  possession  of  the  property  attached,  with- 
out giving  hond  ;b  but  as  this  would  leave  to  the  garnishee 
the  power  of  removing  the  effects  attached  beyond  the 
State,  the  second  section  of  the  Act  of  1844,  provides  that 
if  the  plaintiff  or  his  attorney  will  make  oath  that  he  lias 
just  cause  to  believe  that  the  garnishee  is  about  to  move  the 
property  beyond  the  limits  of  the  State,  or  to  waste  or  des- 
troy the  same,  the  Sheriff  may  cause  such  person  to  enter 
into  bond  with  security,  in  double  the  amount  sued  for,  tft 
make  the  returns,  and  surrender  the  property  according  to 
law.0 

But  it  may,  and  often  does  happen,  that  the  plaintiff  is 
ignorant,  whether  or  no  there  is  any  property  of  the  absent 
debtor  in  the  State,  but  has  reason  to  suspect  from  the 
course  of  trade,  or  other  circumstances,  that  a  certain  per- 
son has  in  his  possession  or  power,  effects  of  the  absent 
debtor,  or  is  indebted  to  the  absent  debtor ;  to  enable  the 
plaintiff  to  ascertain  that  fact,  the  law  provides  him  witli 
the  writ  of  attachment,  and  the  party  supposed  to  be  in  pos- 
session of  property  of  the  absent  debtor,  is  served  with  the 
writ,  by  which  he  is  compelled  to  appear  at  the  return  of 
the  writ,  and  discover  on  oath  what  sum  or  sums  of  money, 
debts,  goods,  chattels,  books  of  account,  &c,  he  has  in  his 
hands,  possession  or  power,  to  which  the  absent  debtor  hath 
any  right  claim  or  property  whatsoever."  Act  of  1744,  8 
Stat.,  617. 


a  Act  of  1844,  11  Stat,  290. 

»  State  vs.  Berry,  Dudley,  218;  Moore  &  Davis  vs.  Byne  &  Hust,  1  Rich.,  94. 
0  Act  of  1844,  11  Stat.,  290;  See  also  Moore  &  Davis  vs.  Byne  &  Hust,  1  Rich.,  94, 
and  Byne  vs.  Byne,  Ibid.,  441. 


54 

It  has  already  been  stated,  that  one  of  the  objects  of  the 
second  section  of  the  Act  of  1844,  (11  Stat.,  290,)  was  to 
provide  a  security  against  the  eloignment  or  wasting  of  the 
attached  goods,  while  retained  by  the  garnishee  as  creditor  in 
possession  ;  and  such  is  the  construction  given  to  it  in  Byne 
vs.  Byne,  1  Rich.,  441 ;  but  the  section  applies  with  equal,  if 
not  greater  propriety  to  the  case,  where  the  plaintiff  believ- 
ing the  garnishee  to  be  in  possession  of  property  of  the 
absent  debtor,  seeks  protection  against  the  eloignment  or 
wasting  of  the  property  during  the  interval  between  the  ser- 
vice of  the  writ  on  the  garnishee,  and  his  return  to  it. 
There  arc  no  means  of  compelling  the  garnishee  to  declare, 
on  service  of  the  writ,  whether  or  no  he  has  in  his  posses- 
sion or  power,  property  liable  to  attachment,  (as  there  is 
where  the  visible  property  of  the  debtor  is  attached  in  the 
hands  of  the  garnishee,  and  he  compelled  to  surrender,  or 
claim  on  oath  as  creditor,)  and  until  the  return,  the  plantiff 
cannot  know  whether  the  garnishee  holds  any  attachable 
property  ;  or  the  garnishee  may  in  his  return  deny  that  he 
has  any  property  of  the  absent  debtor,  and  the  plaintiff  only 
discover  the  fraud  after  the  property  has  been  eloigned,  and 
placed  beyond  the  reach  of  the  process. 

Prior  to  this  section  of  the  Act  of  1844,  the  plaintiff  was 
remediless  in  such  case,  except  against  the  garnishee  person- 
ally, which  might  be  equivalent  to  having  no  remedy;  but 
by  the  second  section  of  the  Act,  the  plaintiff  is  entitled  to 
a  bond  from  the  garnishee,  by  which  the  property  is  pro- 
tected until  the  return  of  the  garnishee,  or  while  the  plain- 
tiff seeks  evidence  to  falsity  the  return.  It  is  proper  to 
remark,  that  I  have  found  no  case  in  which  the  affidavit 
was  made  and  bond  taken  at  the  issuing  and  service  of  the 
writ,  but  the  language  of  the  Act  seems  too  clear  to  admit 
of  doubt,  especially  since  it  prescribes  that  the  affidavit 
shall  be  "annexed  to  the  process,"  and  that  "  the  Sheriff 
on  executing  the  process,"  shall  take  the  bond,  &c,  evidently 
indicating  the  remedy  as  moving  pari  passu  with  the  writ, 
whereas  when  applied  to  a  garnishee  claiming  as  creditor  in 
possession,  it  is  a  subsequent  proceeding ;  since  until  scr- 


55 

vice,  the  plaintiff  can  not  know  whether  the  garnishee  will 
surrender  or  will  claim  as  creditor. 

In  every  case  where  a  garnishee  is  served  with  a  copy  of 
the  writ,  a  return  must  he  made.  If  a  discovery  is  sought, 
the  return  is  necessary,  so  as  to  inform  the  Court  whether 
or  no  the  garnishee  has  in  his  possession  any  attachable 
property,  and  if  any,  the  nature  and  value  of  it.  If  the 
garnishee  claim  as  creditor,  it  is  necessary,  in  order  to  show 
the  nature  and  value  of  the  property  attached,  and  the 
amount  of  the  creditor's  claim  upon  it.  If  the  garnishee 
does  not  claim  as  creditor  id  possession,  but  retains  the 
goods  attached,  he  is  bound  by  the  condition  of  his  bond 
to  make  return  ;  and  if  he  surrender  the  goods  on  service 
of  the  writ,  he  is  still  bound  to  make  return,  for  non  constat, 
that  the  goods  surrendered  are  all  the  goods  or  property  of 
the  absent  debtor  in  his  possession ;  and  the  discovery  on 
oath  by  his  return  is  necessary  as  prima  facie  evidence  of 
that  fact.8  The  return  of  the  garnishee  should  state  not 
only  what  goods  were  in  his  hands  or  possession,  but  also 
what  were  in  his  power, b  and  since  the  Act  of  1844,  it 
should  state  what  were  in  his  "  possession,  custody,  power, 
or  control."0  It  is  intimated  in  Burrell  vs.  Letson,  (1  Strob- 
hart's  Reports,  page  245,)  that  the  words  "hands,  power, 
or  possession  "  are  used  as  of  equivalent  import,  and  that 
the  words  "power  or  possession"  do  not  enlarge  the  mean- 
ing of  the  words  "in  the  hands  of;"  but  this  dictum,  it  ia 
respectfully  submitted,  is  erroneous,  and  the  legislative  con- 
struction given  to  the  word  "power"  by  the  Act  of  1844, 
which  uses  the  words  "power,  custody,  or  control,"  seems 
to  have  escaped  his  Honor's  attention.  The  Act  of  1844 
did  not  enlarge  the  powers  of  Attachment  given  by  the 
Act  of  1744;  it  rendered  nothing  attachable  which  was  not 
before  attachable,  and  the  words  "custody  and  control" 
mentioned  in  it  are  only  a  legislative  interpretation  of  the 
word  "power,"  indicating  that  it  is  not. synonymous  with, 

but  more  comprehensive  than,  the  word  possession. 

_ 

a  See  Hunter  and  Brown  vs.  Andrews,  2  Spear,  73. 
b  Tavel  vs.  Barre,  2  McC,  201.  c  See  form  of  Return  in  Appendix. 


56 

If  the  garnishee  claim  the  goods  attached  as  creditor  in 
possession,  he  should  set  forth  in  his  return  specifically  the 
effects  attached,  and  also  the  amount  and  nature  of  the  indebt- 
edness of  the  absent  debtor  to  him,  and  if  the  effects  attached, 
were  obtained  bona  fide  and  legally  by  the  garnishee,  he 
shall  be  allowed  his  debt — he  filing  his  declaration  precisely 
as  if  he  were  plaintiff  in  the  attachment."  To  entitle  the 
garnishee  to  claim  as  creditor  in  possession,  he  should  have 
a  lien  for  outstanding  liabilities  incurred  on  behalf  of  the 
absent  debtor,1'  or  an  actionable  demand  against  the  absent 
debtor  at  the  time  of  service  of  the  writ.  A  liability  con- 
tingent at  the  time  of  service  of  the  writ — even  though  it 
become  fixed  and  absolute  before  the  return  to  the  writ — 
does  not  entitle  the  garnishee  to  claim  as  creditor  in  posses- 
sion.0 The  later  cases  lay  down  the  rule  that  the  garnishee 
claiming  as  creditor  in  possession,  stands  on  the  footing  of 
a  plaintiff  in  attachment,  who  has  secured  the  first  lien  by 
the  first  service  of  a  writ.d  The  distinction  between  the 
cases  of  The  Bank  vs.  Levy,  and  Young  vs.  Linton,  is  that 
in  the  former  there  was  by  the  custom  of  trade  a  lien,  but 
none  in  the  latter.  As  to  the  possession  he  should  have, 
the  rule  is,  that  wherever  the  goods  are  attachable  in  his 
hands,  possession,  power  or  control,  there  the  garnishee  has 
such  possession  as  entitles  him  to  claim  to  retain  them  as 
creditor  in  possession.  (See  Mitchell  vs.  Byrne,  6  Bich., 
182.) 

The  return  must  be  under  oath,  except  where  the  gar- 
nishee is  a  corporation,  in  which  case  it  is  sufficient,  if 
under  the  seal  of  the  corporation.6  Properly,  the  return 
should  be  made  "  at  the  return  of  the  writ,  or  during  the 
sitting  of  the  Court  next  after  the  return  of  the  writ." 
(3  Stat.,  617.)      The  Court  may,  however,  on  good  cause 


»  3  Stat,  619,  g  6. 
b  Bank  vs.  Levy,  1  McM.,  436. 
c  Martin  vs.  Solomons,  10  Rich.,  533. 

d  Walker   &  Bradford  vs.   Roberts,  4  Rich.,  561 ;    Mitchell  vs.   Byrne,    6  Rich., 
171 ;  Young  vs.  Linton,  Ibid,  278. 
e  Callahan  vs.  Hallo  well,  2  Bay,  10. 


57 

shown,  permit  the  return  to  be  made  at  the  second  term,a 
or-  the  Court  may,  in  its  discretion,  even  after  judgment 
had  against  the  absent  debtor,  permit  a  garnishee  to  amend 
his  return. b 

Should  the  garnishee  neglect  or  refuse  to  make  the  return, 
upon  motion  made  in  open  Court,  after  two  days'  notice 
thereof  served  personally  upon  the  garnishee,  or  in  case  of 
garnishee's  absence  posted-on  the  Court  House  door,  judg- 
ment shall  be  entered  up  against  the  garnishee,  and  execu- 
tion issued  ;c  but  judgment  must  be  first  had  against  the 
absent  debtor  before  any  proceedings  can  be  had  against 
the  defaulting  garnishee.d  The  usual  practice  is  to  enter 
an  order  that  the  plaintiff  have  leave  to  enter  up  judgment 
against  the  garnishee,  and  when  there  are  several  gar- 
nishees, there  should  be. separate  judgments  entered,  and 
separate  executions  issued  against  each.  (Pringle  vs.  Car- 
ter, 1  Hill,  58.)  This  case  was  prior  to  the  Act  of  1844,  but 
that  Act,  except  so  far  as  regards  the  notice  required,  does 
not  vary  from  the  Act  of  1744. 

It  is  proper,  though  not  usual,  for  the  attorney  of  the 
garnishee  to  move,  on  the  coming  in  of  the  return,  or  during 
the  term,  that  the  garnishee  be  discharged.  The  motion  is 
useful  as  forcjmg  the  plaintiff  to  his  election,  and  informing 
the  garnishee  whether  or  no  he  will  be  called  on  to  substan- 
tiate his  return.  (See  Martin  vs.  Parham,  1  Hill,  215.)  If 
plaintiff  does  not  dispute  the  correctness  of  the  return,  the 
garnishee,  on  delivering  up  the  property  to  the  assignee 
appointed  by  the  Court,  as  will  hereafter  be  shown,  is 
discharged.6 

If  the  plaintiff  is  not  satisfied  of  the  correctness  of  the 
return,  he  is  entitled  to  contest  it,  by  filing  suggestions,  to 
be  tried  by  a  jury,  in  which  he  must  set  forth  the  particu- 


a  Creach  vs.  DeLane,  1N.4  McC,  191 ;  Green  vs.  McDonnell,  1  Bail.,  304;  Hun- 
ter &  Brown  vs.  Andrews,  2  Spear,  74. 
b  Horsey  &  Co.  vs.  Palmer,  9  Rich.,  124. 
c  Act  of  1844,  g  3,  11  Stat,,  290. 

d  Act  of  1744,  3  Stat,,  618  ;  Richardson  vs.  Whitfield,  1  McC,  403. 
e  Chambers  &  Sadler  vs.  McKee,  1  Hill,  229. 


58 

lars  in  which  the  return  is  defective  or  false,  and  in  addition 
to  the  allegations  that  at  the  time  of  the  service  of  the 
writ,  the  garnishee  had  in  his  possession,  power  or  control, 
certain  property  not  embraced  in  the  return,  the  suggestions 
should  charge  such  increase  by  interest,  hire  or  damages, 
or  other  circumstances  subsequent  to  the  attachment  as 
may  enable  the  jury  to  ascertain  the  value,  at  the  time  of 
the  verdict,  of  the  property  omitted. a  If  the  garnishee,  or 
any  third  person,  claim  property  in  the  things  attached,  the 
truth  is  to  be  ascertained  by  a  feigned  issue,  in  which  the 
garnishee  or  party  claiming  is  actor.1' 

When  the  return  of  the  garnishee  is  so  insufficient, 
vague,  or  imperfect,  that  the  plaintiff  cannot  file  sugges- 
tions contesting  it,  and  a  more  full  and  explicit  return  is 
required,  the  practice  is  for  the  plaintiff  in  attachment 
to  file  the  grounds  of  his  exceptions  to  the  return,  and 
two  days'  notice  being  personally  served  on  the  garnishee, 
or,  in  his  absence,  posted  on  the  Court  House  door,  to 
move  the  Court  for  an  order  compelling  the  garnishee  to 
file  a  full  and  complete  return  on  or  before  a  day  named  in 
the  order,  and  that  in  the  event  of  garnishee's  default,  that 
the  plaintiff  have  leave  to  enter  up  judgment  against  the 
garnishee  as  if  no  return  had  been  made.0  When  the  full 
return  is  made  in  obedience  to  the  order,  the  plaintiff,  if 
objecting  to  its  corrections,  may  then  file  suggestions  con- 
testing the  return. 

The  suggestions  may  be  filed,  as  of  course,  at  any  time 
during  the  return  term  of  the  writ,  or  the  vacation  follow- 
ing; if  not  filed  before  the  second  term,  it  can  then  only 
be  filed  by  leave  of  Court  on  cause  shown.  If  not  filed 
within  a  year  and  a  day  from  the  return  of  the  writ,  the 
plaintiff  is  out  of  Court,  and  cannot  afterwards  obtain  leave. 
If  the  suggestion  is  filed  during  the  return  term  of  the 
writ,  the  garnishee  may  be  put  to  plead,  and  try  the  same 

a  Act  of  1744,  3  Stat.,  618;  Gage  vs.  Wilburn,  2  Brev.,  485  j  Cohen  ads.  Sherman. 
2  Spear,  534. 

b  Groldthwait  &  Evans  vs.  Bryant,  1  McM.,  452. 
c  See  Act  of  1844,  \  3,  11  Stat,,  290. 


59 

forthwith,  or  the  Court,  in  its  discretion,  may  appoint  a 
future  term  for  the  trial  of  the  issue.a  On  the  trial  of  the 
issue,  the  jury  are  limited  to  finding  the  truth  or  falsity  of 
the  return,  upon  the  allegations  contained  in  the  sugges- 
tions;15 and  if  the  jury  find  specific  chattels  in  the  hands  of 
the  garnishee  to  belong  to  the  absent  debtor,  they  should 
also  find  the  value  of  them.0  The  finding  of  the  jury  in 
favor  of  the  plaintiff  is  equivalent  to  an  amendment  of  the 
garnishee's  return,  and  no  execution  issues  (except  for  costs) 
against  the  garnishee,  but  simply  an  order  of  Court  direct- 
ing him  to  deliver  up  the  property  —  obedience  to  which  is 
enforced  by  an  attachment  for  contempt.*1 

What  effect  the  death  of  the  defendant  pending  the  suit 
has  upon  the  garnishee,  is  uncertain.  If  the  defendant  dies 
after  the  expiration  of  the  rule  to  plead,  when,  as  has  been 
previously  shown  [ante,  page  28),  judgment  by  default  is 
entered,  it  only  remains  for  plaintiff  to  issue  sci.  fa.  to  the 
personal  representations  to  show  cause  why  the  damages 
should  not  be  assessed.  The  proceedings  against  the  gar- 
nishee hold  good,6  but  if  defendant  dies  before  the  expira- 
tion of  the  rule  to  plead,  it  is  doubtful  what  effect  the  death 
has.  In  Hitchborn  vs.  Radcliffe,  (3  Brev.,  23,  S.  C;  1 
Treadw.,  83,)  it  was  held  that  the  action  would  abate,  but 
the  decision  in  that  case  manifestly  turned  upon  the  point 
that  the  proceeding  by  attachment  was  a  proceeding  in  per- 
sonam— a  position  refuted  by  all  the  subsequent  cases,  (see 
Fife  vs.  Clark,  3  McC,  347,)  and  in  The  Bank  vs.  McRae, 
2  Spear,  641,  the  Court,  although  recognizing  the  error  of 
Hitchborn  and  Radcliffe,  declined  to  lay  down  any  rule  on 
the  subject. 

The  death  of  the  garnishee  pending  the  proceedings  does 
not  abate  the  action,  but  a  judgment  entered  up  against  the 
garnishee  after  his  death,  is  irregular,  and  may  be  set  aside. 
(Parker  vs.  Parker,  2  Hill  Ch.,  38.) 

a  Martin  vs.  Parham,  1  Hill,  213  ;  Burrell  vs.  Letson,  1  Strob.,  244. 

b  Westmoreland  vs.  Tippens,  1  Bail.,  514. 

e  Sherman  vs.  Barrett,  1  Rich.,  457 

d  Cohen  ads.  Sherman,  2  Spear,  534;  same  case,  2  Strob.,  556. 

•  Bank  vs.  MeRae,  2  Spear,  641. 


60 

Upon  the  return  to  the  writ,  either  by  the  Sheriff  or  the 
garnishee,  the  Court  of  Common  Pleas,  or  any  law  Judge 
at  chambers,  may  appoint  one  or  more  assignees,  with  full 
power  to  receive  and  take  from  the  Sheriff  or  garnishee  all 
the  property  attached;  to  take  possession  of  any  land, 
leasehold  estates  or  chattels  real,  attached,  and  to  receive 
the  rents  of  the  same ;  to  sue  in  the  name  of  the  absent 
debtor  for  all  monies  due  him,  and  to  give  receipts  therefor; 
such  assignees  giving  bond  for  faithful  conduct.  (Act  of 
1844,  11  Stat.,  291,  §  6  and  7.)  If  there  should  be  any  arti- 
cles, perishable  or  expensive  to  keep,  among  the  effects 
attached,  any  law  Judge,  on  application  made,  and  proper 
cause  shown,  may  grant  an  order  for  the  sale  of  such 
property,  (Act  of  1744,  §  7,  3  Stat.,  619;)  apparently,  the 
application  may  be  made  either  by  plaintiff  or  assignee. 
The  declaration  should  be  filed  within  two  months  after  the 
return  of  the  writ,  unless  cause  shown  for  further  time ; a 
but  if  filed  before  the  expiration  of  a  year  and  a  day  from 
the  return  of  the  writ,  it  will  preserve  the  first  attaching 
creditor's  lien,  unless  a  junior  attaching  creditor  shall  rule 
him  to  declare,  and  on  his  default,  enter  up  against  him  a 
judgment  of  non  pros*  At  the  time  of  filing  the  declara- 
tion, the  plaintiff  should  make  oath  of  the  debt  or  sum 
demanded,  and  that  no  part  of  it  has  been  paid,  and  that  he 
does  not  in  any  way  stand  indebted  to  the  defendant.0  The 
affidavit  need  not,  however,  be  made  at  the  precise  time  of 
filing  the  declaration/  nor  need  it  be  filed  with  the  declara- 
tion or  recorded ; e  and  if  the  affidavit  is  altogether  omitted, 
the  objection  cannot  be  taken  by  the  defendant,  after  plead- 
ing to  the  merits/ 

On  filing  the  declaration,  the  plaintiff  should  serve  the 
wife  or  attorney  of  the  defendant,  if  either  are  known  to  be 


a  Act  of  1744,  I  2,  3  Stat.,  618. 

b  Stephen  vs.  Thayer,  2  Bay.  272 ;   McBride  vs.  Floyd,  2  Bail..  209. 

c  Act  of  1744,  g  5,  3  Stat.,  619. 

d  Creagh  vs.  Delane   1  N.  A  McC.,  189. 

•  Foster  vs.  Jones,  1  McC,  116. 

'  Stoney  vs.  McNeill,  Harper,  156. 


61 

within  the  State,  with  a  copy  of  the  declaration,  with  a 
special  order  of  Court  endorsed  thereon,  ordering  when 
such  absent  debtor  shall  plead  to  the  action  ;  and  the  Court 
may  allow  any  time  for  the  same,  not  exceeding  a  year  and 
a  day;  and  in  case  the  absent  debtor  has  neither  wife  nor 
attorney  within  the  State,  notice  for  him  to  appear  and 
plead  shall  be  published  once  every  three  months  in  the 
public  gazettes,  and  if  the  debtor  does  not  "  appear  and  make 
his  defence  within  a  year  and  a  day  from  filing  the  declara- 
tion, final  and  absolute  judgment  shall  be  forthwith  given 
and  awarded  for  the  plaintiff  in  attachment." a  Such  is  the 
language  of  the  Act,  but  by  the  construction  given  to  it  in 
the  case  of  Williams  vs.  Ilaseldon,  (10  Rich.,  50,)  the  absent 
debtor  may,  after  the  expiration  of  the  year  and  day,  appear 
and  put  in  special  bail,  and  at  the  succeeding  term  set  aside 
the  interlocutory  judgment,  dissolve  the  attachment  and 
obtain  leave  to  plead  to  the  action. 

The  wife  of  the  absent  debtor  cannot  appear  and  plead  to 
the  declaration, b  and  formerly  the  defendant  could  not 
appear  in  person  or  by  attorney,  and  defend  the  action, 
without  entering  special  bail ; e  but  by  the  Act  of  1843,  (11 
Stat.,  256,)  the  defendant  may  at  any  time  before  the  expi- 
ration of  the  usual  rule  to  plead,  appear  by  attorney  and 
plead  to  the  declaration,  without  putting  in  bail  to  the 
action  :  provided,  that  a  warrant  of  attorney,  duly  executed 
by  defendant,  shall  be  first  filed  in  the  office  of  the  Clerk 
issuing  the  attachment.  The  Actd  contains  another  and 
most  important  provision,  by  which,  in  a  case  where  the 
absent  debtor  appears  and  defends  the  action  by  attorney, 
authorized  by  a  warrant,  not  only  is  the  lien  of  the  attach- 
ment preserved,  but  on  judgment  had  against  the  defendant, 
execution  may  be  levied  on  all  his  estate  and  effects.  The 
same  rule  obtains  if  the  defendant  appear  by  attorney,  and 
puts  in  bail  to  the  action;  but  if  defendant  fails  to  appear, 
the  judgment  had  against  him  only  operates  on  the  property 


1  Act  of  1744,  g  2,  3  Stat.,  618.  °  See  Acock  vs.  Linn,  Harper,  368. 

"Vana  vs. Frederick,  2  Bail.,  303.  d  Act  of  1843,11  Stat.,  '-'..7. 


62 

attached,  which  shall,  on  final  judgment  had,  he  delivered 
to  the  plaintiff.8 

The  reason  for  the  distinction  drawn  by  the  Act  between 
cases  where  the  defendant  appears  by  attorney  authorized 
by  warrant,  or  by  bail  put  in,  and  where  the  defendant  fails 
to  appear,  is  manifest;  for  by  his  own  appearance  and 
defence,  or  the  appearance  and  defence  of  one  authorized 
to  act  for  him,  the  proceeding  is  no  longer  ex  parte,  but  the 
case  is  fairly  presented  and  regularly  adjudicated  upon,  and 
it  is  no  hardship  to  the  defendant  that  the  remedy  of  the 
plaintiff,  (by  means  of  his  execution,)  should  be  extended  to 
property  other  than  that  attached.  It  is  presumed  that  where 
the  defendant  appears  in  person  and  defends  the  action, 
without  putting  in  bail,  the  same  rule  would  obtain,  and  the 
plaintiff  not  only  receive  the  fund  attached,  but  also  have 
execution  either  of  Ji.  fa.  or  ca.  sa.  against  the  property  or 
person  of  the  debtor.  The  Act  only  provides  that  no  judg- 
ment against  "an  absent  debtor"  shall  operate  against  any 
other  than  the  property  attached.  The  debtor,  by  appear- 
ing, is  no  longer  absent,  and  cannot  claim  a  protection  from 
the  attachment,  which  he  would  not  have  had  without  it. 
The  doctrine  of  the  earlier  cases,  that  the  process  cannot  be 
against  the  person  and  the  property  of  the  defendant  at  the 
same  time,b  has  been  altered  by  the  Act  of  1843,  which 
gives  the  plaintiff  a  right  to  the  funds  attached,  and  to  exe- 
cution of  Ji.  fa.  and  ca  sa.  against  all  the  property  and  the 
person  of  the  defendant,  in  cases  where  he  defends  the 
action  by  attorney ;  and  it  is  difficult  to  perceive  the  reason 
why  a  different  rule  should  obtain,  when  the  suit  is  defended 
b}"  an  attorney  authorized  by  warrant,  than  obtains  where 
the  defendant  himself  in  person  defends  the  suit. 

The  Courts  were  formerly  forced  to  declare  the  attach- 
ment dissolved  by  the  appearance  of  the  defendant;  but 
since  the  decision  that  the  process  could  not  be  against 

»  Act  of  1843,  11  Stat,,  256,  and  Act  of  1844.  \  4,  11  Slat..  291,  repealing  £  3  of 
Act  of  1744,  3  Stat.,  618;  Wigfall  vs.  Byne,  1  Rich.,  413  ;  Sliooter  vs.  McDuffie,  5 
Rich.,  63. 

b  Acock  vs.  Linn,  Harp.,  369;  Fife  &  Co.  vs.  Clark,  3  MeC,  347. 


63 

the  person  and  the  property  at  the.  same  time  have  been 
overruled,  what  obstacle  is  there  to  holding  (in  cases  where 
the  defendant  appears  in  person)  that  the  judgment  is  good 
against  all  the  effects  of  the  defendant,  and  the  lien  of  the 
attachment  undisturbed.  It  would  reconcile  the  language 
of  the  Statute  with  the  reason  of  the  rule  laid  down  by  the 
Court,  (in  Harper,  369,  and  3  McC,  347,)  and  prevents  the 
anomaly  of  a  defendant's  controlling  the  scope  and  effect  of 
a  judgment  by  his  mode  of  appearing  and  defending  the 
action. 

When  the  defendant  appears  in  person,  and  puts  in  special 
bail,  the  attachment  is  dissolved.  The  proceeding  hitherto 
in  rem  becomes,  by  the  putting  in  of  bail,  converted  into  a 
proceeding  in  personam,  and  the  suit  progresses  as  if  the 
defendant  had  been  originally  arrested  on  a  bail  writ  and 
given  bail.a 


INSOLVENT  DEBTORS  AND  PRISON  BOUNDS 

ACTS. 

We  have  traced  the  progress  of  a  suit  from  the  writ  to 
the  execution,  and  ordinarily  the  suit  there  ends,  but  there 
is  an  occasional  supplemental  proceeding.  The  debtor  may 
pray  the  benefit  of  the  Insolvent  Debtor  or  Prison  Bounds 
Act,  and  to  omit  all  notice  of  the  practice  under  these  Acts 
is  to  leave  the  history  of  a  suit  unfinished.  The  difficulty, 
however,  of  giving  anything  like  a  clear  systematized  view 
of  these  Acts,  is  so  great  as  almost  to  deter  from  the  attempt. 
It  is  hazarding  little  to  say,  that  no  two  Acts  of  the  Legisla- 
ture have  ever  given  so  much  embarrassment,  or  so  much 
perplexed  the  bench  and  bar  as  to  their  true  import  and 
effect.     But  the  very  difficulty  of  the  undertaking  furnishes 

a  Act  of  1744,  £  7,  3  Stat,,  620 ;  Fife  vs.  Clarke,  3  McC.,  347 ;  Crosbie  vs.  Reed, 
2  McMv  15  ;  Shooter  vs.  McDuffie,  5  Rich.,  63. 


64 

the  strongest  reason  why  the  attempt  should  be  made.  To 
leave  the  matter  untouched  hecause  difficult,  is  to  desert  the 
student  where  assistance  is  most  needed,  and  although  well 
aware  that  the  following  sketch  is  open  to  many  objections, 
and  is  possibly,  in  many  respects  deficient,  I  have  neverthe- 
less, concluded  (in  the  absence  of  any  other  treatise  on  the 
subject)  to  publish  it,  with  the  hope  that  if  it  does  not  fur- 
nish all  the  explanation  required,  it  may  yet  serve  to  point 
the  student  to  the  sources  whence  a  better  knowledge  may 
be  desired,  and  perhaps  stimulate  others  more  competent 
for  the  task,  to  furnish  something  better  worthy  of  reliance. 
Stating  thus  candidly  my  doubts,  I  proceed  to  examine  the 
Aets. 

These  two  Acts  cannot  be  construed  so  as  to  form  one 
regular  and  consistent  system. a  They  furnish  to  persons 
confined  for  debt  three  different  modes  of  relief  unlike  in 
substance  and  differing  in  effect.  The  construction  is  thus 
rendered  doubtful  and  obscure,  and  there  seems  to  be  not 
only  inconsistencies  but  actual  repugnancies.  The  only 
intelligible  arrangement,  perhaps,  will  be  to  classify  the 
various  provisions  and  clauses  of  the  several  Acts  under 
three  distinct  heads. 

1.  The  benefit  of  the  Rules. 

2.  The  benefit  of  the  Insolvent  Debtor  or  Ninety  Day 
Act. 

3.  The  benefit  of  the  Prison  Bounds  or  Ten  Day  Act. 
Prior  to  the  Act  of  1788,  an  applicant  for  the  benefit  of 

the  Insolvent  Debtor's  Act  was  obliged  to  go  to  jail  and 
there  remain  until  the  Court  decided  on  the  merits  of  his 
application  ;b  but  by  the  Act  of  1788  it  was  enacted  from 
motives  of  humanity,  that  the  prisoners  confined  for  debt, 
whether  on  mesne  or  on  final  process,  (see  §  1  and  3,)  shall 
be  entitled  to  the  prison  rules  or  limits,  (which  rules  were 
extended  three  hundred  and  fifty  yards  in  every  direction 
from  the  prison  walls,  and  subsecpiently  by  the  Act  of  1841, 
11    Stat.,    153,    so    extended  as    to    comprise   the  judicial 

»  Brevard's  Digest,  vol.  2,  p.  157.  b  See  the  Oath,  #  1.  Act.  of  1769,  4  Stat,,  87. 


65 

district,)  on  condition  of  giving  bond  with  security  to  the 
Sheriff,  not  to  transgress  the  limits. 

If  the  prisoner  is  arrested  on  mesne  process  the  condition 
of  the  bond  is  simply  as  above  stated,  viz :  Not  to  go 
beyond  the  prison  rules.  If  arrested  on  final  process  the 
condition  of  the  bond  is  not  to  go  beyond  the  rules,  and, 
-'also,  to  render  within  forty  days  from  the  date  thereof  a 
schedule  on  oath  of  his  whole  estate,  or  of  so  much  as  will 
pay  and  satisfy  the  sum  due  on  the  writ  of  execution,  and 
shall  also  at  the  expiration  of  the  notice  prescribed  under 
the  Insolvent  Debtors  and  Prison  Bounds  Acts  respect- 
ively, assign  and  surrender"  the  property  mentioned  in  the 
schedule.* 

It  will  thus  be  seen  that  it  is  perfectly  immaterial  whether 
the  prisoner  arrested  intends  taking  the  benefit  of  the 
Insolvent  Debtors  or  the  Prison  Bounds  Act,  the  mode  of 
obtaining  the  rules  is  the  same.  The  rules  are  in  effect 
nothing  but  a  release  of  the  prisoner  from  actual  confine- 
ment, and  do  not  in  any  way  prejudice  his  right  afterwards 
to  elect  which  Act  he  will  take  the  benefit  of. 

There  are,  however,  some  distinctions  between  the  rights 
of  prisoners  arrested  on  mesne  process,  and  prisoners 
arrested  on  final  process,  which  it  is  proper  to  notice. 

1st.  A  prisoner  arrested  on  mesne  process,  may  at  any 
lime  apply  for  the  rules,b  whilst  a  prisoner  on  final  process 
must  apply  "  within  forty  days  after  being  taken  in  execu- 
tion." (§  3,  1788.)  A  prisoner  on  execution  may,  however, 
remain  in  actual  confinement  up  to  the  fortieth  day  and 
then  give  bond  for  the  rules,  and  proceed  to  take  the  benefit 
of  the  Act,  filing  his  schedule  within  forty  days  from  the 
date  of  his  bond.0 

2d.  A  prisoner  on  mesne  process  can  file  his  schedule  at 
any  time,  whilst  a  prisoner  on  final  process  must  file  it  within 


a  See  form  of  bond,  Miller's  Compilation,  227,  228;  Act  of  1788,  g  2  and  3,  5  Stat.. 
78;  Muldrow  vs.  Bacot,  2  McM.,  363. 

h  Act  of  1788,  g  2.     See  Brevard's  Digest,  vol.  2.  p.  148,  note. 

<■■  See  \  |  and  6  of  Act  of  1788,  and  Walker  vs.  Briggs,  1  Hill,  121. 


66 

forty  days  from  the  date  of  his  bond,  or  he  debarred  the 
benefit  of  the  rules  and  the  Insolvent  Debtors  Act." 

The  rules  being  granted,  the  next  question  for  the 
prisoner  to  decide,  is  for  what  Act  lie  will  apply,  the  Insol- 
vent Debtors  or  the  Prison  Bounds.  If  his  arrest  was  on 
final  process,  then  by  the  terms  of  his  bond  he  has  until  the 
expiration  of  forty  days  from  the  date  of  his  bond  in  which 
to  deeide.  If,  however,  the  defendant  was  arrested  on  final 
process  and  has  not  taken  the  benefit  of  the  rules,  then  he 
must  apply  for  the  benefit  of  the  Insolvent  Debtors  Act 
within  forty  days  from  his  arrest,  for  if  he  remains  in  actual 
confinement  on  execution  above  forty  days,  he  is  debarred 
the  benefits  of  the  Act.b  * 

If  his  arrest  was  on  mesne  process,  he  may,  I  presume, 
apply  at  any  time  for  either  Act  ;  (see  §  4,  1788,  and 
Brevard's  Digest,  vol.  2,  148,  notes,)  for  I  have  not  been 
able  to  find  any  positive  authority  on  the  point. 

Having  shown  the  manner  of  obtaining  the  rules,  we 
come  to  the  Insolvent  Debtors  Act,  and,  1st.  Who  are 
entitled  to  it. 

"Any  person,"  free  persons  of  color  included,0  "sued, 
impleaded  or  arrested  for  any  debt,  duty,  demand,  cause,  or 
thing  whatsoever,"  "  unless  sued,  impleaded  or  arrested  for 
damages  recovered  in  an  action  for  wilful  maihem  or  wilful 
and  malicious  trespass,  or  for  damages  recovered  in  any 
action  for  voluntary  and  permissive  waste,  or  for  damages 
done  the  freehold,"11  is  entitled  to  the  benefit  of  the  Act. 

A  defendant  imprisoned  under  execution  in  case  of  slan- 
der,6 or  in  an  action  of  assault  and  battery/  or  for  damages 

a  Act  of  1788,  #  7,  5  Stat.,  78;  and  Stover  vs.  Duren,  2  McCord,  266. 

*>  Act  of  1788,  %  6. 

*  In  the  former  edition,  it  was  laid  down  that  the  defendant  being  in  actual  con 
finernent  on  execution  above  forty  days,  deprived  him  of  the  benefit  of  the  Act,  and 
that  it  therefore  was  necessary  to  take  the  rules  in  order  to  secure  the  benefit  of  the 
Act.     The  better  construction  is    the  above,  which  limits  the  forty  days'  confine- 
ment to  that  preceding  the  application  for  the  Act. 

c  Rodgers  ads.  Norton,  Harp.,  5  ;  Glenn  vs.  Lopez.  Ibid,  105. 

d  Act  of  1759,  #  8,  and  Act  of  1788,  \  7. 

eWallingsvs.  Jennings,  1  McC,  10. 

f  Bampfield  vs.  Elland,  2  McC,  182. 


67 

recovered  in  an  action  for  malicious  prosecution, a  or  for 
damages  recovered  in  an  action  of  trespass,  quare  clausum 
fregit  is  entitled  to  the  benefit  of  the  Act,  the  term  "damage 
to  the  freehold,"  being  restricted  to  damages  in  the  nature 
of  waste.b  So,  too,  under  the  term  "wilful  and  malicious 
trespass,"  are  included  only  such  cases  as  by  the  Statutes 
22  and  23,  Charles  II,  c.  7,  fall  under  the  head  of  malicious 
mischief.0 

A  debtor  is,  however,  excluded  from  the  benefit  of  the 
Act,  if  lie  hath  given  more  than  one  hundred  pounds  proc- 
lamation money  to  any  of  his  children  on  their  marriage, — 
unless  he  show  himself  clear  of  debt  at  the  time;  or  have 
lost  in  any  one  day  the  sum  of  £5  proc,  or  in  all,  the  sum 
of  X20  proc,  within  the  space  of  twelve  months  preceding 
his  petition,  by  gambling,  horse  racing,  or  betting ;d  or  hath 
been  confined  on  execution  above  forty  days ; e  or  hath  ren- 
dered in  a  false  schedule  of  his  effects  ;f  or  hath  been  seen 
without  the  prison  rules ; g  or  shall  have  spent  more  than  two 
shillings  and  sixpence  a  day;  or  who  shall  have  within  three 
months  before  his  confinement,  or  at  any  time  since,  paid  or 
assigned  his  estate  or  any  part  thereof  to  one  creditor  in 
preference  to  another,  or  fraudulently  sold,  conveyed  or 
assigned  his  estate  to  defraud  his  creditors.11* 

The  cases  upon  the  latter  clause  of  fraudulent  preference 
are  numerous  and  conflicting,  and  it  is  difficult  to  deduce 
from  them  any  general  rule.  The  distinction,  however,  is 
clearly  drawn  between  paying  a  creditor  and  preferring  him 
to  the  prejudice  of  others.     The  mere  fact  of  paying  one 


a  Walker  vs.  Briggs,  1  Hill,  130. 

*  Smith  &  Blair  vs.  Hogg,  2  Kich.,  SO. 
«  Braker  ads.  Knight,  3  McC,  80. 

a  Act  of  1759,  §8. 

'  Act  of  1788, §  6. 

f  Act  of  1788,  §  10. 

e  See  Glenn  vs.  Lopez,  Harper,  105. 

h  Act  of  1788,  $  7. — This  section,  although  a  part  of  the  Prison  Bounds  Act, 
applies  equally  to  cases  under  the  Insolvent  Debtors'  Act.  See  Dobson  vs.  Teasdale, 
■4  McC,  81,  and  Glenn  vs.  Lopez,  Harper.  Ids 

*  See,  however,  po«<  page  74. 


68 

creditor  within  three  months  before  the  confinement  of  the 
debtor,  does  not  of  itself  exclude  the  debtor  from  the  benefit 
of  the  Act — to  do  that,  the  payment  must  have  been  made 
with  a  view  to  a  fraudulent  preference  of  that  creditor,  or  in 
the  terms  of  the  Act,  it  must  have  been  an  "undue  prefer- 
ence."11 The  mere  intentional  preference,  even,  is  not  suf- 
ficient to  constitute  a  fraud — it  must  be  such  an  intentional 
preference  as  altogether  to  delay,  defeat  or  hinder  another 
creditor  from  being  paid.1' 

The  preference  must  not  only  be  undue  and  fraudulent, 
but  it  must  also  have  been  made  by  the  defendant  within 
three  months  before  his  confinement,  or  since,  and  by  the 
term  confinement  is  meant  not  the  arrest  on  mesne  process, 
but  the  confinement  from  which  he  petitions  to  be  dis- 
charged.0 This  limitation  as  to  time  does  not,  however, 
extend  to  cases  where  the  debtor  has  "fraudulently  sold, 
conveyed  or  assigned  his  estate  to  defraud  his  creditors" — 
such  conveyance  or  assignment,  whenever  made,  is  inopera- 
tive; and  even,  where  from  circumstances  the  conveyance 
might  be  good  and  valid  in  the  hands  of  the  alienee,  the 
fraud  deprives  the  debtor  of  the  benefit  of  the  Act,  which 
provides  the  means  of  discharge  only  for  the  honest,  fair- 
dealing  insolvent.11 

Although  fraud  in  the  assignment  or  preference  by  the 
insolvent  will  deprive  him  of  the  benefit  of  the  Act,  a  fraud 
committed  in  obtaining  the  goods,  for  the  value  of  which  he 
was  arrested,  has  not  the  same  effect.  It  is  not  a  fraudulent 
purchase  of  the  goods,  but  a  fraudulent  assignment  of  them 
which  excludes  from  the  benefit  of  the  Act;6  so,  too,  a 
mere  attempt  to  defraud,  not  consummated,  is  insufficient 
to  deprive  the  applicant  of  the  benefit  of  the  Act, 


a  Creytor  &  Sloar  vs.  Dickcrson,  3  McCord,  438  ;  Stover  vs.  Duren,  2  MeCord, 
266;  Dobscm  vs.  Teasdale,  -i   M   Cord,  81. 

b  See  Walker  vs.  Briggs,  1  Hill.  126;  Smith,  Wright  &  Co.  vs.  Campbell,  Rice. 
367  :  Weed  &  Fanning  vs.  Evans.  2  Spear,  237;  Crenshaw  vs.  Wetsel,  2  Hill,  418; 
McKensie,  Cadow  &  Co.  vs.  Gran  son,  10  Rich..  238. 

c  Bulwinkle  vs.  Grube,  .';  Rich.,  293. 

''  See  Heming  vs.  Close,  3  Stat.,  365  ;   Wiley,  Banks  &  Co.  vs.  Lawson.''  Rich.,  155. 

t:  Mairs  vs.  Smith,  Harper,  128. 


69 

If  the  plaintiff  at  whose  suit  the  debtor  was  arrested, 
discharge  him,  he  cannot  obtain  the  benefit  of  the  Act, 
even  though  he  may  have  applied  for  the  Act,  and  given 
the  notice  required.11 

A  defendant  who  has  been  arrested  on  mesne  process,  and 
given  bail,  and  then  procured  his  bail  to  surrender  him,  may 
take  the  benefit  of  the  Act.b 

Having  shown  Avho  is  entitled  to  the  benefit  of  the  Act, 
we  come  to  the  second  branch  of  the  subject — the  manner 
of  obtaining  it. 

The  debtor  having  made  his  election,  to  take  the  benefit 
of  the  Insolvent  Debtors  Act,  must  file  his  petition.  A 
petition  is  only  necessary  when  the  Insolvent  Debtors  Act  is 
applied  for,0  and  must  be  addressed  to  the  Justices  of  the 
Court,  whence  the  process  issued,  a  Commissioner  of  special 
bail  having  no  jurisdiction  under  the  Insolvent  Debtors  Act.d 
A  form  of  the  petition  will  be  found  in  the  appendix. 

The  petition  is  filed  with  the  Clerk,  the  applicant  notify- 
ing him  of  what  Act  he  prays  the  benefit  of,  and  thereupon 
the  Clerk  gives  the  necessary  notice,  calling  on  the  creditors 
to  appear  at  a  certain  day,  and  show  cause,  if  any  they  have, 
why  the  insolvent  should  not  be  discharged.6  The  applica- 
tion for  the  benefit  of  the  Act  must  not  of  necessity  be  made 
at  the  next  term  of  the  Court  succeeding  the  filing  of  the 
petition,  even  though  ninety  days  intervene  between  the 
filing  of  the  petition  and  the  sitting  of  the  Court;  the  peti- 
tioner is  in  time  if  the  notice  required  by  the  Act  is  given 
to  the  second  term,  and  the  application  may  then  be  made.* 
The  notice  must  be  published  for  three  months  in  a  gazette, 
unless  a  different  mode  of  publication  is  authorized  by  a, 
special  order  of  the   Court.g      On  filing  his  petition,   the 

a  Clarke  vs.  Simpson,  1  McM.,  287. 
b  Ex  parte,  Ridgill,  5  Rich.,  427. 
c  Muldrow  vs.  Bacot,  2  McM.,  36:4. 

d  Act  of  1759,  I  1;   Spears  vs.  Terry,  1  Treadway.  499. 

o  Muldrow  vs.  Bacot,  2  McM.,  363 ;  Betha  vs.  Nixon.  1  Strob.,  148;  ex  parte- 
Cantey,  11  Rich.,  525. 

f  Ex  part|  bantey,  11  Rich.,  520. 

8  Act  of  1759,  #  1 ;  Mordecai  vs.  LaRissey,  1  Rich.,  192. 


70 

applicant  must  render  in  on  oath,  a  schedule  of  his  whole 
estate."  Until  sworn  to,  the  plaintiff  may  treat  any  schedule 
filed  as  mere  blank  paper ; b  but  if  the  applicant  omits  to 
swear  to  it  when  filed,  he  may  on  good  cause  shown,  be 
permitted  to  swear  to  it  nunc  pro  tunc.0 

When  the  applicant  has  been  arrested  on  final  process,  the 
schedule  must  be  filed  within  forty  days  from  the  date  of  his 
bond,  and  in  computing  the  time,  the  day  of  the  date  of  the 
bond  is  excluded.d  If  not  filed  within  that  time,  the  appli- 
cant is  debarred  the  benefit  of  the  Act,  whether  the  omis- 
sion was  accidental  or  fraudulent.6  If,  however,  sickness 
intervene,  so  as  to  prevent  the  applicant  himself,  or  the 
attorney  with  whom  he  has  left  the  schedule,  from  filing  it, 
such  sickness  is  a  sufficient  excuse  for  the  neglect/ 

When  the  applicant  has  been  arrested  on  mesne  process,  he 
may,  as  has  already  been  stated,  file  bis  schedule  at  any 
time.6 

The  schedule  must  contain  an  account  of  the  real  and 
personal  estate  of  the  applicant,  with  the  dates  of  the  secu- 
rities, wherein  any  part  of  it  consists,  and  the  deeds,  notes 
or  vouchers  relating  thereto,  and  the  names  of  the  witnesses 
to  the  same,  as  far  as  his  knowledge  extends.  (1  §,  1759.) 
A  contingent  interest,  whether  by  executory  devise,  or 
remainder  in  real  or  in  personal  property,  is  such  property 
as  should  be  included  in  the  schedule.11  In  short,  the 
schedule  must  contain  the  whole  estate  of  the  insolvent 
debtor,  as  it  existed  at  the  time  of  making  the  schedule — 
his  interests  in  expectancy  as  well  as  his  interests  in  posses- 
sion being  included. 

If  the  applicant  has,  through  inadvertance,  ignorance  or 
mistake,  omitted   to   include   in    his  schedule,  property  in 

I  2  4,  1788;  see  oath  taken  by  applicant,  -J  1,  1759. 
b  Walker  vs.  Briggs,  1  Hill,  124. 

c  Brevard  vs.  Wylie,  1  Rich.,  41. 

d  McElwee  vs.  White,  2  Rich.,  96. 

e  Storer  vs.  Duren,  2  McCord,  266. 

f  Crovat  vs.  Coburn,  3  McCord,  14;  Blackwell  vs.  Wilson,  2  Rich.,  323. 

s  See  ante  p.  65. 

II  Clerry  vs.  Spears,  2  Spear,  6S7;  Hutchinson  vs.  Love,  1  Spear,  145. 


71 

which  he  has  any  interest,  he  may  be  permitted  to  amend 
his  schedule,  after  it  is  tiled ; a  and  even  after  suggestions 
impeaching  the  schedule  have  been  filed  ;b  the  granting  of 
leave  to  amend  the  schedule,  is  within  the  discretion  of 
the  Court,  but  satisfactory  proof  should  be  made  by  affida- 
vit, that  the  omission  arose  from  ignorance,  inadvertance  or 
mistake.  If  it  arises  from  fraud,0  or  if  the  motion  is  not 
made  until  the  issue  made  up  to  test  the  validity  of  the 
schedule,  is  about  to  be  tried;'1  or  if  the  motion  operates  to 
surprise,  or  delay  the  creditors,  permission  to  amend  will 
not  be  granted.  When  the  amendment  of  the  schedule 
removes  the  objection  set  forth  in  the  suggestions,  there  is 
then  nothing  to  go  to  the  jury,  and  the  commissioner  may 
grant  an  order  of  discharge.6 

When  the  applicant  is  permitted  to  amend  his  schedule, 
the  plaintiff  has  the  same  right  to  examine  him,  touching 
the  new  matter,  as  he  had  to  examine  him  on  the  original 
schedule,  (Hyatt  vs.  Hill,  2  McM.,  56,)  and  by  parity  of 
reasoning  the  plaintiff  has  the  right  to  file  additional  sug- 
gestion of  fraud,  based  on  the  new  matter. 

The  schedule  being  filed,  and  the  notice  published  on  the 
day  appointed,  the  applicant  and  the  creditors  appear  before 
the  Court.  If  the  creditors  do  not  appear,  there  must  be 
proof  made  by  affidavit,  of  the  due  publication  of  the  notice, 
before  the  matter  can  proceed/  The  creditors  appearing,  or 
the  publication  of  the  notice  being  proved,  the  Court  pro- 
ceeds in  a  summary  way  to  examine  into  the  matter  of  the 
petition,  and  hear  what  shall  be  alleged  for  or  against  the 
discharge  of  the  petitioner^  who  being  sworn  to  answer 
truly,  may  be  examined  touching  the  truth  of  his  schedule, 
and  touching  the  nature  and  extent  of  his  property,  rights 
and  credits,  liable  to  be  assigned  for  the  benefit  of  his  credi- 

a  Bingley  vs.  Smart,  1  McC,  29;  Prescott  vs.  Hubbell.  2  McC,  64. 

b  Craig  vs.  Pinson,  2  Spear,  179. 

c  Bingley  vs.  Smart,  1  McC,  29. 

d  Sherman  &  DeBruhl  vs.  Barrett,  1  McM.,  150. 

e  Craig  vs.  Pinson,  2  Spear,  179;  Bowen  vs.  Holleyman,  9  Rich.,  66. 

f  BettisTs.  Nixon,  1  Strob.,  151. 

*g  1,  Act  1759. 


72 

tors;  and  the  refusal  of  any  such  applicant  to  answer  fully 
and  directly  all  or  any  proper  questions  put  to  him  in  the 
course  of  such  examination,  shall  prevent  his  discharge,  if 
otherwise  entitled  thereto,  until  he  shall  have  fully  answered 
the  same,  (Act  of  1836,  §  1,  6  Stat.,  556,)  and  if  it  appear  on 
such  examination,  that  he  has  kept  books  in  relation  to  his 
trade  or  occupation,  he  may  be  compelled  to  produce  them, 
if  in  his  power  to  do  so,  (§  2,  Ibid.)  If  on  such  examina- 
tion, the  Judge  is  satisfied  that  the  applicant  has  been  guilty 
of  fraud,  he  is  bound  to  refuse  the  application  ad  interim^  and 
order  a  suggestion  to  be  filed,  and  an  issue  made  up,  in 
which  the  creditor  shall  be  actor,  so  that  the  matter  may  be 
tried  by  a  jury.8.  This  course  has  been  adopted  since  Zilstra's 
case,  (2  Bay,  147,)  from  a  construction  in  favor  of  the  liberty 
of  the  subject,  rather  than  from  any  direct  legislative  enact- 
ment. If  the  Judge  is  not  satisfied  of  the  fraud  of  the 
applicant,  but  the  creditor  opposes  the  discharge,  either  for 
fraud  appearing  in  the  schedule,  or  for  fraud  discovered  on 
the  examination,  or  because  the  applicant  has  given  an 
undue  preference,  or  made  a  fraudulent  assignment,  or  gone 
without  the  prison  rules,  the  creditor  may  by  leave  of  the 
Court,  file  suggestions  of  fraud,  or  the  Judge  may  in  his 
discretion  empanel  a  jury  to  try  the  facts  alleged.b  In 
Zilstra's  case,  (2  Bay,  149,)  it  was  held  that  "affidavits  ought 
in  all  cases  to  be  produced  to  warrant  the  Court  in  sending 
the  case  to  a  jury,  on  a  suggestion  of  fraud,"  and  the  same 
principle  was  decided  in  Baker  vs.  Bushnell,  1  McM.,  67, 
but  in  Sherman  &  DeBruhl  vs.  Barrett,  it  was  held  that 
"whenever  the  right  of  a  prisoner  to  be  discharged,  is 
resisted  on  the  ground  of  fraud,  there  is  nothing  which 
recpiires  that  there  should  be  any  showing  on  oath,"  but 
that  if  the  result  of  the  allegation  would  be  to  "delay  the 
hearing  of  the  debtor's  application,"  then  affidavits  might, 
in  the  exercise  of  a  sound  discretion,  be  required  by  the 
Judge. 

The    applicant,  however,  after  pleading   to  the  sugges- 

a  Roser  vs.  Moye,  1  Rich.,  64. 

"  I  7,  Act  of  1788;  Creyton  &  Sloan  vs   Dickerson,  3  McC,  43S. 


73 

tions,  cannot,  except  to  the  want  of  affidavits,  the  pleading 
over  cures  the  defect.* 

Hitherto  it  has  been  considered  that  the  suggestions  were 
filed  after  the  examination,  but  it  is  allowable  for  the  plain- 
tiff to  file  suggestions  as  soon  as  the  schedule  is  filed,  and 
before  any  examination  had  ;  and  sometimes  it  is  expedient 
to  do  so,  as  the  issue  is  thereby  made  up  for  the  ensuing 
session  of  Court,  and  a  term  saved. 

The  suggestions  are  drawn  up  in  the  nature  of  a  declara- 
tion, but  need  not  be  in  accordance  with  the  strict  rules  of 
pleading  ;  it  is  sufficient,  if  they  set  out  in  a  plain,  intelli- 
gible manner,  the  grounds  of  the  complaint,  and  defendant 
is  only  required  to  set  forth  his  defense  in  the  same  plain, 
intelligible  manner.b  After  the  issue  is  made  up  between 
the  parties,  no  new  specification  can  be  added,  unless  as 
has  been  above  shown,  amendments  to  the  schedule  are 
made.0 

The  issue  being  made  up,  the  cause  is  to  be  tried  by  a  jury, 
at  the  next  ensuing  session  of  Court,  or  unless  objections 
are  interposed,  it  may  be  sent  to  the  jury  then  in  attendance 
on  the  Court. 

In  general  the  debtor  should  be  present  at  the  rendering 
of  the  verdict  upon  his  application,  and  if  the  plaintiff 
should  then  desire  to  have  the  body  of  the  debtor  recom- 
mitted to  prison,  the  Judge  may  make  the  order. 

If  the  applicant  is  convicted  of  fraud,  or  is  out  under 
bond  for  the  rules,  it  is  proper  for  the  Circuit  Judge  to  hear 
and  determine  a  motion  for  his  arrest,  although  such  order 
does  not  seem  to  be  absolutely  necessary.  The  liability  of 
the  sureties  on  the  bond  for  the  rules  continues  until  the 
defendant  is  retaken.3 

If  either  party  is  dissatisfied  with  the  finding  of  the  jury 
empanelled  to  try  the  suggestions  or  with  the  order  of  the 


a  Baker  vs.  Bushnell,  1  McM.,  67,  and  Ibid,  161. 

b  Blair  &  Co.,  vs.  Thomas  Dudley,  291:  Gray  vs.  Schroder.  2  Strob..  136. 
c  Bentley  vs.  Page,  2  McM.,  53;  Morein  vs.  Solomons,  7  Rich.,  105,  and  see  ante 
page  7 1 . 

d  Mack  &  Smith  vs.  Garrett,  10  Rich.,  79. 


74 

Judge,  they  have  a  right  of  appeal.  If  the  creditor  appeals, 
the  insolvent  has  the  right  to  go  at  large  pending  the  appeal, 
but  as  soon  as  the  order  of  the  Cireut  Court  is  reversed,  he 
must  surrender  himself  or  forfeit  his  right  to  a  discharge.* 
If  the  insolvent  appeals,  he  has  the  right  to  remain  within 
the  prison  hounds,  pending  the  appeal. b  If  he  abandons 
his  appeal  he  should  surrender  himself,  or  be  surrendered  by 
his  sureties  to  the  bond  for  the  rules.  If  this  is  not  done, 
an  order  for  his  re-arrest  may  he  had  from  the  Circuit  Judge 
at  the  term  next  succeeding  the  abandonment  of  the  appeal, 
reasonable  notice  of  the  motion  being  served  upon  the 
insolvent.0 

If  the  defendent  is  found  guilt}'  of  rendering  a  false 
schedule,  he  is  forever  deprived  of  the  benefit  of  the  Act, 
for  the  relief  of  insolvent  debtors,  and  also  of  the  Prison 
Bounds  Act,  and  may  be  remanded  to  jail,  and  is  further 
liable  to  suffer  the  penalties  of  wilful  perjury.d 

If  guilty  of  a  fraudulent  preference,  or  of  any  of  the 
offences  specified  in  the  seventh  section  of  the  Act  of  1788, 
he  shall  not  be  discharged,  "  without  fully  satisfying  the 
action  or  execution  on  winch  he  is  confined." 

It  is  a  generally  received  opinion,  even  among  the  pro- 
fession, that  a  fraudulent  preference  committed  within  three 
months  before  confinement,  deprives  the  applicant  of  the 
benefit  of  the  Insolvent  Debtors  Act,  and  the  language  of 
the  cases  seems  to  confirm  that  opinion,6  but  the  seventh 
section  of  the  Act  only  provides  that  in  case  of  fraudu- 
lent preference,  the  applicant  shall  not  be  discharged,  "with- 
out fully  satisfying  the  action  or  execution  on  which  he  is  confined." 
Suppose  the  debtor  to  have  been  found  guilty  of  an  undue 
preference,  but  that  after  the  verdict  he  fully  satisfies  the 
action  or  execution  on  which  he  is  confined ;  by  the  terms  of 
the  Act  he  is  entitled  to  his  discharge  ;  but  what  is  the  effect 

*  Baker  &  Co.,  vs.  Bushnell,  1  McM.,  274. 

b  Bulwiukle  vs.  Grube,  5  Rich.,  295  ;  Mack  &  Smith  vs.  Garrett,  10  Rich..  82. 
c  Mack  &  Smith  vs.  Garrett,  10  Rich.,  79. 

d  g  15,  Act  1759  ;  §  10,  Act  1788;  see  Bulwinkle  vs.  Grube,  5  Rich.,  295. 
e  See  1  McM.,   161,  7  Rich.,  472;  Harper,  108;  1  Hill,  126;  Rice,  367;  2   McC 
266. 


75 

of  that  discharge  ?  Is  it  to  be  considered  as  a  discharge 
under  the  Act,  or  merely  a  discharge  at  common  law,  arising 
from  the  satisfaction  of  the  claim  on  which  the  debtor  was 
arrested?  The  debtor  has  taken  the  rules,  filed  a  schedule, 
and  applied  for  his  discharge  under  the  provisions  of  the 
Act — an  objection,  rendered  valid  by  the  Act  is  made  against 
his  discharge — he  removes  it  in  the  manner  specified  by 
the  Act,  (by  satisfaction)  the  preference  is  no  longer  "  to 
the  prejudice  of  the  plaintiff,"  and  he  is  discharged.  Since 
all  the  proceedings  have  been  under  the  Act,  why  should 
not  the  discharge  which  is  the  result  of  those  proceedings 
be  equally  referred  to  the  Act,  and  the  discharge  be  a 
release  from  the  claims  of  all  suing  creditors  and  a  protec- 
tion from  all  other  creditors  for  the  space  of  twelve  months. 
If  all  the  suing  creditors  had  taken  bail,  nothing  would  be 
gained,  but  if  any  of  them  had  omitted  so  to  do,  their 
claims  would  be  wholly  gone. 

But  concede  that  the  discharge  is  merely  a  discharge  at 
common  law.  It  still  operates  as  a  protection  to  the 
debtor,  for  on  any  subsequent  application  for  the  Act,  the 
fraudulent  preference  of  which  he  was  found  guilty  cannot 
be  complained  of;  for  as  the  first  application  necessarily 
required  three  months'  notice,  the  preference  cannot  on  the 
second  application,  be  alleged  as  committed  "  within  three 
months  before  confinement,"  and  by  the  term  confinement 
is  meant  "  the  confinement  from  which  the  applicant  has 
petitioned  to  be  discharged.  (Bulwinkle  vs.  Grube,  5  Rich., 
293,)  and  thus,  although  the  insolvent  may  have  been  guilty 
of  a  fraudulent  preference,  his  creditors  cannot  avail  them- 
selves of  it  to  prevent  his  discharge. 

If  the  examination  before  the  Judge  is  satisfactory,  or  the 
jury  find  a  verdict  of  not  guilty  on  the  suggestions  of  fraud, 
the  applicant  is  permitted  to  take  the  oath  prescribed,  (see  § 
1, 1759,  and  Miller's  Compilation, p.  172,)  which  must  be  done 
in  open  Court.  Upon  the  applicant's  taking  the  oath,  the 
Court  may  deliver  up  to  him  so  much  of  his  bedding,  wear- 
ing apparel,  tools,  &c,  as  they  shall  deem  suitable,  and  also, 
the  homestead  and  fifty  acres  of  land,  according  to  the  pro- 


76 

visions  of  the  Act  of  1851,  (12  Stat.,  85,)  in  cases  where 
that  Act  applies,  which  order  is  entered  on  the  minutes  of 
the  Court,*  and  "  immediately  thereupon"  the  Court  shall 
order  the  applicant  "by  a  short  endorsement  on  the  back  of 
his  petition,"  to  assign  the  effects  contained  in  his  schedule 
to  the  creditor  at  whose  suit  the  debtor  stands  charged,  or 
to  such  other  person  as  the  Court  may  direct.1*  If  the  debtor 
refuses  for  the  space  of  ten  days  to  make  the  assignment 
pursuant  to  the  order  of  the  Judge,  he  forfeits  his  right  to 
the  prison  rules  and  may  be  recommitted  to  close  confine- 
ment, provided  he  was  taken  "  in  execution  on  final  pro- 
cess."0 If  the  applicant  has  been  arrested  on  mesne  process, 
then,  if  he  refuse  to  assign  and  surrender  the  property  men- 
tioned in  his  schedule,  at  the  expiration  of  the  notice  pre- 
scribed for  the  Insolvent  Debtors  and  Prison  Bounds  Acts 
respectively,  he  is  in  like  manner  deprived  of  the  benefit  of 
the  rules  and  his  bond  forfeited.*1 

The  applicant  must  not  only  make  the  assignment  re- 
quired, but  he  must  also  deliver  into  the  possession  of  the 
assignee  the  effects  assigned,  and  he  is  not  entitled  to  his 
discharge  until  he  does.6  If  all  the  effects  mentioned  in  the 
schedule  are  not  within  his  power,  so  as  to  be  delivered  up, 
he  must  deliver  all  that  he  can  and  within  six  months  after 
his  discharge,  must  deliver  up  all  "  such  as  shall  be  after- 
wards in  his  power  to  deliver,"  or  be  remanded  to  jail.' 

The  property  thus  assigned  and  delivered  vests  in  the 
assignee  in  trust  for  such  creditors  as  shall  be  willing  to 
receive  a  dividend,  and  shall  present  their  demands  within 
twelve  months  after  the  filing  of  the  petitions  The  assignee 
is  impowered  to  sue  for  and  collect  all  debts  due  the  appli- 
cant, and  any  debts  paid  to  the  debtor  after  his  discharge 
may  be  recovered  from  the  payer,  the  debtor's  receipt  being 


a  Act  of  1759,  §  1  :  and  see  Miller's  Compilation,  p.  173.  b  Ibid. 

c  See  Act  of  1840;  11  Stat.,  121. 
d  Act  of  1841:  11  Stat.,  153. 

e  Act  of  1759,  I  1:    Burns    vs.   Evans,  3  Hill,  296,:  Act  of  1841,    11  Stat.,    153: 
Walker  vs.  Riley,  10  Rich.,  87. 

f  Ibid.  s  Ibid. 


77 

no  discharge.'  The  duties  devolving  on  the  assignees  are 
set  forth  in  the  third  section  of  the  Act  of  1759.  See  also 
Cleverly  vs.  McCollough,  6  Rich.,  519. 

The  assignees  take  the  property  subject  to  all  incum- 
brances, liens,  &c,  to  which  it  was  subject  in  the  hands  of 
the  assignor.  (Mairs,  et  at,  vs.  Smith,  3  McC,  62;  Assignees 
of  Cohen  vs.  Assignees  of  Grier,  4  McC,  509.)  It  is  the 
balance  only  after  payment  of  incumbrances  which  is  vested 
in  them.  (Lowrie's  Assignees  vs.  "Williamson,  3  McC, 
247).  It  is  necessary,  however,  for  the  parties  to  whom 
the  insolvent  has  assigned,  mortgaged,  or  conveyed  in  trust 
any  part  of  his  property,  or  their  authorized  agents  to 
appear  before  the  Court  at  the  time  appointed  by  the  notice 
for  the  hearing  of  the  applicant's  petition,  and  render  in  on 
oath  a  true  account  of  the  moneys  due  on  such  assignment, 
mortgage,  or  conveyance;  and  if  the  property  appears  to  be 
worth  more  than  the  debt  due  upon  it,  the  Court  shall 
order  it  to  be  sold  by  the  assignees  of  the  insolvent,  and  to 
apply  the  proceeds  first  to  the  discharge  of  the  sums  due 
such  assignee,  mortgagee,  or  person  to  whom  the  convey- 
ance was  made,  and  to  apply  the  residue  in  like  manner  as 
the  rest  of  the  insolvent's  estate  is  to  be  applied.  (§  4, 
1759.)  Notwithstanding  the  mortgage,  or  other  incum- 
brance, the  assignee  of  the  insolvent  is  entitled  to  the  pos- 
session of  the  property  assigned,  mortgaged,  or  conveyed 
in  trust,  and  if  it  is  withheld  by  the  incumbrancer,  trover 
will  lie  by  the  assignee.     See  McLeish  vs.  Tylee,  4  Strob. 

The  fifth  and  sixth  sections  of  the  Act  of  1759  simply 
provide  further  time  for  absent  or  sick  assignees,  mortgagees, 
&c,  to  come  in  and  prove  their  liens,  and  the  seventh  sec- 
tion enacts,  that  if  they  do  not  come  in  and  prove  the  bona 
fide  nature  of  the  debt  for  which  such  assignment,  mort- 
gage, or  conveyance  in  trust,  was  made  as  security,  they 
shall  lose  their  lien,  and  the  mortgage,  assignment,  or  con- 
veyance be  deemed  fraudulent  and  void.b 

a  Act  of  1759,    g  17;  Tibbets  vs.  Weaver,  5  Strob.,  144. 
b  Purtenus  vs.  Sullivan,  1  McC,  397. 


78 

The  effects  mentioned  in  the  schedule  having  been 
assigned  and  delivered  to  the  assignee.  The  applicant 
is  discharged  and  is  entitled  to  receive  his  certificate  of 
discharge,  (for  form  of  discharge  see  Miller,  page  173.) 

The  discharge  releases  the  insolvent  from  all  suing  credi- 
tors, and  from  such  other  creditors  as  shall  come  in  within 
twelve  months  and  present  their  claims  and  accept  a  divi- 
dend of  the  assigned  effects/ 

As  to  creditors  who  do  not  accept  under  the  assignment. 
they  are  restricted  from  suing  on  their  claims  for  twelve 
months  after  the  discharge,6  but  as  a  protection  to  such 
creditors  the  insolvent  can  never  plead  the  Statute  of  Limi- 
tation against  such  claims/'  and  the  creditors,  in  order  to 
prevent  loss  by  the  failure  of  testimony,  may  prove  their 
debt  against  the  insolvent  at  the  time  of  the  discharge;  it 
is  not  obligatory  on  them,  however,  to  do  so.  (King  vs. 
Westendorff,  Dud.,  245,  and  Sinclair  vs.  Lynah,  1  Spear, 
246.) 

We  now  come  to  the  Prison  Bounds  Act,  and  as  no  person 
is  entitled  to  the  benefit  of  the  Prison  Bounds  Act  who  is 
not  entitled  to  the  Insolvent  Debtors  Act,  (State  vs.  Gee 
1  Bay,  163,)  a  reference  to  the  cases  under  the  latter  Act  is 
all  that  is  necessary  on  this  point. 

The  mode  of  obtaining  the  benefit  of  "the  rules"  has 
already  been  shown,  and  as  to  them,  there  is  no  difference 
whether  the  prisoner  intends  taking  the  benefit  of  the 
Insolvent  Debtors,  or  of  the  Prison  Bounds  Act,  but  the 
same  distinction  exists  as  to  the  time  within  which  the 
defendant  must  apply  for  the  Prison  Bounds  Act,  when  he 
has  been  arrested  on  mesne,  and  when  he  has  been  arrested 
on  final  process,  that  has  already  been  shown  to  exist  in 
cases  under  the  Insolvent  Debtors  Act. 

A  prisoner  confined  on  mesne  process  may  at  any  time 
during  his  confinement  render  his  schedule,  whereas  if 
confined  on  final  process  the  terms  of  his  bond  compel  him 

a  Act  of  1759,  \  1;  Wall  vs.  Court   of  Wardens,  1   Bay,  434;  Crane  vs.  Martin. 
4  Rich.,  252. 

b  Act  of  1759,  £  2.  c  Act  of  1759,  glO. 


79 

to  render  schedule  within  forty  days  from  the  date  of  his 
bond. 

The  schedule  filed  need  not  contain  an  account  of  the 
applicant's  entire  estate,  it  need  only  contain  sufficient  to 
satisfy  the  sum  really  due  on  the  action  on  which  he  may 
be  confined,  and  whether  it  is  sufficient  is  a  matter  in  the 
first  instance  for  the  determination  of  the  Judge  or  Com- 
missioner of  special  bail,  who  may  in  his  discretion  allow 
the  schedule  to  be  amended.a 

The  property  included  in  the  schedule  should  be  visible 
property,  if  the  prisoner  is  possessed  of  any  such,  if  not, 
then  of  choses  in  action.b 

No  petition  is  necessary  under  the  Prison  Bounds  Art. 
but  the  schedule  is  filed  under  oath  with  the  Clerk  of  the 
Court,  "who  within  ten  days  after  the  receipt  thereof"0 
shall  give  "public  notice,  that  the  prisoner  will  be  liberated, 
and  the  property  assigned,  unless  satisfactory  cause  is  shown 
to  the  contrary,"  before  the  Judge  or  Commissioner  of  special 
bail.d  The  notice  must  also  be  given  for  ten  days,6  and  is 
usually  by  advertisement  in  some  gazette  of  the  vicinity, 
but  where  there  was  a  written  notice  served  on  the  plaintiff, 
who  appeared  by  his  attorney,  it  was  held  that  the  public 
notice  was  waived  ;f  so  too,  exceptions  filed  by  the  plaintiff 
to  the  defendant's  schedule  constitute  a  waiver  of  the  want 
of  legal  notice.*5 

On  the  day  specified  in  the  notice  the  plaintiff  and  the 
prisoner  appear  before  the  Judge  or  Commissioner  of  special 
bail,  and  if  no  satisfactory  cause  is  shown  against  the 
prisoner's  discharge,  the  Judge  or  Commissioner  shall 
order  an  assignment  of  the  effects  in  the  schedule  "to  be 
made  to  the  plaintiff,11  and  by  the  Act  of  1840,  (11  Stat-, 

a  Parravicene  vs.  Sehwach,  Harper,  22-t :   Craig  vs.  Pinson,  2  Spear,  179. 

h  $  5,  Act  of  1788. 

c  Muldrow  vs.  Bacot,  2  McM.,  363. 

a  g  4,  Act  of  1788. 

e  Thornton  &  Hodges  vs.  Ferguson,  2  Bail..  198. 

•  Mulligan  vs.    Prince;  Rice  Digest. — Insolvent  Debtor,  No.  42. 

s  Rice  vs.  Seins,  3  Hill,  5. 

h  I  4,  Act'of  1788. 


80 

121,)  if  the  prisoner  has  been  arrested  on  final  process,  and 
refuses  to  make  an  assignment  for  the  space  of  ten  days 
after  the  order  to  that  effect,  he  may  be  "  committed  to 
close  confinement"  until  he  does,  why  the  same  provision 
does  not  extend  to  prisoner's  applying  for  the  act  on  mesne 
process  does  not  appear.  The  prisoner,  however,  is  not 
entitled  to  his  discharge,  until  the  property  contained  in 
the  schedule  is  delivered  up  to  the  assignee,  if  it  be,  or  has 
been  in  the  power  of  the  prisoner  to  deliver  up  the  same  at 
any  time  since  his  arrest.* 

If  the  plaintiff  shows  cause  against  the  prisoner's  dis- 
charge, or  desires  further  time  for  information,  the  Judge 
or  Commissioner  of  special  bail  before  whom  the  applica- 
tion is  heard,  has  the  power  to  remand  him,  and  appoint 
another  day  for  his  appearance.  If  the  prisoner  is  accused 
by  the  plaintiff  of  fraud,  or  of  having  given  an  undue 
preference  to  one  creditor,  to  the  prejudice  of  the  plaintiff, 
or  of  having  gone  without  the  prison  rules,  it  shall  be 
lawful  for  the  Judge  or  Commissioner  of  special  bail  to 
empanel  a  jury  to  try  the  issue.b  Prior  to  the  Act  of  1833, 
it  was  considered  that  there  was  a  distinction  as  to  the 
power  of  the  Commissioner,  on  mesne  and  on  final  process ; 
that  in  cases  arising  on  the  former,  he  could,  under  the 
fourth  section  of  the  Act  of  1783,  himself  pass  upon  the 
sufficiency  and  fairness  of  the  schedule,  but  that  in  cases 
on  final  process  he  must,  under  the  seventh  section  of  the 
same  Act,  empanel  a  jury  to  try  the  issue.  (See  McClure 
vs.  Vernon,  2  Hill,  433.)  This  distinction  is  obviated  by 
the  Act  of  1833 ;  and  now,  as  soon  as  the  prisoner  is 
accused  of  fraud,  it  is  the  imperative  duty  of  the  Commis- 
sioner to  empanel  a  jury.0  The  seventh  section  of  the  Act 
of  1788  applies  equally  to  the  Insolvent  Debtors  and  the 
Prison  Bounds  Acts,  and  as  what  constitutes  a  fraudulent 
preference  has  already  been  shown,d  a  reference  to  those 

«■  I  6,  Act  of  1833  ;  6  Stat,,  493. 

b  I  7,  Act  of  17S8;  g  1,  Act  of  1833  ;   6  Stat.,  491. 

0  Arrants  vs.  Dimlap,  Cheves.,  28,  and  see  Blease  vs.  Farrow,  9  Rich,  46. 

11  See  ante  page  67. 


81 

cases  is  sufficient.  The  mode  of  making  up  the  issue  by 
suggestions,  and  the  rules  governing  the  trial  of  the  issue 
are  also  the  same. 

If  there  is  no  cause  shown  against  the  prisoner's  discharge, 
or  the  cause  shown  is  tried  and  proved  insufficient,  the 
Judge  or  Commissioner  grants  to  the  prisoner  an  order  of 
discharge.  The  verdict  in  favor  of  the  prisoner  is  not  ipso 
facto  a  discharge  —  the  order  of  the  Commissioner  or  Judge 
before  whom  the  application  is  made  is  necessary  to  give  it 
effect.a 

Strictly  speaking,  there  is  no  appeal  from  the  decision  of 
the  Commissioner;  if  he  errs  in  matters  of  law,  the  error 
is  to  be  corrected  by  certiorari,  although  the  same  error 
committed  under  like  circumstances  by  a  Judge,  could  be 
corrected  by  the  simpler  process  of  appeal.1' 

If  the  Commissioner's  order  is  sought  to  be  corrected  by 
certiorari,  pending  the  appeal,  the  prisoner,  if  appellant,  must, 
remain  within  the  prison  bounds;0  if,  however,  the  order  is 
in  his  favor,  and  the  creditor  appeals,  the  prisoner  is,  it 
seems,  entitled  to  go  at  large  until  the  order  is  reversed.4 

The  only  right  of  appeal  given  is  from  the  verdict  of  the 
jury  on  the  issues  submitted  to  them  under  the  Act  of  1833. 
If  that  is  in  favor  of  the  prisoner  and  the  creditor  appeals, 
the  prisoner  is  entitled  to  go  at  large  pending  the  appeal,  on 
giving  bond  with  sureties  to  the  plaintiff  to  be  forthcoming 
and  to  abide  by  the  decision  of  the  Court  of  Appeals.6  If 
the  appeal  is  decided  against  the  debtor,  then  in  order  to 
protect  his  sureties  on  the  bond,  he  must,  in  accordance  with 
the  Act,  be  surrendered  or  appear  before  the  first  day  of  the 
Circuit  Court  next  succeeding  the  determination  of  the 
appeal.  The  surrender  is  the  act  of  the  sureties,  and  is  to 
the  Sheriff;  the  appearance  is  the  act  of  the  debtor,  and 


:l  Ilnvlev  vs.  Neilson,  1  Rich..  4 SI',. 

''  Graham  vs.  Beckner,  Rice,  17:  Caldwell  &   Co.  vs.  Metze,  2  Spear,  !V> :  Martin 
&  Walker  vs.  Striding,    [bid,  67. 
0  Hall  vs.  Taggart,  Dudley.  370. 
d  See  the  case  of  Bulwinkle  vs.  Grube,  5  Rich.,  295. 
"  Act  of  is:;:;,  g  i,  r,  Stat,  492. 
6 


82 

should  be  made  to  the  tribunal  which  has  cognizance  of  the 
case.  The  sitting  of  the  Circuit  Court  is  regarded  as 
merely  fixing  the  period  within  which  the  surrender  or 
appearance  must  be  made.a 

If  the  verdict  of  the  jury  is  against  the  prisoner  and  he 
appeals,  he  must  continue  to  occupy  the  position  in  which 
he  was  in  at  the  time  of  the  trial.1' 

The  effect  of  a  discharge  under  the  Prison  Bounds  Act  is 
to  release  the  debtor  from  confinement.  If  the  property 
assigned  in  the  schedule  is  sufficient  to  satisfy  the  sum  due 
on  the  actions  on  which  he  is  confined,  it  is  of  course  satis- 
faction, and  the  debt  destroyed.  If,  however,  it  is  not  suffi- 
cient, any  property  that  the  prisoner  may  afterwards  acquire 
is  liable  to  satisfy  the  demand,0  but  the  debtor  cannot  be 
again  arrested  on  the  same  cause  of  action.6  The  clause  of 
the  Act  rendering  liable,  after  acquired,  property,  shows  the 
existence  of  another  distinction  between  cases  arising  on 
mesne  and  cases  arising  on  final  process.  Where  the  pris- 
oner has  been  arrested  on  final  process,  there  is,  of  course, 
a  judgment,  and  after  acquired  property  may  be  reached 
either  by ji.  fa.  or  by  sci.fa.  on  the  judgment;0  but  where 
the  prisoner  has  been  arrested  on  mesne  process,  by  what 
means  is  the  after  acquired  property  to  be  reached,  and  for 
what  amount  is  it  liable  ? 

This  closes  our  review  of  the  provisions  of  the  two  Acts. 
The  leading  distinctions  between  them  are — ■ 

1st.  In  the  different  tribunals  before  which  they  are  res- 
pectively tried.  Cases  under  the  Insolvent  Debtors  Act 
being  cognizable  only  by  a  Judge  and  in  open  Court,  whilst 
under  the  Prison  Bounds  Act,  they  may  be  tried  by  a  Judge 
or  Commissioner  of  special  bail. 

2d.  In  the  summary  nature  of  the  proceedings,  only  ten 
days'  notice  being  required  under  the  Prison  Bounds  Act. 


3  Ibid,    State  vs.  Farrow,  9  Rich.,  446. 

*>  Hall  vs.  Taggart,  Dudley,  370  ;  State  vs.  Farrow.  9  Rich..  446. 

c  I  5,  Act  of  1788. 

d  Akin  vs.  Moore,  1  Hill,  435. 

e  Akin  vs.  Moore,  1  Hill,  435. 


83 

3d.  In  the  limited  effect  of  the  discharge  under  the 
Prison  Bounds  Act,  operating,  as  it  does,  simply  as  a  dis- 
charge from  the  suit  under  which  the  debt  is  confined,  and 
without  preventing  other  creditors  from  immediately  arrest- 
ing the  debtor  and  enforcing  their  claims. 

4th.  A  petition  is  necessary  under  the  Insolvent  Debtors 
Act,  but  not  under  the  Prison  Bounds  Act. 

5th.  The  schedule  must,  under  the  Insolvent  Debtors 
Act,  contain  all  the  debtor's  estate,  whilst  under  the  Prison 
Bounds  Act,  it  need  only  contain  sufficient  to  satisfy  the 
sum  due  on  the  action  on  which  he  may  be  confined. 

6th.  Under  the  Insolvent  Debtors  Act,  the  assignment  is 
to  some  creditor,  but  need  not  necessarily  be  to  the  plaintiff'. 
Under  the  Prison  Bounds  Act,  the  assignment  must  be  to 
the  plaintiff. 

7th.  A  debtor  remaining  in  confinement,  "on  execution" 
above  forty  days  before  making  application,  is  deprived  of 
the  benefit  of  the  Insolvent  Debtors,  but  not  of  the  Prison 
Bounds  Act. 

This  closes  our  sketch  of  these  Acts.  If  they  are  re- 
garded as  constituting  a  system  for  the  relief  of  the  insol- 
vent and  the  protection  of  the  creditor,  they  must  be  con- 
sidered as  eminently  defective.  The  difficulty,  complexity 
and  embarrassment  which  attends  the  creditor  in  prosecu- 
ting his  claims  cannot  be  overrated,  and  operate  to  discour- 
age him  from  the  prosecution  of  his  rights,  and  to  embolden 
the  fraudulent,  by  the  hope  of  escape  through  the  many 
flaws  and  intricacies  which  they  present ;  while,  on  the 
other  hand,  the  power  of  punishment  given  to  the  creditor 
when  he  has  succeeded  in  convicting  the  debtor  of  fraud, 
is  at  variance  with  all  pre-conceived  ideas  of  justice. 

Crimes  against  the  State  have  their  allotted  term  of 
punishment,  but  the  insolvent  being  convicted  of  fraud,  the 
creditor  becomes  his  jailor,  and  may  continue  him  in  prison 
as  long  as  he  has  the  inclination  to  punish,  and  the  means 
wherewith  to  gratify  it.  The  observations  of  Mr.  Burke, 
upon  th&  punishment  of  insolvency  under  the  debtor  law 
of  England,  apply  with  equal  force  to  our  punishment  of 
fraud : 


84 

"  The  next  fault  is,  that  the  inflicting  of  that  punishment 
is  not  on  the  opinion  of  an  equal  and  public  Judge  ;  but  is 
referred  to  the  arbitrary  discretion  of  a  private,  nay  inter- 
ested, and  irritated,  individual.  He,  who  formerly  is. 
and  substantially  ought  to  be,  the  Judge,  is  in  reality 
no  more  than  ministerial,  a  mere  executive  instrument  of  a 
private  man,  who  is  at  once  Judge  and  party.  Every  idea 
of  judicial  order  is  subverted  by  this  precedure.  If  the  insol- 
vency be  no  crime,  why  is  it  punished  with  arbitrary 
imprisonment?  If  it  be  crime,  why  is  it  delivered  into 
private  hands  to  pardon  without  discretion,  or  to  punish 
without  mercy  and  without  measure  ?" 

What  remedy  there  should  be  for  a  system  so  complex, 
so  insufficient  for  the  protection  either  of  creditor  or  debtor, 
and  leading  to  results  so  anomalous,  it  is  the  province  of 
the  Legislature  to  decide.  The  subject  is  of  sufficient 
importance  to  merit  attention,  and  that  it  may  receive  it, 
must  be  the  wish  of  all  who  having  examined  the  present 
system  are  aware  of  its  defects. 


THE  UNITED  STATES  COURTS. 

Before  tracing  the  progress  of  a  suit  in  the  Courts  of  the 
United  States,  the  preliminary  question  occurs:  What  are  the 
suits  which  may  be  prosecuted  in  the  Courts  of  the  United 
States;  for  the  government  of  the  United  States  being  one 
of  limited  powers,  the  judicial  power  can  exist  no  farther 
than  is  granted  by  the  Constitution. 

By  the  third  article  of  the  Constitution,  it  is  provided  that 
''the  judicial  power  shall  extend  to  all  cases  in  law  and 
equity,  arising  under  this  Constitution;  the  laws  of  the 
United  States  and  treaties  made  or  which  shall  be  made 
under  their  authority;  to  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls;  to  all  cases  of  admi- 
ralty and  maritime  jurisdiction;  to  controversies  to  which 


85 

the  United  States  shall  be  a  party;  to  controversies  between 
two  or  more  States,  between  a  State  and  citizens  of  another 
State,  between  citizens  of  different  States,  and  between  a 
State  or  the  citizens  thereof,  and  foreign  States,  citizens  or 
subjects." 

This  section  of  the  Constitution  received  an  elaborate 
exposition  in  the  celebrated  case  of  Chisolm  vs.  The  State 
of  Georgia,*  and  the  Chief  Justice  of  the  United  States 
analyzing  its  provisions,  declared  that  the  judicial  powers  of 
the  United  States  extended  to  ten  descriptions  of  cases.  1st. 
To  all  cases  arising  under  this  Constitution,  because  the 
meaning,  construction  and  operation  of  a  compact  ought 
always  to  be  ascertained  by  all  the  parties,  not  by  authority 
derived  from  only  one  of  them.  2nd.  To  all  cases  arising 
under  the  law  of  the  United  States,  because,  as  such  laws 
constitutionally  made  are  obligatory  on  each  State,  the 
measure  of  obligation  and  obedience  ought  not  to  be 
decided  and  fixed  by  the  party  from  whom  they  arc  due,  but 
by  a  tribunal  deriving  authority  from  both  the  parties.  3rd. 
To  all  cases  arising  under  treaties  made  by  their  authority, 
because,  as  treaties  are  compacts,  made  by  and  obligatory  on 
the  whole  nation,  their  operation  ought  not  to  be  affected  or 
regulated  by  the  local  laws  or  Courts  of  a  part  of  the  nation. 
4th.  To  all  cases  affecting  ambassadors  or  other  public  min- 
isters and  consuls,  because,  as  these  are  officers  of  foreign 
nations,  whom  this  nation  are  bound  to  protect  and  treat 
according  to  the  laws  of  nations,  cases  affecting  them  ought 
only  to  be  cognizable  by  national  authority.  5th.  To  all 
cases  of  admiralty  and  maritime  jurisdiction,  because,  as  the 
seas  are  the  joint  property  of  nations,  whose  right  and  privi- 
leges relative  thereto  are  regulated  by  the  law  of  nations 
and  treaties,  such  cases  necessarily;belong  to  national  juris- 
diction. 6th.  To  controversies  to  which  the  United  States 
shall  be  a  party,  because,  in  cases  in  which  the  whole  people 
are  interested  it  would  not  be  equal  or  wise  to  let  any  one 
State  decide  and  measure  out  the  justice  due  to  others.  7th. 
• — : : . 

»  2  Dallas.  419. 


86 

To  controversies  between  two  or  more  States,  because, 
domestic  tranquility  requires  that  the  contentions  of  States 
should  be  peaceably  terminated  by  a  common  judiciary,  and 
because  in  a  free  country  justice  ought  not  to  depend  on  the 
will  of  either  of  the  litigants.  8th.  To  controversies  between 
a  State  and  the  citizens  of  another  State,  because,  in  case  a 
State,  (that  is  all  the  citizens  of  it,)  has  demands  against 
some  citizens  of  another  State,  it  is  better  that  they  should 
prosecute  their  demands  in  a  national  Court,  than  in  a 
Court  of  the  State  to  which  those  citizens  belong — the 
danger  of  irritation  and  criminations  arising  from  appre- 
hensions and  suspicions  of  partiality  being  thereby  obvi- 
ated ;  because,  in  cases  where  some  citizens  of  one  State  have 
demands  against  all  the  citizens  of  another  State,  the  cause 
of  liberty  and  the  rights  of  men  forbid  that  the  latter  should 
be  the  sole  judges  of  the  justice  due  to  the  latter,  and  true 
republican  government  requires  that  free  and  equal  citizens 
should  have  free,  fair  and  equal  justice.  9th.  To  controver- 
sies between  citizens  of  the  same  State,  claiming  lands 
under  grants  of  different  States,  because  as  the  rights  of  the 
two  States  to  grant  the  land  are  drawn  into  question,  neither 
of  the  two  States  ought  to  decide  the  controversy.  10th. 
To  controversies  between  a  State  or  the  citizens  thereof, 
and  foreign  States,  citizens  or  subjects,  because,  as  every 
nation  is  responsible  for  the  conduct  of  its  citizens  towards 
other  nations,  all  questions  touching  the  justice  due  to  for- 
eign nations  or  people,  ought  to  be  ascertained  by  and 
depend  on  national  authority. 

The  clause  extending  the  judicial  power  of  the  United 
States  to  controversies  "between  citizens  of  different  States," 
seems  to  have  escaped  the  attention  of  the  Chief  Justice. 
Its  object,  probably,  was  as  stated  by  Mr.  Justice  Johnson,8 
to  establish  "  an  harmonious  distribution  of  justice  through- 
out the  Union,  to  confine  the  States  in  the  exercise  of  their 
judicial  sovereignty  to  cases  between  their  own  citizens  :  to 
prevent  in  fact  that  very  power  over  the  rights  of  citizens 

a  Ogden  vs.  Saunders,  11  Wheat.,  359. 


of  other  States  which  the  origin  of  the  contract  might  he 
supposed  to  give  to  each  State,  and  thus  to  obviate  that 
eonflictus  legum,  which,  any  one  who  studies  the  subject  will 
plainly  perceive,  it  is  infinitely  more  easy  to  prevent  than 
to  adjust." 

By  the  eleventh  amendment  to  the  constitution,  adopted 
in  consequence  of  the  decision  in  the  case  of  Chisolm  vs. 
the  State  of  Georgia,  the  judicial  power  of  the  United 
States  over  controversies  "  between  a  State  and  citizens  of 
another  State"  was  limited,  and  it  was  provided  that  the 
judicial  power  should  "not  be  construed  to  extend  to  any 
suit  in  law  or  equity  commenced  or  prosecuted  against  one 
of  the  United  States  by  citizens  of  another  State,,  or  by 
citizens  or  subjects  of  any  foreign  State." 

These  constitute  the  limits  of  the  judicial  power  granted 
to  the  United  States,  and  unless  a  case  can  be  brought 
under  one  or  the  other  of  the  classes  enumerated  above, 
the  United  States  Courts  cannot  entertain  jurisdiction  of  it. 

The  exercise  of  the  judicial  power  of  the  United  States 
within  the  limits  above  prescribed  is  delegated  to  three 
Courts  —  the  Supreme,  the  Circuit,  and  the  District  Courts. 
The  first  of  these  is  established  by  the  constitution,51  while 
the  other  two  are  established  by  act  of  Congress,  passed  in 
pursuance  of  the  eighth  section  of  article  second  of  the 
Constitution,  empowering  Congress  "to  constitute  tribunals 
inferior  to  the  Supreme  Court." 

The  purpose  of  this  sketch  is  to  trace  the  progress 
through  the  Courts  of  the  United  States,  of  a  suit  at  law 
between  individuals,  and  I  shall,  therefore,  pass  unnoticed, 
the  power  of  the  Supreme  Court  as  a  Court  of  original 
jurisdiction,  the  jurisdiction  of  the  District  Court,  which  is 
principally  exercised  upon  causes  of  admiralty  and  mari- 
time nature,  and  that  portion  of  the  jurisdiction  of  the 
Circuit  Court  which  is  exercised  as  an  appellate  Court  in 
admiralty  causes,  and  confine  myself  to  an  examination  of 
the  jurisdiction  ot  the  Circuit  Court  as  a  Court  of  original 
* 

a  Art.  3.  'i  1. 


88 

jurisdiction ;    as  it  is   in  that  Court  that  all  controversies 
between  individuals  must  originate. 

Originally,  the  Circuit  Court  was  composed  of  two  asso- 
ciate Justices  of  the  Supreme  Court  and  the  District  Judge 
—  and  the  associate  Justices  changed  their  circuits  each 
term,  but  subsequently  by  acts  of  Congress,  amending  the 
judicial  system,  the  associate  Justices  were  made  stationary, 
attending  always  the  same  circuit,  and  the  Circuit  Court 
was  composed  of  the  associate  Justice  for  such  circuit  and 
the  District  Judge  —  and  power  was  given  to  the  District 
Judge  to  hold  the  Circuit  Court  in  the  absence  of  the 
associate  Justice.  Nominally  and  in  theory  the  Circuit 
Court  is  composed  of  the  associate  Justice  and  the  District 
Judge,  and  all  the  proceedings  are  addressed  to  the  Judges 
of  the  Circuit  Court,  but  owing  to  the  large  number  of 
appeals,  and  the  length  of  the  session  of  the  Supreme  Court 
at  Washington,  the  associate  Justices  rarely  attend  these 
circuits,  except  for  the  purpose  of  hearing  appeals  from 
the  rulings  of  the  District  Judge  in  admiralty,  ami  in 
causes  in  the  District  Court,  and  practically,  the  Circuit 
Court  is  held  by  the  District  Judge  alone. 

By  the  Act  of  1789, a  establishing  the  Circuit  Courts,  it 
was  enacted  that  "  the  Circuit  Courts  shall  have  original 
cognizance,  concurrent  with  the  Courts  of  the  several 
States,  of  all  suits  of  a  civil  nature  at  common  law  or  in 
equity,  when  the  matter  in  dispute  exceeds,  exclusive  of 
costs,  the  sum  or  value  of  five  hundred  dollars,  aud  the 
United  States  are  plaintiffs  or  petitioners,  or  an  alien  is  a 
party,  or  the  suit  is  between  a  citizen  of  the  State  where 
the  suit  is  brought  and  a  citizen  of  another  State." 

The  jurisdiction  of  the  Circuit  Court  thus  depends  upon 
the  amount  involved,  and  the  character  of  the  parties 
litigant.  Both  must  concur  to  give  the  jurisdiction.  The 
matter  in  dispute  must,  in  the  words  of  the  Act,  "  exceed, 
exclusive  of  costs,  the  sum  or  value  of  live  hundred  dol- 
lars."    It  has  been  frequently  determined  that  the  damages 

■  §  11,  1  U.  S.  Stat,,  78. 


89 

laid  in  the  declaration  give  the  jurisdiction  as  to  the  matter 
in  dispute.1  The  defendant  may,  by  pleading  in  abatement 
to  the  jurisdiction,  contest  the  value  of  the  matter  in  dis- 
pute, but  until  some  judicial  proceedings  have  taken  place, 
showing  upon  the  record  that  the  sum  demanded  in  the 
writ  and  declaration  is  not  the  matter  in  dispute,  that  sum 
will  be  considered  by  the  Court  as  the  matter  in  dispute  in 
an  action  for  damages.1?  The  fact  that  the  judgment  is  for 
less  than  five  hundred  dollars  does  not  affect  the  jurisdic- 
tion; it  only  deprives  the  plaintiff  of  costs,  or  subjects  him 
at  the  discretion  of  the  Court  to  the  payment  of  costs.0 

Where  the  demand  in  the  declaration  is  not  for  money, 
and  the  nature  of  the  action  does  not  require  the  value  of 
the  thing  demanded  to  be  stated  in  the  declaration,  the 
practice  of  the  Court  is  to  allow  the  value  to  be  given  in 
evidence.*1 

The  jurisdiction  depends  not  only  on  the  amount  in 
dispute,  but  also  on  the  character  of  the  parties  litigant,  and 
they  must  be  either — 

1st.  The  United  States  as  plaintiffs  or  petitioners  ;  or, 

2nd.  An  alien  as  a  party ;  or, 

3rd.  The  parties  must  be  citizens  of  different  States. 

So  far  as  regards  the  United  States  as  plaintiffs  or  peti- 
tioners, the  jurisdiction  is  easily  determined. 

As  to  aliens,  the  Act  gives  jurisdiction  to  the  Circuit 
Court  where  "an  alien  is  a  party;"  and  it  has  been  held 
that  the  other  party  to  the  suit  must  be  a  citizen  of  the 
United  States.  That  the  Constitution  did  not  give  to  the 
Court  of  the  United  States  jurisdiction  over  suits  between 
aliens,  but  only  over  suits  between  aliens  and  citizens.6 

Alien  heirs,  though  claiming  through  an  ancestor  who 


a  Muns  vs.  Dupont  de  Nemours,  2  Wash.  C.  C,  463:  Gordon  vs.  Longest,  16 
Peters.  104;  Sherman  vs.  Chirk,  3  McLean,  ill. 

b  Kanouse  vs.  ."Martin.  15  Howard,  208. 

c  Ibid.  10  How.,  208;   111  Peters,  104  :   Green  vs.  Liter.  8  Cranch,  242. 

d  Ex  parte^Bradstreet,  7  Peters,  0)7. 

e  Mossmanvs.  lligginson,  4  Dud.,  12:  Jackson  vs.  Tweutyinan,  2  Pet.,  136;  Mon- 
talet  vs.  Murray.  4  Cranch,  46. 


90 

was  a  citizen  of  the  same  State  as  the  defendant,  may  sue  in 
the  United  States  Court.8,  So,  also,  suits  may  be  main- 
tained in  the  United  States  Courts  between  citizens  of  the 
same  States,  if  the  plaintiffs  are  only  nominal  parties,  and 
sue  for  the  use  of  an  alien, b  for  in  both  these  cases  the 
aliens  are  the  real  parties  in  interest;  and  as  was  said  by 
the  Court  in  the  case  of  Mc^Nutt  vs.  Bland,0  the  Court  looks 
to  things  not  names,  to  the  actors  in  controversies  and  suits, 
not  to  the  mere  forms  or  inactive  instruments  used  in  con- 
ducting them,  by  virtue  of  some  positive  law. 

An  alien  does  not  it  seems  lose  his  right  to  sue  or  be  sued 
in  the  United  States  Courts,  until  he  has  taken  the  oath  of 
citizenship ;  his  declaration  of  intention  under  the  naturali- 
zation laws  does  not  prevent  him  from  being  regarded  as  the 
citizen  of  a  foreign  State,  within  the  meaning  of  the  clause 
of  the  Act  of  1789, d  nor  is  it  material  in  a  suit  between  an 
alien  and  a  citizen,  that  the  alien  is  a  resident  of  the  same 
State  with  the  other  parties  to  the  suit.6 

Jurisdiction  dependent  upon  the  character  of  the  parties 
litigant,  arises  in  the  third  place  where  the  suit  is  between 
a  citizen  of  the  State  where  the  suit  is  brought,  and  a  citi- 
zen of  another  State. 

The  citizenship  intended  by  the  Constitution,  and  the 
Acts  of  Congress  in  reference  to  the  jurisdiction  of  the 
Courts  of  the  United  States,  is  nothing  more  nor  less  than 
residence  or  domicile  in  a  particular  State,  the  person  claim- 
ing to  be  a  citizen  of  such  State,  being  at  the  same  time  a 
citizen  of  the  United  States/ 

Executors  and  administrators  citizens  of  a  State,  can  sue 
debtors  to  the  estate  residing  in  the  same  State  in  which 
their  testator  or  intestate  formerly  lived,g  for  executors  and 

»  Weems  vs.  George,  13  Howard,  190. 
b  Brown  vs.  Strode,  5  Cr.,  303. 
c  2  Howard,  14. 

d  Baird  vs.  Byre,  3  Wallace.  Jr. 
e  Breedlove  vs.  Nicolet,  7  Pet.,  428. 

fRead   vs.  Bertrand,  4  Wash.    C.  C.   516:   Prentiss   vs.   Barton.    1   Brock.,  389: 
Shelton  vs.  Tiffin,  6  Howard,  163. 
s  Clarke  vs.  Mathewson.12  Peters,  171 ;  Childress  vs.  Emory,  8  Wheaton,  668. 


91 

administrators  are  not  mere  nominal  parties  in  interest. 
the  personal  property  of  the  decedent  being  vested  in  them; 
but  they  cannot  sue  debtors  residing  in  the  same  State  with 
themselves,  notwithstanding  that  their  testator  or  intestate 
was  a  citizen  of  another  State,  for  as  the  executors  and 
administrators  are  the  real  parties  in  interest,  the  suit  would 
in  such  case  be  between  citizens  of  the  same  State. a 

Where  there  are  two  or  more  joint  plaintiffs,  or  two  or 
more  joint  defendants,  each  of  the  persons  concerned  in 
interest  must  be  competent  to  sue,  or  liable  to  be  sued  in 
the  Courts  of  the  United  States,  in  order  to  give  jurisdic- 
tion ;''  but  formal  parties  or  nominal  parties  united  with  the 
real  parties  in  interest,  will  not  oust  the  United  States 
Courts  of  jurisdiction  if  the  citizenship  or  character  of  the 
real  parties  be  such  as  to  confer  jurisdiction  within  the  11th 
section  of  the  Act  of  1789.  So,  too,  where  the  citizenship  of 
the  parties  gives  jurisdiction,  and  the  legal  right  to  sue  is  in 
the  plaintiff,  the  Court  will  not  inquire  into  the  residence  of 
those  who  may  have  an  equitable  interest  in  the  claim.0  . 

With  reference  to  corporations,  the  rule  originally  was 
that  a  corporation  could  not  sue  or  be  sued  in  the  Courts  of 
the  United  States  if  any  of  the  members  of  the  corporation 
were  citizens  of  the  same  State  with  the  adverse  parties  liti- 
gant;11 but  since  the  decision  of  the  Supreme  Court  in  the 
case  of  the  Louisville  Railroad  Company  vs.  Letson,6  it 
has  been  uniformly  held  that  for  all  purposes  of  litigation 
in  the  Courts  of  the  United  States,  a  corporation  created  by 
a  State  is  to  be  deemed  to  all  intents  and  purposes  a  person 
and  to  be  regarded  as  a  citizen  of  that  State,  as  much  as  a 
natural  person,  and  therefore  all  investigation  or  enquiry 
into  the  citizenship  of  its  component  parts  is  immaterial/ 


a  Dodge  vs.  Perkins,  4  Mason,  436. 

''  Strawbridge  vs.  Curtis,  3  Cr.,  267. 

c  Bouafee  vs.  Williams,  3  How.,  574 ;  Irvine  vs.  Lowry,  14  Peters,  298. 

d  Bank  vs.  Willis,  3  Sumner,  472;  Wilson  vs.  City  Bank,  3  Sumner,  423  :  Breit- 
liaupt  vs.  Bank  of  Georgia,  I  Peters,  238:  Devereux  vs.  Bank  of  United  States,  5 
Cranch,  57. 

e  2  Howard,  497.  f  Ibid,  2  Howard,  55S. 


92 

So,  too,  although  the  Circuit  Courts  of  the  United  States 
cannot  entertain  jurisdiction  of  a  cause  where  a  State  is  a 
party  to  the  record  ;  yet  where  a  State  becomes  a  member  of 
a  corporation,  the  Circuit  Courts  can  entertain  jurisdiction  of 
the  cause,  notwithstanding  that  the  State  is  a  party  in  inter- 
est and  affected  by  the  result,  for  the  State  in  becoming  a 
corporator  or  a  partner  in  a  trading  company  does  not  com- 
municate to  the  corporation  or  company  its'  sovereign  privi- 
leges or  character,  but  on  the  contrary  abdicates  its  sover- 
eignty and  becomes  pro  hoc  vice  a  private  citizen. a 

Where  one  of  the  parties  to  a  suit,  'pendente  lite  removes  to 
and  becomes  a  citizen  of  the  same  State  with  the  other 
party,  the  jurisdiction  having  once  attached  is  not  ousted  by 
the  removal,b  but  the  party  is  allowed  to  go  on  and  com- 
plete his  proceeding.  So,  too,  when  from  the  amount 
involved  and  the  character  of  the  parties,  the  jurisdiction 
has  once  attached,  it  cannot  be  divested  by  any  subsequent 
events.  Thus,  where  suit  was  brought  by  a  plaintiff,  a 
citizen  of  one  State,  against  a  citizen  of  another  State,  and 
pending  the  suit  the  plaintiff  died,  his  executors,  although 
citizens  of  the  same  State  with  the  defendant,  were  allowed 
to  continue  the  cause.  It  was  conceded  that  they  could  not 
have  instituted  the  suit,  but  being  instituted  they  could 
maintain  it.0 

This  was  in  accordance  not  only  with  general  principles, 
but  was  also  by  virtue  of  the  31  §  of  the  Act  of  1789, 
which  provides  that  where,  in  any  suit  pending  in  the 
Courts  of  the  United  States,  either  of  the  parties  shall  die 
before  final  judgment,  the  executor  or  administrator  of 
such  deceased  party  who  was  plaintiff,  petitioner  or  defend- 
ant, in  case  the  cause  of  action  doth  by  law  survive,  shall 
have  full  power  to  prosecute  or  defend  any  such  suit  or 
action  until  final  judgment.  The  continuance  of  the  cause 
to  the  next  term  is   granted  to  the  executors,  and  other 


*  Bank  of  the  United  States  vs.  Planters  Bank  of  Georgia,  9  Wheat.,  907. 
11  Morgan  vs.  Morgan,  2  Wheat.,  290  :  Mollan  vs.  Torrance,  9  Wheat,,  537. 
c  Clark  vs.  Mathewson,  12  Peters,  171. 


93 

auxiliary  provisions  are  made  by  the  same  section  to  carry 
the  enactment  into  effect. 

The  Judiciary  Act  above  cited,  (1789,)  not  only  gives  to 
aliens  and  the  citizens  of  different  States  the  right  to  sue 
and  be  sued  originally  in  the  Courts  of  the  United  States, 
but  it  provides  by  the  12th  section,  that  "  if  a  suit  be 
commenced  in  any  State  Court  against  any  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 
exeeeds  the  aforesaid  sum  or  value  of  five  hundred  dollars, 
exclusive  of  costs,  to  be  made  to  appear  to  the  satisfaction 
of  the  Court,  and  the  defendant  shall  at  the  time  of  enter- 
ing his  appearance  in  such  State  Court,  file  a  petition  for 
the  removal  of  the  cause  for  trial  into  the  next  Circuit 
Court  to  be  held  in  the  district  where  the  suit  is  pending, 
and  offer  good  and  sufficient  surety  for  his  entering  in  such 
Court  on  the  first  day  of  its  session,  copies  of  said  process 
against  him  ;  and,  also,  for  his  there  appearing  and  entering 
special  bail  in  the  cause,  if  special  bail  was  originally 
requisite  therein,  it  shall  then  be  the  duty  of  the  State 
Court  to  accept  the  surety  and  proceed  no  further  in  the 
cause,  and  any  bail  that  may  have  been  originally  taken 
shall  be  discharged,  and  the  said  copies  being  entered  as 
aforesaid  in  such  Court  of  the  United  States,  the  cause  shall 
there  proceed  in  the  same  manner  as  if  it  had  been  brought 
there  by  original  process.  And  any  attachment  of  the 
goods  or  estate  of  the  defendant  by  the  original  process 
shall  hold  the  goods  or  estate  so  attached  to  answer  the 
final  judgment  in  the  same  manner  as  by  the  laws  of  such 
State  they  would  have  been  holden  to  answer  final  judg- 
ment, had  it  been  rendered  by  the  Court  in  which  the  suit 
commenced.  And  if  in  any  action  commenced  in  a  State 
Court,  the  title  of  land  be  concerned,  and  the  parties  are 
citizens  of  the  same  State,  and  the  matter  in  dispute  exceeds 
.the  sum  or  value  of  five  hundred  dollars,  exclusive  of  costs, 
the  sum  or  value  being  made  to  appear  to  the  satisfaction 
of  the  Court,  either  party  before  the  trial  shall  state  to  the 
Court  and  make  affidavit  if  they  require  it,  that  he  claims 


94 

and  shall  rely  upon  a  right  or  title  to  the  land  under  a 
grant  from  a  State  other  than  that  in  which  the  suit  is 
pending,  and  produce  the  original  grant  or  an  exemplifica- 
tion of  it,  except  where  the  loss  of  public  records  shall  put 
it  out  of  his  power,  and  shall  move  that  the  adverse  party 
inform  the  Court  whether  he  claims  a  right  or  title  to  the 
land  under  a  grant  from  the  State  in  which  the  suit  is  pend- 
ing ;  the  said  adverse  (party)  shall  give  such  information, 
or  otherwise  not  be  allowed  to  plead  such  grant  or  give  it 
in  evidence  upon  the  trial,  and  if  he  informs  that  he  does 
claim  under  such  grant,  the  party  claiming  under  the  grant 
first  mentioned,  may  then,  on  motion  remove  the  cause  for 
trial  to  the  next  Circuit  Court  to  he  holden  in  such  district ; 
hut,  if  he  is  the  defendant,  shall  do  it  under  the  same  regu- 
lations as  in  the  before-mentioned  case  of  the  removal  of 
a  cause  into  such  Court  by  an  alien,  and  neither  party 
removing  the  cause  shall  be  allowed  to  plead  or  give  evi- 
dence of  any  other  title  than  that  by  him  stated  as  aforesaid, 
as  the  ground  of  his  claim." 

This  section  of  the  Act,  it  will  be  perceived,  designates 
three  distinct  classes  of  cases  in  which  the  right  of  removal 
from  a  State  to  an  United  States  Court  may  be  exercised  ; 
provided  the  amount  in  dispute  exceeds  the  sum  of  five 
hundred  dollars,  viz  : 

1st.  Suits  by  a  citizen  against  an  alien. 

2nd.  Suits  by  a  citizen  of  the  State  where  the  suit  is 
brought  against  a  citizen  of  another  State. 

3d.  Suits  between  citizens  of  the  same  State,  concerning 
the  title  of  land  in  which  the  party  petitioning  for  removal 
claims  under  a  grant  from  a  State  other  than  that  in  which 
the  suit  is  pending. 

In  the  first  two  classes  of  cases  the  right  of  removal  is 
limited  to  the  defendant.  In  the  third  class  the  right  of 
removal  may  be  exercised  by  either  party. 

When  the  right  to  remove  exists,  the  application  for 
removal  must  be  made  by  filing  the  petition  for  removal  at 
the  time  of  entering  appearance  in  the  State  Court,  accom- 
panied with  an  offer  of  good  and  sufficient  security  that 


95 

the  defendant  will,  on  the  first  day  of  the  ensuing  session 
of  the  United  States  Circuit  Court,  enter  in  said  Court 
copies  of  the  process  against  him,  and  that  he  will  appear 
therein,  and  (if  bail  had  been  originally  demanded)  that  he 
will  enter  special  bail. 

The  petition  must  be  filed  in  the  State  Court,  having 
cognizance  of  the  cause,  and  must  recite  the  existence  of 
the  action,  and  state  the  ground  upon  which  the  right  of 
removal  is  claimed,  and  it  must  be  the  petition  of  all  the 
defendants,  otherwise  the  United  States  Court  will  not 
entertain  jurisdiction  of  the  cause." 

The  petition  being  filed  in  the  State  Court,  and  the  offer 
of  security  approved,  the  order  is  entered  in  the  State 
Court  that  the  security  be  accepted,  that  the  cause  be 
removed  to  the  Circuit  Court  of  the  United  States  in  and 

for  the  district  of ,  and  (if  bail  has  been  put  in)  that 

the  bail  be  discharged.  Such  order  being  entered,  all 
further  proceedings  in  the  State  Court  are  suspended  as 
coram  non  judice,h  and  at  the  term  of  the  Circuit  Court  to 
which  the  cause  is  removed,  a  certified  copy  of  the  order 
made  in  the  State  Court  is  presented  to  the  Court,  and  an 
order  taken  that  the  cause  be  entered  therein,  and  the  case 
then  proceeds  as  if  originally  commenced  in  the  United 
States  Court. 

Having  shown  the  class  of  cases  over  which  the  United 
States  Circuit  Courts  exercise  original  jurisdiction,  it  is 
proper  now  to  regard  the  limitations  which  are  placed  upon 
the  exercise  of  the  jurisdiction.  It  is  provided  by  the 
eleventh  section  of  the  Judiciary  Act,  that  no  person  shall 
be  arrested  in  one  district  for  trial  in  another,  and  that  no 
suit  shall  be  brought  "  against  an  inhabitant  of  the  United 
States  by  any  original  process  in  any  other  district  than 
that  whereof  he  is  an  inhabitant,  or  in  which  he  shall  be 
found  at  the  time  of  sending  the  writ."  By  this  clause,  it 
will  be  perceived  that  suits  in  the  United  States  Court  must 
be  commenced  by  service  of  the  writ  on  the  defendant,  and 

a  Smith  vs.  Rhines.  2  Sum.,  339.  b  Gordon  vs.  Longest,  16  Pet.;  97. 


96 

that  the  defendant  cannot  be  made  a  party  in  Court  by  the 
process  of  foreign  attachment.* 

But  when  the  suit  has  been  commenced  in  the  State 
Court  by  foreign  attachment,  and  the  defendant  appears 
and  removes  the  case  into  the  United  States  Court,  in  the 
maimer  prescribed  by  twelfth  section  of  the  Judiciary  Act, 
no  objection  can  be  taken  to  the  mode  of  commencing  the 
suit,  or  to  the  fact  that  defendant  was  not  found  in  the 
district  at  the  time  of  serving  the  writ,  for  by  appearance 
the  defendant  waives  the  objection,  and  places  himself 
precisely  in  the  position  he  would  have  been  in  had  pro- 
cess been  served  upon  him,b  and  by  the  words  of  the  Act, 
"  Any  attachment  of  the  goods  or  estate  of  the  defendant 
by  the  original  process,  shall  hold  the  goods  or  estate  so 
attached  to  answer  the  final  judgment,  had  it  been  rendered 
by  the  Court  in  which  the  suit  was  commenced."0 

The  eleventh  section  of  the  Judiciary  Act  contains,  also, 
another  limitation  upon  the  jurisdiction  of  the  Court,  in 
the  provision  that,  "  no  District  or  Circuit  Court  shall  have 
cognizance  of  any  suit  to  recover  the  contents  of  any 
promissory  note  or  other  chose  in  action  in  favor  of  an 
assignee,  unless,  a  suit  might  have  been  prosecuted  in  such 
Court  to  recover  the  said  contents  if  no  assignment  had 
been  made,  except  in  cases  of  foreign  bills  of  exchange." 

The  statute,  it  will  be  perceived,  refers  to  the  assignee, 
and  it  has,  in  the  construction  given  to  it  by  the  Courts, 
been  limited  to  an  assignee  in  the  strict  technical  sense  of 
the  word;  therefore,  when  the  note  is  payable  to  "bearer," 
the  transfer  is  by  delivery,  not  by  assignment,  and  the 
bearer  is  not  in  the  sense  of  the  Act  an  assignee,  and  may 
maintain  suit  upon  it  in  the  Circuit  Courts/ 

The   object  of  the  statute  seems   to  be  to  deny  to  the 


»  Toland  vs.  Sprague,   12   Pet..  327  ;   Piequet  vs.   Swan,   5   Mason,  35;  Hollinge- 
worth  vs.  Adams,  2  Dall  .  •')'.''(!. 
»  Pollard  vs.  Dwight,  I  Cr.,  121. 
°  12  Sec,  1789  j  1  U.  S.  Stat.,  78. 
<>  Bell  vs.  Bullard,  1  Mason,  251;  Bonnafee  vs.  Williams,  3  How.,  574. 


97 

assignee  any  greater  right  by  virtue  of  the  assignment  than 
his  assignor  had. 

Thus,  where  the  payee  and  maker  of  a  promissory  note 
are  citizens  of  the  same  State,  the  payee  cannot  sue  the 
maker  in  the  United  States  Courts,  and  as  the  payee  cannot, 
no  subsequent  endorsee  or  assignee  can.  So,  too,  an  endor- 
see cannot  sue  the  first  or  other  remote  endorser  in  the 
United  States  Courts,  unless  the  intermediate  endorsers, 
through  whom  he  deduces  his  title,  could  sue  in  the  United 
States  Courts ;a  but  where  the  citizenship  and  the  amount 
warrant  it,  the  assignee  or  endorsee  can  sue  his  immediate 
assignor  or  endorser  in  the  United  States  Court,  irrespec- 
tive of  the  citizenship  of  the  other  parties  to  the  paper,  for 
as  between  them  it  is  a  new  contract,  the  parties  to  which 
are  citizens  of  different  States.1' 

The  rule  then  is,  that  to  entitle  an  assignee  to  bring  an 
action  in  the  United  States  Court  on  a  promissory  note  or 
chose  in  action,  he  must  not  only  be  entitled  to  sue  by  virtue 
of  the  citizenship  of  himself  and  the  defendant,  but  he  must 
also  show  that  those  through  whom  he  claims  were  entitled 
to  sue  by  virtue  of  their  citizenship.  It  is  immaterial  that 
the  parties  through  whom  he  claims  could  not  have  originally 
sued  in  the  United  States  Com't.  It  is  sufficient. if  at  the 
time  of  assignment  they  possessed  the  right  to  sue  upon  the 
paper  in  the  United  States  Courts;  thus  when  the  payee  and 
maker  were  citizens  of  the  same  State,  and  subsequently  the 
payee  removed  to  another  State  and  then  endorsed  the  paper 
over,  the  endorsee  was  held  to  be  entitled  to  sue  the  maker 
in  the  United  States  Courts." 

Having  shown  the  jurisdiction  of  the  Circuit  Court,  it  is 
proper  to  add  a  few  words  as  to  the  proper  mode  of  stating 
the  jurisdiction. 

The  Circuit  Courts,  as  has  been  already  stated,  were  cre- 
ated by  Congress  under  that  clause  of  the  Constitution 
empowering  them  to    constitute  tribunals  inferior  to  the 


Mollan  vs.  Torrence,  '.I  When!.,  537.  ''  Young  vs.  Bryan,  6  Wheat..  146. 

c  Kirkman  vs.  Hamilton,  0  Pet.,  22. 


98 

Supreme  Court;  but  though  the  Circuit  Court  is  an  inferior 
Court,  in  the  language  of  the  Constitution,  it  is  not  so  in 
the  language  of  the  common  law;  nor  are  its  proceedings 
subject  to  the  scrutiny  of  those  narrow  rules  which  the 
caution  or  jealousy  of  the  Courts  at  Westminster  long 
applied  to  Courts  of  that  denomination,  but  are  entitled  to 
as  liberal  intendments  or  presumptions  in  favor  of  their 
regularity,  as  those  of  any  Supreme  Court.  A  Circuit 
Court  although  not  an  inferior  Court,  is,  however  of  limited 
jurisdiction,  and  has  cognizance  not  of  eases  generally,  but 
only  of  a  few  specially  circumstanced,  amounting  to  a  small 
proportion  of  the  cases  which  an  unlimited  jurisdiction 
would  embrace.  And  the  fair  presumption  is,  (not  as  with 
regard  to  a  Court  of  general  jurisdiction,  that  a  cause  is 
within  its  jurisdiction,  unless  the  contrary  appears,  but 
rather,)  that  a  cause  is  without  its  jurisdiction  till  the  con- 
trary appears.  This  renders  it  necessary,  inasmuch  as  the 
proceedings  of  no  Court  can  be  deemed  valid  further  than 
its  jurisdiction  appears,  or  can  be  presumed,  to  set  forth 
upon  the  record  of  a  Circuit  Court  the  facts  or  circum- 
stances which  give  jurisdiction  either  expressly  or  in  such 
manner  as  to  render  them  certain  by  legal  intendment. 
Among  those  circumstances  it  is  necessary  where  the 
defendant  appears  to  be  a  citizen  of  one  State,  to  show  that 
the  plaintiff  is  a  citizen  of  some  other  State,  or  an  alien ;  or 
if  the  suit  be  upon  a  promissory  note,  by  an  assignee,  to 
show  that  the  original  promisee  is  so,  for  by  a  special  pro- 
vision of  the  statute,  it  is  Ins  description  as  well  as  that  of  the 
assignee,  which  effectuates  jurisdiction. a 

It  must  therefore  appear  upon  the  record  that  the  amount 
involved  and  the  character  of  the  parties  litigant,  support  the 
jurisdiction. b  If  citizens,  it  must  be  stated  on  the  record 
that  they  are  citizens,  and  of  what  States  they  are  citizens, 
and  it  is  not  sufficient  to  style  them  inhabitants  or  residents.0 

a  Turner  vs.  Bank  of  North  America,  4  Dall.,  10. 
b  Montalet  vs.  Murray,  4  Cr.,  46. 

c  Bingham  vs.  Cabot,  3  Dallas,  382 ;  Abererombie  vs.  Dressius,  1  Cr.,  343 ;  Brown 
vs.  Keeue,  8  Peters,  112. 


99 

If  aliens,  not  only  must  the  fact  of  alienage  be  averred  upon 
the  record,  but  it  must  also  be  stated  of  what  foreign  State 
the  alien  is  a  subject.4  If  the  suit  is  by  or  against  a  corpo- 
ration, it  must  be  averred  on  the  record  that  the  party  is  a 
corporation,  and  was  created  a  corporation  by  the  law  of 
some  State.b 

It  is  not,  however,  necessary  in  any  case  to  state  on  the 
record,  in  addition  to  the  fact  of  citizenship  or  alienage,  that 
the  defendant  is  an  inhabitant  of  the  district,  or  that  he  was 
found  therein  at  the  time  of  serving  the  process.0  The 
objection,  if  it  exists,  may  be  taken  advantage  of  by  notice 
to  set  aside  the  process,  or  by  plea  in  abatement. 

But  even  where  the  pleadings  fail  to  show  the  jurisdic- 
tion of  the  Court,  the  judgment  rendered  in  the  cause  is  not 
a  nullity.  It  is  of  course  erroneous,  and  may  be  reversed  by 
writ  of  error  or  on  appeal,  but  until  reversed,  it  is  binding  on 
all  the  world/  and  even  where  the  record  clearly  fails  to  show 
jurisdiction,  the  defendant  may  by  his  laches  lose  the  right 
to  except  to  it,  and  to  reverse  the  judgment.  In  the  case  of 
Skillern's  Executors  vs.  May's  Executors,6  the  case  had  been 
carried  to  the  Supreme  Court  by  writ  of  error,  and  re- 
manded back  to  the  Circuit  Court;  and  upon  again  coming 
before  the  Circuit  Court,  it  was  discovered  that  the  plead- 
ings failed  to  show  jurisdiction.  The  Supreme  Court,  how- 
ever, ruled  that  it  was  then  too  late  to  except  to  the  juris- 
diction. 

It  has  already  been  seen  that  when  the  jurisdiction  de- 
pends on  the  citizenship  of  the  parties,  that  citizenship 
must  be  averred,  and  originally  it  was  held  that  the  aver- 
ment must  be  proved  on  the  general  issue,  and  as  a  conse- 
quence of  this  view,  if  at  any  stage  of  a  cause  it  appeared 
that  the  plaintiff's  averment  of  citizenship  was  not  true,  he 


a  Wilson  vs.  The  City  Bank,  3  Sumner,  422. 

"  Marshall  vs.  Baltimore  &  Ohio  R.  II.  Co.,  10   How.,  314:   Philadelphia  &   Balti- 
more R.  R.  Co.  vs.  Quigley,  21  How.,  207. 
c  Graeic  vs.  Palmer,  8  Wheat.,  699. 

d  Ex  parte,  Watkins,  3  Pet.,  207  ;   MxCormk-k  vs.  Sullivant,  10  Wheat.,  199. 
e  6  Cranch,  207. 


100 

failed  in  his  suit,  but  it  is  now  held  and  lias  been  held  for 
many  years,  that  if  the  defendant  disputes  the  allegations  of 
citizenship,  he  must  plead  the  fact  in  abatement  and  plead  in 
the  order  of  the  common  law  ;a  and,  indeed,  all  matters  which 
go  to  defeat  the  jurisdiction  of  the  Court  over  the  particular 
cause  must  be  pleaded  in  abatement,  otherwise  the  plea  of 
the  general  issue  will  operate  as  a  waiver  of  the  plea  to 
the  jurisdiction. ''  This  must  be  understood,  however,  as 
applying  only  to  cases  where  the  record  shows  jurisdiction, 
for  it  is  evident  that  on  the  question  of  jurisdiction  two 
classes  of  cases  may  arise. 

1st.  Where  the  record  fails  to  show  jurisdiction,  there 
being  no  averment  or  an  insufficient  averment. 

2d.  Where  the  record  shows  jurisdiction  but  the  facts  of 
the  case  do  not  sustain  the  averment. 

In  the  first  class  of  cases  the  objection  to  the  jurisdiction 
may  be  taken  at  an}'  stage  of  the  cause  prior  to  a  decision 
on  the  case  in  the  Supreme  Court,  and  it  may  be  taken 
without  any  formal  plea,  for  if  the  attention  of  the  Court  is 
directed  to  the  record  and  the  record  fails  to  show  jurisdic- 
tion of  the  cause  in  the  Court,  the  proceedings  are  coram  non 
judice  and  the  case  must  be  dismissed. 

In  the  second  class  of  cases  the  record  shows  jurisdiction, 
but  the  objection  is  to  the  truth  of  the  averment  and  must 
therefore  be  taken  by  plea,  and  the  plea  must  show  that  the 
objection  or  defect  of  jurisdiction  existed  at  the  time  the 
action  was  brought  and  not  merely  at  the  time  of  plea 
[•leaded,  for  as  has  been  already  seen,  if  the  jurisdiction 
existed  at  the  time  of  action  brought  it  is  not  divested  by 
subsequent  occurrences.0 

Having  shown  the  class  of  cases  over  which  the  Circuit 
Courts  of  the  United  States  exercise  jurisdiction,  it  is  prop- 
er now  to  advert  to  the  law  by  which  the  judgment  of  the 
Court  is  regulated  in  deciding  the  cases  submitted  to  it, 

The  34th  section  of  the  Act  of  1789,  provides  that  the 


Jones  vs.  League,  IS  How.,  SI.         b  11)1.1 :  Gracie  vs.  Palmer,  8  Wheat.,  699. 
c  Mollaw  vs.  Torrance,  9  Wheat.,  537. 


101 

laws  of  the  several  States,  except  where  the  Constitution, 
treaties  or  statutes  of  the  United  States  shall  otherwise 
require  or  provide,  shall  be  regarded  as  rides  of  decision  in 
trials  at  common  law  in  the  Courts  of  the  United  States  in 
cases  where  they  apply. 

This  section  of  the  Judiciary  contemplates  the  adminis- 
tration of  the  local  laws  of  the  State,  through  the  instru- 
mentality of  the  United  States  Courts,  and  the  parties  liti- 
gant in  submitting  a  cause  to  the  decision  of  the  United 
States  Court,  change  the  tribunal,  but  not  the  law  by  which 
the  cause  is  to  be  decided. 

It  is  a  generally  recognized  principle  that  the  Judicial 
department  of  every  government  is  the  appropriate  organ 
for  construing  the  legislative  Acts  of  that  government,  and 
on  this  principle  the  construction  given  by  the  United 
States  Court  to  the  Constitution  and  laws  of  the  United 
States,  is  received  by  all  as  the  true  construction,  and  the 
construction  given  by  the  Courts  of  the  several  States  to  the 
legislative  Acts  of  those  States,  is  received  as  true,  unless 
they  come  in  conflict  with  the  Constitution,  laws  or  treaties 
of  the  United  States,a  but  this  principle  is  limited  in  its 
application  to  State  laws  strictly  local,  that  is  to  say  to  the 
positive  statutes  of  the  State,  and  the  construction  given 
to  those  Statutes,  by  the  State  tribunals,  and  to  rights  and 
titles  to  things  having  a  permanent  locality,  such  as  the 
rights  and  titles  to  real  estates  and  other  matters  immovable. 
and  intra  territorial  in  their  nature  and  character.1' 

Not  only  do  the  United  States  Courts  conform  themselves 
to  State  decisions  on  the  construction  of  statutes,  holding 
that  the  tixed  construction  of  the  statute,  makes  in  fact  a 
[•art  of  the  statute  law  of  the  State,0  but  they  also  conform 
themselves  to  the  State  decisions  on  the  common  law  when 
they  are  tixed  rules  of  property/1 


•-1  Sec  Ellmendorf  vs.  Taylor,  10  Wheat.,  160. 
b  Swift  vs.  Ty<on,  1(5  Pet..  18. 

0  Shelly  vs.   Guy,   11    Wheat.,  367  j   McKeen   vs.   DeLancy.  5  Crunch..  22  :   Polk's 
Lessee  vs.  Wmdal,  9  Cranch.,  98. 
d  Jackson  vs.  Chew.  12  Wheat.,  167. 


102 

The  close  adherence  of  the  Courts  of  the  United  States  to 
this  principle  of  adopting  the  local  laws  of  the  State  when 
they  are  rules  of  property,  and  the  importance  which  they 
attach  to  it,  are  strikingly  manifested  in  the  case  of  Green 
vs.  Lessee  of  !N"eal.a  The  United  States  Courts,  it  is  well 
known,  adopt  the  Acts  of  limitations  of  the  several  States, 
and  give  to  them  the  same  effect  as  is  given  in  the  State 
Courts. b  A  case  involving  the  construction  of  the  statute 
of  limitations  of  the  State  of  Tennessee  was  before  the 
Supreme  Court  of  the  United  States,  and  was  decided  in 
conformity  to  the  decision  of  the  State.  Some  years  after 
the  decision  of  the  Supreme  Court,  the  State  Court  of  Ten- 
nessee in  an  elaborate  opinion  reviewed  and  reversed  their 
prior  decisions,  and  settled  a  different  construction  of  the 
Act  of  limitations.  In  this  position  of  the  law  the  case  of 
Green  vs.  Lessee  of  Neal  came  up  to  the  Supreme  Court  of 
the  United  States,  and  the  question  was  whether  the 
Supreme  Court  should  adhere  to  its  own  decision  or  yield 
to  that  of  the  judicial  tribunals  of  Tennessee.  The  question 
was  novel  and  of  grave  importance  and  after  a  review  of  the 
cases,  and  a  careful  consideration  of  the  principle  which 
had  governed  the  action  of  the  Court,  it  reversed  its  own 
decision  and  adopted  that  of  the  State  Court.  "  A  refusal 
to  do,  says  the  Court,  would  in  effect  establish  two  rules  of 
property  in  the  State." 

This  principle  applies,  not  only  to  the  rules  of  property, 
but  to  the  rules  of  evidence;  and  the  statutes,  and  deci- 
sions of  the  State  on  the  admission  or  rejection  of  evidence 
furnish  the  rule  of  decision  for  the  United  States  Courts 
in  civil  cases.0 

But  the  thirty-fourth  section  of  the  Judiciary  Act,  adopt- 
ing the  laws  of  the  several  States  as  rules  of  decision  for 
the  Courts  of  the  United  States  in  those  States,  does  not 
apply  to  questions  of  a  more  general  nature  not  dependent 
upon  local  statutes  or  local  usages  of  a  fixed  and  permanent 


6  Pet,  298.  b  McLuny  vs.  SilKman,  3  Pet,,  277. 

c  McNeill  vs.  Holbrook,  12  Pet.,  89. 


103 

operation,    as  for   example,   the    construction    of  ordinary 

contracts  or  other  written  instruments,  and,  especially,  to 
questions  of  general  commercial  law,  the  true  interpretation 
and  effect  of  which  are  to  be  sought,  not  in  the  decisions 
of  the  local  tribunals,  but  in  the  general  principles  and 
doctrines  of  commercial  jurisprudence.* 

It  has  been  seen  that  the  Courts  of  the  United  States,  to 
a  oreat  extent,  administer  the  law  according  to  the  statutes 
and  decisions  of  the  respective  States  within  which  they 
exercise  jurisdiction.  The  code  of  practice  in  the  Courts 
of  the  United  States  is  in  like  manner  closely  assimilated 
to  the  practice  of  the  State  Courts.  This  was  accomplished 
at  the  institution  of  the  United  States  Courts  by  the  adop- 
tion of  the  State  practice  as  a  rule  of  proceeding. 

It  is  evident,  however,  that  State  laws  cannot  proprio 
vigore  control  the  exercise  of  the  powers  of  the  national 
government,  or  in  any  manner  limit  or  affect  the  operation 
of  the  process  or  proceedings  in  the  national  Courts. b  They 
can  be  obligatory  only  so  far  as  they  have  been  directly  or 
indirectly  adopted  by  Congress,  and  Congress,  mindful  of 
the  changes  that  might  occur  in  the  practice  of  the  State 
Courts,  has  carefully  provided  the  means  of  enabling  the 
Courts  of  the  United  States  to  conform  to  any  change  in 
the  State  Courts,  and  thus  preserve  the  uniformity  of 
practice  in  the  respective  Courts.0 

The  fourteenth  section  of  the  Judiciary  Act  of  1789d 
empowers  the  Circuit  Court  to  issue  writs  of  scire  facias, 
habeas  corpus,  and  all  other  writs  not  specially  provided  for 
by  statute,  which  may  be  necessary  for  the  exercise  of  their 
resj iective  jurisdictions,  and  agreeable  to  the  usages  of  law. 

The  Process  Act  of  1789e  *    expressly  adopted  the  forms 

a  Swift  vs.  Tyson.  16  Pet.,  IS  :  Watson  vs.  Tarpley.  18  How.,  520. 

b  See  opinion  of  Johnson,  J.,  in  Ogden  vs.  Saunders,  12  Wheat.,  213  :  Waynian 
vs.  Southard,  10  Wheat,,  1;  Bank  vs.  Halstead,  10  Wheat..  01. 

0  Beers  fs.  Houghton,  9  Peters,  359.         d  1  U.  S.  Stat.,  81.         e  1  U.  S.  Stat.,  92. 

*It  enacted,  "That  the  forms  of  writs  and  executions,  except  their  style  and 
modes  of  process  in  the  Circuit  Courts  in  suits  at  common  law,  shall  be  the  same  in 
each  State  respectively  as  are  now  used  or  allowed  in  the  Supreme  Courts  of  the 
ame." 


104 

of  writs  and  modes  of  process  of  the  State  Courts  in  suit* 
at  common  law.  This  Act  was  by  its  terms  to  continue 
in  force  only  until  the  end  of  the  next  session  of  Congress. 

The  Process  Act  of  1792a  prescribed,  section  first,  that  all 
writs  and  processes  issuing-  from  a  Circuit  Court  should 
bear  test  of  the  Chief  Justice  of  the  Supreme  Court,  or  (if 
that  office  shall  be  vacant)  of  the  associate  Justice  next  in 
precedence. 

The  second  section  of  the  Act  permanently  continued 
the  "  forms  of  writs,  executions,  and  other  processes,  and 
the  forms  and  modes  of  proceeding"  then  in  use  by  virtue 
of  the  Process  Act  of  1789,  but,  with  this  important 
difference,  that  they  were  "subject  to  such  alterations  and 
additions  as  the  said  Courts  respectively  shall,  in  their 
discretion,  deem  expedient,  or  to  such  regulations  as  the 
Supreme  Court  of  the  United  States  shall  think  proper 
from  time  to  time  by  rule,  to  prescribe  to  any  Circuit  Court 
concerning  the  same." 

The  Judiciary  Act  of  1793,  section  seven1'  empowers 
the  Circuit  Courts  to  make  rules  and  orders  "directing 
the  returning  of  writs  and  processes,  the  filing  of  decla- 
rations and  other  pleadings,  the  taking  of  rules,  the 
entering  and  making  up  judgments  by  default,  and  other 
matters  in  the  vacation  and  otherwise,  in  a  manner 
not  repugnant  to  the  laws  of  the  United  States,  to  regulate 
the  practice  of  the  said  Courts  respectively,  as  shall  be  lit 
and  necessary  for  the  advancement  of  justice,  and  especially 
to  that  end  to  prevent  delays  in  proceedings." 

There  was  thus  the  direct  adoption  by  Congress  of  the 
forms  of  writs  and  modes  of  proceeding  of  force  in  the 
respective  States  in  1789,  and  at  the  same  time  a  vesting 
in  the  Circuit  Court  a  power  to  alter  and  mould  the  process 
of  the  Courts  for  the  future.  The  explanation  of  this  legis- 
lation is  to  be  found  in  the  difficulties  which  were  inherent 
in  the  subject  itself,  and  the  wisdom  of  the  legislation  has 
been  vindicated  by  Chief  Justice  Marshall  in  the  case  of 

a  1  U.  S.  Stat.,  275.  »  1  U.  S.  Stat.,  335. 


105 

Way  ma  n  vs.  Southard,  10  Wheat.,  47,  "a  judicial  system,*' 
says  the   Chief  Justice,    "was  to  be   prepared,  not  for  a 
consolidated  people,  but  for  distinct  societies,  already  pos- 
sessing distinct  systems,   and  accustomed  to  laws,   which, 
though  originating  in  the  same  great  principles  had  been 
variously  modified.     The  perplexity  arising  from  this  state 
of  things  was  much  augmented  by  the  circumstance  that, 
in   many  of  the  States,   the  pressure  of  the   moment  had 
produced    deviations    from    that    course    of   administering 
justice  between  debtor  and  creditor,  which  consisted,  not 
only  with  the  spirit  of  the  constitution,  and  consequently 
with  the   views  of  the  government,  but  also,   with  what 
might  safely  be  considered  as  the  permanent  policy,  as  well 
as  interest,  of  the  States  themselves.     The  new  government 
could  neither  entirely  disregard  these   circumstances,   nor 
consider  them  as  permanent.     In  adopting  the  temporary 
mode  of  proceeding  with  executions  then  prevailing  in  the 
several  States,  it  was  proper  to  provide  for  that  return  to 
ancient  usage,  and  just,  as  well   as  wise  principles,   which 
might  be  expected  from  those  who  had  yielded  to  a  sup- 
posed necessity  in  departing  from  them.    Congress  probably 
conceived  that  this  object  would  be  best  effected  by  placing 
in    the   Courts  of  the    Union    the  power  of   altering  the 
"modes  of  proceeding  in  suits  at  common  law,"    which 
includes  the  modes  of  proceeding  in  the  execution  of  their 
judgments,  in  the  confidence  that  in  the  exercise   of  this 
power  the  ancient,  permanent  and  approved  system  would 
be  adopted  by  the  Courts,  at  least,  as  soon  as  it  should  be 
restored  in  the  several  States,  by  their  respective  Legisla- 
tures. Congress  could  not  have  intended  to  give  permanence 
to  temporary  laws,  of  which  it  disapproved,  and,  therefore, 
provided  for  their  change  in  the  very  Act  which  adopted 
them." 

By  the  Act  of  1828a  (1  Sec),  the  provisions  of  the  Process 
Act  of  1789  and  1792  were  extended  to  those  States  admit- 
ted into  the  Union  since  the  twenty-ninth  day  of  September, 
1789,  and  the  third  section  of  the  Act  (of  1828),  applying 
. • _ 

M  U.  S.  Stat..  278. 


106 

equally  to  the  original  thirteen  States,  and  to  those  sub- 
sequently admitted  into  the  Union,  provided,  that  "writs 
of  execution  and  other  final  process  issued  on  judgment 
and  decrees  rendered  in  any  of  the  Courts  of  the  United 
States,  and  the  proceedings  thereupon  shall  be  the  same, 
except  their  style,  in  each  State  respectively,  as  are  now 
used  in  the  Courts  of  each  State ;  "provided,  however,  that  it 
shall  be  in  the  power  of  the  Courts,  if  they  see  fit  in  their 
discretion,  by  rules  of  Court,  so  far  to  alter  final  process  in 
said  Courts,  as  to  conform  the  same  to  any  change  which 
may  he  adopted  by  the  Legislatures  of  the  respective  States 
for  the  State  Courts. 

And  by  the  Act  of  1842,  the  provision  of  the  Act  of 
1828  were  made  applicable  to  such  States  as  have  been 
admitted  into  the  Union  since  the  nineteenth  of  May,  1828. 
These  several  sections  embrace  all  that  has  been  enacted  by 
Congress  relative  to  the  issuing  executions  and  mode  of 
proceeding  upon  process,  mesne  and  final. 

In  order,  therefore,  to  determine  a  question  of  practice, 
we  are  to  ascertain :  1st,  Whether  Congress  or  the  Supreme 
Court  of  the  United  States  has  prescribed  any  rule  upon 
the  subject.  2d,  If  not,  whether  the  United  States  Court, 
in  which  the  question  arises,  has  laid  down  a  rule  upon  it. 
If  not,  then,  3d,  We  are  to  inquire  into  the  practice  of  the 
Supreme  Court  of  the  State  in  which  the  Circuit  Court 
sits.  And,  lastly,  If  none  of  the  above  sources  of  informa- 
tion furnish  the  rule,  resort  must  be  had  to  the  practice  of 
the  Courts  at  Westminster. 

In  applying  the  third  test,  however,  it  is  not  the  practice 
of  the  State  Courts  at  the  time  the  question  arises  which 
furnishes  the  rule ;  but  the  practice  which  existed  in  the 
State  Courts  at  certain  periods  fixed  by  statutes  of  the 
United  States.  Thus,  if  the  question  arises  on  mesne  process, 
or  the  forms  and  modes  of  proceedings,  and  it  is  in  one  of 
the  original  thirteen  States,  the  practice  in  force  in  the 
State  Courts  in  1789,  furnishes  the  rule  of  decision. 

If  it  is  in  a  State  admitted  into  the  Union  prior  to  1828, 
the  practice  of  the  State  on  the  nineteenth  day  of  May, 
1828,  furnishes  the  rule.     If  in  a  State  admitted  after  1828, 


107 

and  prior  to  1842,  the  practice  of  the  State  on  the  first  day 
of  August,  1842,  furnishes  the  rule. 

If  the  question  arises  on  final  process  or  the  proceedings 
thereon,  and  in  one  of  the  original  thirteen  States  or  in  a 
State  admitted  into  the  Union  prior  to  1828,  the  practice  of 
the  State  Court  on  the  19th  day  of  May,  1828,  furnishes 
the  rule. 

If  it  arises  in  a  State  admitted  since  1828,  the  practice  of 
the  State  on  the  1st  day  of  August,  1842,  furnishes  the  rule. 

The  constitutional  validity  and  extent  of  the  power  thus 
given  to  the  Courts  of  the  United  States,  to  alter  the  pro- 
cess of  the  Court  and  modes  of  proceedings  has  heen  fre- 
quently considered  and  has  been  uniformly  sustained  by  the 
Supreme  Court  of  the  United  States.  It  has  been  further 
held*  that  the  power  to  alter  and  add  to  the  process  and 
modes  of  proceeding  in  a  suit  embraced  the  whole  progress 
of  such  a  suit,  and  every  transaction  in  it,  from  its  com- 
mencement to  its  termination,  and  until  the  judgment 
should  be  satisfied,  and  that  it  authorized  the  Courts  to 
prescribe  and  regulate  the  conduct  of  the  ofiicer  in  the  exe- 
cution of  final  process  in  giving  effect  to  its  judgment ;  and 
it  was  emphatically  laid  down  that  "  a  general  superintend- 
ance  over  this  subject  seems  to  be  properly  within  the 
judicial  province,  and  has  always  been  so  considered;  and 
that  "this  provision  enables  the  Courts  of  the  Union  to 
make  such  improvements  in  its  forms  and  modes  of  pro- 
ceeding as  experience  may  suggest,  and  especially  to  adopt 
such  State  laws  on  this  subject  as  might  vary  to  advantage 
the  forms  and  modes  of  proceeding  which  prevailed  in 
September,  1789. "b  The  result  of  this  doctrine  as  practically 
expounded  and  applied  in  the  case  of  the  Bank  of  the  Uni- 
ted States  vs.  Halstead,0  is  that  the  Courts  "  may,  by  their 
rules,  not  only  alter  the  forms,  but  the  effect  and  operation 
of  the  process,  whether  mesne  or  final,  and  the  modes  of 
proceeding  under  it,  so  that  it  may  reach  property  not  liable 
in  1789  by  the  State  laws  to  be  taken  in  execution,  or  may 

a  Beers  vs.  Haughton,  9  Pet,  360.  b  Wayman  vs.  Southard,  10  Wheat.,  -12. 

c  10  Wheat..  51. 


108 

exempt  property  which  was  not  then  exempted,  but  has 
been  exempted  by  subsequent  State  laws."*  These  deci- 
sions of  the  Supreme    Court  in  the  eases  of  Wayman  vs. 

Southard,  and  Bank  vs.  Ilalstead,  were  in  1825,  and  in  1828 
the  Act  was  passed  by  Congress  conforming  executions  and 
other  final  process,  and  the  proceedings  thereupon  in  the 
Courts  of  the  United  States,  to  the  practice  in  the  State 
Courts,  but  the  principle  of  these  cases  remains  of  force. 
The  only  effect  of  the  Act  of  1828,  so  far  as  regards  execu- 
tions and  the  proceedings  thereupon,  has  been  to  change 
the  point  of  departure  and  to  make  the  State  law  of  force  in 
1828  the  rule  in  the  place  of  that  which  was  in  force  in  1789. 

Exercising  the  power  thus  given,  rules  were,  at  an  early 
period,  prescribed  by  the  Circuit  Court  for  this  District. 
These  rules  are  contained  in  Miller's  Compilation.  They 
modify  the  practice  of  our  State  Courts  in  but  few  particu- 
lars, and  are  so  clear  and  precise,  that  little  or  no  difficulty 
can  be  experienced  in  construing  or  applying  them,  and  I 
shall  therefore  only  notice  such  of  them  as  concern  the 
ordinary  institution  and  progress  of  a  suit. 

Rules  are  held  in  the  Clerk's  office  on  the  first  Monday  in 
every  month.  The  writ  (a  form  of  which  is  found  in  the 
Appendix,)  is  tested  in  the  name  of  the  Chief  Justice  of  the 
United  States,  and  of  some  day  in  the  preceding  term  of 
the  Circuit  Court.  In  this  respect  it  differs  from  the  writ 
in  the  State  Court,  which  is  tested  in  the  name  of  the  Clerk 
and  of  the  day  it  issues. 

The  writ  may  he  made  returnable  to  the  next  term  of  the 
Court,  or  to  the  rules,  on  the  first  Monday  of  the  month 
next  ensuing  its  lodgment  with  the  Marshal ;  the  latter  is 
the  course  generally  adopted,  as  the  plaintiff"  can  thereby 
ordinarily  have  the  pleadings  made  up  and  the  case  ready 
for  trial  at  the  next  term. 

If  the  Marshal  is  unable  to  serve  the  writ,  and  return  it 
to  the  Clerk's  office  at  the  rules  next  ensuing  its  lodgment 
with  him,  he  returns  it  to  the  next  succeeding  rule  day,  and 
to  accomplish  this  no  order  of  Court  or  alteration  in  the 
writ  is  necessary. 

a  Beers  vs.  II;ui-;hton,  0  Pet.,  360. 


109 

As  soon  as  the  writ  is  returned  executed,  the  declaration 
may  be  immediately  filed.  The  practice  is  to  have  the  dec- 
laration prepared,  and  to  file  it  with  the  Clerk  on  the  rule 
day  to  which  the  writ  is  returnable,  provided  the  writ  has 
hern  duly  returned  executed.  Where  the  declaration  is  filed 
on  a  rule  day,  no  rule  to  plead  is  necessary,  hut  it  some- 
times occurs  that  to  postpone  the  filing  of  the  declaration  to 
the  rule  day,  would  prevent  the  case  being  ready  for  hearing 
at  the  next  term,  in  such  eases  it  is  proper  not  to  wait  until 
the  rule  day,  hut  as  soon  as  the  'writ  is  returned  to  tile  the 
declaration,  and  serve  the  rule  to  plead  on  the  defendant  or 
his  attorney.  The  form  of  the  rule  is  the  same  as  in  the 
State  Courts. 

There  is  in  the  United  States  Court  for  this  District  no 
imparlance  term.  The  time  within  which  a  defendant  must 
plead  to  the  declaration  is  prescribed  by  the  6th  Rule  of 
Court. a  If  defendant  fails  to  plead  within  the  time  allowed 
by  the  rule,  the  plaintiff  may  enter  up  at  the  rules  before 
the  Clerk  an  order  for  judgment  by  default;  but  the  judg- 
ment thus  obtained  may  be  set  aside  at  the  next  rules  on 
motion  before  the  Clerk.1'  If  not  then  set  aside,  the  case  is 
docketed  on  the  enquiry  docket;  but  it  is  still  competent 
for  the  defendant  within  the  first  two  days  of  the  next  term 
on  special  cause  shown,  to  move  to  set  aside  the  judgment 
by  default  and  for  leave  to  plead.6 

Where  the  action  is  on  a  bill  of  exchange  or  promissory 
note  and  the  plea  is  non  est  factum  or  non  assumpsit,  the 
defendant  should  file  with  his  plea  an  affidavit  of  the  truth  of 
it,  otherwise  the  execution  of  the  note  or  bill  is  admitted, 
and  plaintiff  need  not  prove  it.d  The  55th,  56th,  57th,  58th 
and  60th  Rules  also  contain  important  regulations  relative 
to  pleas,  but  as  these  rules  are  to  be  found  in  Miller's  Com- 
pilation, they  need  not  be  repeated  here. 

The  pleadings  being  made  up  and  the  cause  docketed,  the 
next  matter  that  requires  attention  is  the  production  of  the 
evidence.  The  witnesses  may  be  summoned  to  attend  by 
subpoena,  issuing  in  like  manner  as  from  the  State  Courts, 
1 

a  Miller,  69.  »  Rule  7.  «  Rule  7.  d  Rut?  59. 


110 

and  the  subpoena  runs  throughout    the    district   and   into  _ 

other  districts,  but  in  civil  causes,  witnesses  -vrifrtHipnw  nv 
out  of  the  district  in  which  the  Court  is  holden  who  live  at  a  I 
greater  distance  than  one  hundred  miles  from  the  place  of 
holding  the  Court,a  cannot  be  compelled  to  attend  in  obedi- 
ence to  the  subpoena. 

"When  the  attendance  of  a  witness  cannot  be  obtained  by 
a  subpeena,  his  testimony  may  be  taken  by  deposition  de 
bene  esse  or  by  a  dedimus  potestatem  or  commission,  the  power 
to  issue  which  is  given  to  the  Courts  by  the  30th  section 
of  the  Act  of  1789,b  which  provides  that  "when  the  testi- 
mony of  any  person  shall  be  necessary  in  any  civil  cause 
depending  in  any  district  in  any  Court  of  the  United  States, 
who  shall  live  at  a  greater  distance  from  the  place  of 
trial  than  one  hundred  miles,  or  is  bound  on  a  voyage  to 
sea,  or  is  about  to  go  out  of  the  United  States,  or  out  of 
such  district,  and  to  a  greater  distance  from  the  place  of 
trial  than  as  aforesaid  before  the  time  of  trial,  or  is  ancient 
or  very  infirm,  the  deposition  of  every  such  person  may  be 
taken  de  bene  esse  before  any  Justice  or  Judge  of  any  of  the 
Courts  of  the  United  States,  or  before  any  Chancellor, 
Justice  or  Judge  of  Supreme  or  Superior  Court,  Mayor  or 
Chief  Magistrate  of  a  city,  or  Judge  of  any  County  Court 
or  Court  of  Common  Pleas  of  any  of  the  United  States,  not 
being  of  counsel  or  attorney  to  either  of  the  parties,  or  inter- 
ested in  the  event  of  the  cause,  provided  that  a  notification 
^  from  the  Magistrate  before  whom  the  deposition  is  to  be 
taken  to  the  adverse  party  to  be  present  at  the  taking  of  the 
same,  and  to  put  interrogatories,  if  he  thinks  fit,  be  first 
made  out  and  served  on  the  adverse  party  or  his  attorney, 
as  either  may  be  nearest,  if  either  is  within  one  hundred 
miles  of  the  place  of  caption,  allowing  time  for  their  attend- 
ance after  notified,  not  less  than  at  the  rate  of  one  day, 
Sudays  exclusive,  for  every  twenty  miles'  travel.  And  every 
person  deposing  as  aforesaid,  shall  be  carefully  examined 
and  cautioned,  and  sworn  or  affirmed  to  testify  the  whole 


a  Act  of  1793,  6  §,  1  Stat.,  335. 


Ill 

truth,  and  shall  subscribe  the  testimony  by  him  or  her  given 
after  the  same  shall  be  reduced  to  -writing,  which  shall  be 
done  only  by  the  Magistrate  taking  the  deposition,  or  by 
the  deponent  in  his  presence.  And  the  depositions  so  taken 
shall  be  retained  by  such  Magistrate  until  he  deliver  the 
same  with  his  own  hand  into  the  Court  for  which  they  are 
taken,  or  shall  together  with  a  certificate  of  the  reasons  as 
aforesaid  of  their  being  taken,  and  of  the  notice,  if  any 
given  to  the  adverse  party,  be  by  him,  the  said  Magistrate, 
sealed  up  and  directed  to  such  Court,  and  remain  under  his 
seal  until  opened  in  Court.  And  any  person  may  be  com- 
pelled to  appear  and  depose  as  aforesaid,  in  the  same 
manner  as  if  to  appear  and  testify  in  Court."  It  is  also  by 
this  section  further  provided  that  evidence  thus  taken  may 
be  used  on  the  trial  of  any  cause,  if  "it  shall  appear  to  the 
satisfaction  of  the  Court  that  the  witnesses  are  then  dead, 
or  gone  out  of  the  United  States,  or  to  a  greater  distance 
than  as  aforesaid,  from  the  place  where  the  Court  is  sitting, 
or  that  by  reason  of  age,  sickness,  bodily  infirmity,  or  im- 
prisonment, they  are  unable  to  travel  and  appear  at  Court, 
but  not  otherwise." 

This  mode  of  taking  the  testimony  of  a  witness  being 
ex  parte,  and  in  derogation  of  the  rules  of  the  common 
law,  has  been  condemned  by  the  Supreme  Court,  as  liable 
to  great  abuse,  "except  in  cases  of  mere  formal  proof  (such 
as  the  signature  or  execution  of  an  instrument  of  writing), 
or  of  some  isolated  fact  (such  as  demand  of  a  bill  or  notice 
to  an  endorser),  and  is  now  but  rarely  used,  a  dedimus  po- 
testatem,  or  commission,  being  the  mode  usually  adopted.* 

The  practice  in  issuing  commissions  from  the  Circuit 
Court  of  the  United  States  is  regulated  by  the  fifty-fourth 
Rule  of  Court.15  Care  should  be  taken  in  framing  the  com- 
mission, for  it  is  a  special  authority  delegated  by  the  Court 
to  the  Commissioners,  and  must  be  strictly  pursued.0 

Ordinarily,  a  summons  from  the  commissioners  is  suffi- 

a  Walsh  V3.  Rogers,  13  How.,  287.  b  Miller's  Compilation. 

0  Armstrong  vs.  Brown,  1  Wash.  C.  C,  43. 


112 

cient  to  secure  the  attendance  of  the  witness,  but  should 
the  witness  prove  refractory,  the  means  of  compelling  his 

attendance  before  the  commissioners  are  given  in  the  first 
section  of  the  Act  of  1827, a  which  provides  that,  "when- 
ever a  commission   shall   be  issued   by  any  Court  of   the 
United    States    for   taking  the  testimony  of   a  witness  or 
witnesses   at   any  place    within   the   United  States,   or  the 
territories  thereof,  it  shall  be  lawful  for  the  Clerk  of  any 
Court   of  the   United   States,  for  the  district  or   territory 
within  which  such  place  may  be,  and  he  is  hereby  enjoined 
and  required,  upon  the  application  of  either  of  the  parties 
in   the    suit,   cause,   action    or    proceeding,  in  which   such 
commission    shall    have    been    issued,    his,    her,    or    their 
agent  or  agents,  to  issue  a  subpoena  or  subpoenas,  for  such 
witness    or    Avitnesses,    residing    or   being  within   the   said 
district  or  territory,  as  shall  be  named  in  the  said  commis- 
sion, commanding  such  witness  or  witnesses  to  appear  and 
testify  before  the  commissioner  or  commissioners  in  such 
commission   named,  at  a   time  and  place  in   the  subpoena 
to  be   stated,  and  if  any   witness,   after  being  duly  served 
with  such  subpoena,  shall  refuse  or  neglect  to  appear,  or, 
after  appearing,  shall  refuse  to  testify,  (not  being  privileged 
from  giving  testimony),  such  refusal  or  neglect  being  proved 
to  the  satisfaction  of  any  Judge  of  the  Court,  whose  Clerk 
shall    have    issued    such   subpoena    or  subpoenas,    he    may 
thereupon   proceed   to  enforce    obedience    to  the    process, 
or  to  punish  the  disobedience  in  like  manner  as  any  Court 
of  the    United    States  may  do  in   case  of  disobedience  to 
process  of  subpozna  ad  testificandum  issued  by  such  Court, 
and  the  witness,  or  witnesses,  in  such  case  shall  lie  allowed 
the  same  compensation  as  is  allowed  to  witnesses  attending 
the  Courts  of  the  United  States ;  Provided,  That  no  witness 
shall  be  recpiired  to  attend  at  any  place  out  of  the  county 
in  which  he  may  reside,  nor  more  than  forty  miles  from 
his  place  of  residence,   to  give  his    deposition    under  this 
law." 

»  4  Slat.,  1117. 


113 

When  it  is  desirable  that  the  witness  should  produce 
books  or  papers  before  the  commissioners,  the  means  of 
compelling  the  attendance  of  the  witness  and  the  produc- 
tion of  the  books  and  papers  are  given  by  the  second 
section  of  the  Act  of  1827,  which  provides,  that,  "when 
ever  either  of  the  parties  in  such  suit,  cause,  action,  or 
proceeding,  shall  apply  to  an}7  Judge  of  a  Court  of  the 
United  States,  in  the  district  or  territory  of  the  United 
States,  in  which  the  place  for  taking  such  testimony  may 
be  for  a  subpoena  duces  tecum,  commanding  the  witness 
therein  to  be  named,  to  appear  and  testify  before  the  said 
commissioner  or  commissioners,  at  the  time  and  place  in 
the  said  subpoena  to  be  stated,  and  also  to  bring  and  carry 
with  him  or  her,  and  produce  to  such  commissioner  or 
commissioners,  any  paper,  writing,  or  written  instrument, 
or  book,  or  other  document,  supposed  to  be  in  the  posses- 
sion or  power  of  such  witness,  such  Judge  being  satisfied 
by  the  affidavit  of  the  person  applying  or  otherwise,  that 
there  is  reason  to  believe  that  such  paper,  writing,  written 
instrument,  book,  or  other  document,  is  in  the  possession 
or  power  of  the  witness,  and  that  the  same,  if  produced, 
would  be  competent  and  material  evidence  for  the  party 
applying  therefore,  may  order  the  Clerk  of  the  Court,  of 
which  he  is  a  Judge,  to  issue  such  subpoena  duces  tecum 
accordingly,  and  if  such  witness,  after  being  duly  served 
with  such  subpoena  duces  tecum,  shall  fail  to  produce  any  such 
paper,  writing,  written  instrument,  book,  or  other  docu- 
ment, being  in  the  possession  or  power  of  such  witness, 
and  described  in  such  subpoena  duces  tecum,  before  and  to 
such  commissioner  or  commissioners,  at  the  time  and  place 
in  such  subpoena  stated,  such  failure  being  proved  to  the 
satisfaction  of  the  said  Judge,  he  may  proceed  to  enforce 
obedience  to  the  said  process  of  subpoena  duces  tecum,  or  to 
punish  the  disobedience,  in  like  manner  as  any  Court  of  the 
United  States  may  do  in  case  of  disobedience  to  a  like  pro- 
cess, issued  by  such  Court,  and  when  any  such  paper,  writing, 
written  instrument,  book,  or  other  document  shall  be  pro- 
duced to  such  commissioner  or  commissioners,  he  or  they 
8 


114 

shall,  at  the  cost  of  the  party  requiring  the  same,  cause  to 
be  made  a  fair  and  correct  copy  thereof,  or  of  so  much 
thereof  as  shall  he  required  by  either  of  the  parties: 

"  Provided,  That  no  witness  shall  be  deemed  guilty  of 
contempt  for  disobeying  any  subpoena  directed  to  him  by 
virtue  of  this  Act,  unless  his  fees,  for  going  to,  returning 
from,  and  one  day's  attendance  at  the  place  of  examination, 
shall  be  paid  or  tendered  to  him  at  the  time  of  the  service 
of  the  subpoena. " 

Thus  far  the  modes  of  procuring  testimony  in  the  United 
States  Courts  are  in  close  resemblance  to  those  employed 
in  our  State  Courts,  but  the  15th  section  of  the  Act  of 
1789  contains  provisions  of  a  more  stringent  nature  than 
are  known  to  our  State  practice.  In  our  State  Court  when 
a  party,  after  due  notice,  fails  to  produce  a  paper,  the  only 
remedy  for  the  party  calling  for  the  paper  is  to  introduce 
secondary  evidence  of  its  contents,  but  the  15th  section  of 
the  Act  of  Congress  of  1789,  provides  that  "all  Courts  of 
the  United  States  shall  have  power  in  the  trial  of  actions  at 
law,  on  motion  and  due  notice  thereof  being  given,  to 
require  the  parties  to  produce  books  or  writings  in  their 
possession  or  power,  which  contain  evidence  pertinent  to 
the  issue  in  cases  and  under  circumstances  where  they 
might  be  compelled  to  produce  the  same  by  the  ordinary 
rules  of  proceeding  in  chancery,  and  if  a  plaintiff  shall  fail 
to  comply  with  such  order,  to  produce  books  or  writings,  it 
shall  be  lawful  for  the  Courts  respectively,  on  motion,  to 
give  the  like  judgment  for  the  defendant,  as  in  cases  of 
nonsuit,  and  if  a  defendant  shall  fail  to  comply  with  such 
order,  to  produce  books  or  writings,  it  shall  be  lawful  for 
the  Courts  respectively,  on  motion  as  aforesaid,  to  give 
judgment  against  him  or  her  "by  default." 

This  section,  it  has  been  held,  does  not  destroy  the  right 
to  introduce  secondary  evidence  of  the  contents  of  a  paper, 
but  furnishes  an  additional  means  of  securing  the  produc- 
tion of  the  paper.a    When,  therefore,  a  party  in  a  cause 

a  Iasigi  vs.  Brown,  1  Curtis,  402. 


115 

wishes  the  production  of  papers  supposed  to  be  in  the 
possession  of  the  other,  he  must  give  him  notice  to  produce 
them.  If  they  are  not  produced,  lie  may  give  secondary 
evidence  of  their  contents,  or  may  draw  inferences  from 
their  non-production  unfavorable  to  the  party  not  producing 
them,  or  he  may  move  for  a  non-suit  or  judgment  by 
default  as  the  case  may  be.  But  to  entitle  the  party  call- 
ing for  the  production  of  papers  to  a  judgment  by  default 
or  nonsuit,  he  must  show  that  the  papers  contained  evidence 
pertinent  to  the  issue,  and  are  in  the  possession  of  the 
opposite  party,  and  that  he  had  given  notice  to  the  opposite 
party,  that  if  the  papers  were  not  produced,  he  would  move 
the  Court  for  an  order  upon  the  party  in  possession  to  pro- 
duce them,  or  on  failure  so  to  do,  to  award  a  nonsuit  or 
judgment  by  default/  The  motion  for  a  nonsuit  or  judg- 
ment by  default  can  only  be  made  after  a  non-compliance 
with  the  order  of  the  Court  for  the  production  of  the 
papers.b  The  application  for  an  order  to  produce  papers 
may  be  made  on  notice  before  trial,  and  in  such  case  the 
correct  practice  seems  to  be,  after  the  moving  party  has 
made  a  prima  facie  case,  to  enter  an  order  upon  the  opposite 
party  to  produce  at  the  trial  the  papers  described  in  the 
motion,  or  to  show  cause  at  the  trial  why  the  same  are  not 
produced.0 

The  party  in  possession  of  papers  cannot,  however,  be 
compelled  to  produce  them  until  the  trial  has  commenced.11 

The  party  called  on  to  produce  papers  may  reply  by  his 
own  affidavit  denying  his  possession  of  the  papers,  and  this 
may  be  met  by  contrary  proof,  according  to  the  rules  of 
equity.6 

The  defendant  has  the  right  in  the  State  Court  to  move 
for  a  nonsuit,  when  in  his  opinion  the  plaintiff  has  failed  to 
show  a  legal  right  to  maintain  the  action ;  but  in  the  case 

a  Bas  vs.  Steele,  3  Wash.  C.  C,  381. 

*  Thompson  vs.  Selden,  20  How.,  197. 

0  Iasigi  vs.  Brown,  1  Curtis  C.  C,  402. 

d  Hylston  vs.  Brown,  1  Wash.  C.  C,  298 ;  Iasigi  vs.  Brown,  1  Curtis  C.  C,  402. 

e  Bas  vs.  Steele,  3  Wash.  C.  C,  381. 


116 

of  Elmore  vs.  Green,  1  Pet,,  469,  it  was  held  that  a  Circuit 
Court  had  no  authority  to  order  a  peremptory  nonsuit 
against  the  will  of  the  plaintiff.  That  the  plaintiff  had  a 
right  hy  law  to  a  trial  by  jury,  and  to  have  the  case  sub- 
mitted to  them.  He  might  agree  to  a  nonsuit,  but  if  he  did 
not  so  choose,  the  Court  could  not  compel  him  to  submit  to 
it.  It  is  competent,  however,  for  the  plaintiff  in  the  United 
States  Court,  as  in  the  State  Court,  voluntarily  to  take  a 
nonsuit  at  any  time  before  the  verdict  is  published ;  and  the 
defendant  has  the  right  when  the  plaintiff  has  closed  his 
case,  to  move  the  Court  to  instruct  the  jury  that  if  the  evi- 
dence is  believed  by  the  jury  to  be  true,  the  plaintiff  is  not 
entitled  to  recover,  and  in  the  language  of  the  Court,  such 
an  instruction  "  makes  it  imperative  upon  the  jury  to  find 
a  verdict  for  the  defendant." a  The  defendant  thus  obtains 
a  better  result  from  the  granting  of  his  instruction  than  he 
would  from  the  granting  of  the  nonsuit,  as  that  would  only 
abate  the  particular  action,  while  the  verdict  under  the 
instructions  would  destroy  the  cause  of  action.  It  is  proper 
also  to  note  the  difference  which  exists  between  the  practice 
of  the  United  States  Court,  and  that  of  the  State  Court  rela- 
tive to  the  reply  in  argument,  The  practice  in  the  State 
Court  is  as  has  been  seen,  that  the  defendant  omitting  to  offer 
evidence,  entitles  himself  to  the  reply  in  argument.*  A  simi- 
lar practice  does  not  obtain  in  the  United  States  Court,  but 
the  plaintiff'  opens  and  closes  whether  the  defendant  intro- 
duces testimony  or  not.  Such  is  the  rule  in  this  District, 
The  practice,  however,  varies  in  the  different  Districts. 

All  judgments  obtained  at  the  same  time  have  equal  rank, 
provided  the  judgment  is  entered  up  within  five  days  after 
the  party  is  entitled  to  the  same.  It  may,  however,  be 
entered  up  at  any  time  before  the  second  term  after,  to  take 
precedence  from  date.  If  not  entered  before  the  second 
term,  they  cannot  be  entered  up  without  a  motion  at  rules 
or  in  open  Court.0 

The  judgment  when  duly  entered  up  is  a  lien  on  real 

a  Parks  vs.  Ross,  11  Howard,  362.  b  Ante,  26.  c  Rules  12  and  13. 


117 

estate  or  chattels  real,  in  the  same  manner  as  judgments  of 
the  State  Court,  and  cease  to  be  liens  in  the  same  manner 
and  at  like  periods  as  the  judgments  of  the  State  Courts. :l 
The  preparatory  step  by  which  the  judgment  is  obtained 
and  the  lien  established,  depend  upon  the  practice  of  the 
Court,  and  that  practice  is  settled  by  the  Federal  Courts 
under  the  power  given,  as  has  already  been  seen  by  the  Acts 
of  1792  and  1828;  but  the  judgment  once  obtained,  the  lien 
of  it  arises  under  and  is  regulated  by  the  State  laws.  The 
lien  is  considered  as  a  rule  of  property,  and  a  rule  of  deci- 
sion under  the  34th  §  of  the  Judiciary  Act;  and  as  we  have 
already  seen,1' the  United  States  Courts  conform  to  the  rules 
of  property  established  by  the  State  laws.0 

Interest  is  also  allowed  on  the  judgments,  when  by  the 
laws  of  the  State  interest  would  be  allowed  on  judgments  in 
the  State  Courts.d 

The  judgment  being  entered  up,  the  execution  issues  on 
the  rule  day  next  after  the  setting  of  the  Court  at  which  the 
judgment  was  obtained.6  The  plaintiff  may  take  out  a  ca. 
sa.  in  the  first  instance  ;f  or  may  issue  ji.  fa.  and  ca.  sa. 
together,  and  proceed  in  such  manner  as  to  the  issuing  and 
renewal  of  executions,  as  is  prescribed  by  the  State  laws  of 
force  in  1828.  The  22nd  Rule  of  Court,  adopts  the  provi- 
sion of  the  Act  of  the  State  of  1839,  and  provides  that  no 
new  execution  shall  issue  until  that  previously  issued  has 
been  returned,  except  by  special  order  of  a  Judge. 

The  execution  is  tested  in  the  name  of  the  Chief  Justice 
of  the  United  States  and  of  the  day  of  the  adjournment  of 
the  Court,  and  is  returnable  to  the  next  term  of  the  Court. 
The  form  of  the  writ  is  the  same  as  in  the  State  Court.2 

The  executions  run  throughout  the  district,  and  under  it 


a  Act  of  1840,  £  5,  Stat,,  393. 

b  Ante  page  101. 

c  Clements  vs.  Berry,  11  Howard,  111  ;  Massingill  vs.  Downs,  7  Howard,  760. 

rt  1S42,  8  £,  5  Stat,,  518. 

c  21st  Rule  of  Court. 

f  Act  of  1?02,  2  £,  1  Stat,,  270. 

s  Act  of  1828,  3  I,  4  Stat.,  281  ;  see  Appendix  for  form  of  writ. 


118 

a  levy  may  be  made  on  any  property  subject  to  levy  by  the 
State  laws  of  force  in  1828. 

The  43d  and  44th  Rules  of  Court  prescribe  the  duties  of 
the  Marshal  in  making  sales  of  property,  and  for  defaults  in 
his  official  duty,  the  Marshal  may  be  ruled  in  like  manner 
as  the  State  Sheriff;  and  is,  in  like  manner,  liable  on  his 
official  bond  to  the  parties  injured.  (See  Act  of  1789,  §  27, 
1  U.  S.  Stat.,  87;  Act  of  1800,  §  3,  2  U.  S.  Stat.,  61  ;  and 
Act  of  1806,  2  TJ.  S.  Stat.,  372,  as  to  office  and  duties  of 
Marshals.) 

Subject  to  the  exceptions  above  pointed  out,  the  practice 
of  the  United  States  Court  conforms  to  that  of  the  State 
Court,  and  a  reference  to  the  preceding  part  of  this  work 
will  indicate  the  proper  course  of  proceeding  in  the  differ- 
ent stages  of  a  cause.  The  Rules  of  the  Circuit  Court  for 
this  District  are  contained  in  Miller's  Compilation,  and  an 
examination  of  them  will  show  how  slightly  they  vary  from 
those  prescribed  to  the  State  Courts. 


BAIL. 


The  right  to  hold  to  bail  is  left  by  the  laws  of  Congress 
to  be  determined  by  the  local  laws  and  practice  in  each 
district.  The  local  laws  and  practice  which  govern  in  this 
district,  are  such  as  were  in  force  at  the  passage  of  the  Pro- 
cess Act  of  1792,  subject  of  course  to  such  modifications  as 
have  been  introduced  by  Rule  of  Court.3, 

There  is  not,  I  believe,  any  difference  between  the  prac- 
tice of  the  Courts  of  the  State  and  the  Courts  of  the  United 
States  for  this  District,  as  to  the  proceedings  to  hold  to  bail. 

In  cases  "sounding  in  contract,"  there  must  be  an  affi- 
davit of  the  sum  actually  due  attached  to  the  writ,  and  an 
order  endorsed  thereon  requiring  bail  to  be  taken. b  The 
order  of  the  plaintiff's  attorney  is  sufficient.  In  all  special 
cases  the  order  of  a  Judge  shall  be  obtained.  The  Act  of 
Congress  of  1812°  gives  to  the  commissioners  appointed  by 

a  Miller's  Compilation,  p.  75.  b  Sixty-second  Rule,  Ibid. 

c  1  £,  2  Stat.,  679;    see   also  Payne  vs.  Drew,  4  East.,  523;  Hogan  vs.  Lucas,  lg 
Pet.,  400;  Taylor  vs.  Caryl,  20  Howard,  594;  Ex  parte,  Dow,  3  Howard,  103. 


119 

the  Circuit  Court  the  same  power  to  take  acknowledgments 
of  bail,  as  is  possessed  by  the  Judges,  but  there  is  no  power 
as  yet  given  to  the  commissioners  to  make  an  order  for  bail. 

Although  the  right  to  hold  to  bail  and  the  proceedings  to 
hold  to  hail  are  the  same  in  the  Courts  of  the  United  States 
as  of  the  State,  there  is  a  restriction  upon  the  exercise  of 
the  right  which  arises  in  cases  where  jurisdiction  of  the 
State  Court  and  of  the  United  States  Court  attaches  upon 
the  same  person.  The  fundamental  principle  upon  which 
Courts  entertaining  jurisdiction  over  the  same  subject- 
matter  act,  is,  that  when  there  is  equal  jurisdiction,  that 
which  first  attaches  is  exclusive,  consequently  when  the 
defendant  is  in  custody  of  the  law  under  a  process  issuing 
from  a  State  Court,  lie  cannot  be  arrested  by  process  issuing 
from  the  Court  of  the  United  States.  In  the  case  of  Good- 
win vs.  Cohen  &  Cohen, a  the  defendants  were  arrested  under 
ca.  sa.  issuing  from  State  Court,  and  gave  prison  bounds 
bonds,  and  applied  for  insolvent  debtors  Act ;  subsequent 
to  these  proceedings,  they  were  arrested  on  ca.  sa.  issuing 
from  the  United  States  Court.  They  moved  to  set  aside  the 
arrest,  and  it  was  held  that  the  arrest  was  irregularly  made  ; 
that  the  defendants  were  to  be  considered  as  in  the  posses- 
sion of  the  Sheriff,  under  process  of  a  Court  of  competent 
jurisdiction ;  that  the  possession  of  the  Sheriff  was  exclu- 
sive, and  that  the  execution  of  the  ca.  sa.  by  the  United 
States  Marshal  could  only  be  by  an  actual  arrest  of  the  body 
of  the  defendant,  which  arrest  would  interfere  with  the  pos- 
session and  impair  the  custody  of  the  Sheriff.  The  motion 
was  accordingly  granted,  and  the  arrest  by  the  Marshal  set 
aside. 

The  same  principle  was  enunciated  in  the  case  of  Lane  & 
Co.  vs.  Bethea.b  The  defendants  were  in  custody  of  Sheriff 
under  ca.  sa.,  issuing  from  the  State  Court.  A  bail  writ 
issuing  from  the  United  States  Court,  was  directed  to  the 
Marshal,  who  arrested  the  defendant  and  took  a  bail  bond 
A  motion  was  made  to  set  aside  the  arrest  and  cancel  the 

bond,  and  it  was  held  that  in  conformity  to  the  principles 

• 

»  MSS.  Decision  per  Magrath,  J.,  1858.  b  MSS.  Decision  per  Magrath,  J.,  1858. 


120 

declared  in  Goodwin  vs.  Cohen  &  Cohen,  that  the  Marshal 

had  no  [tower  to  make  the  arrest,  and  if  none  to  make  the 
arrest,  none  to  require  the  bond,  which  is  of  course  but  a 
substitute  for  the  body.  The  arrest  was  accordingly  set 
aside,  and  the  bail  bond  cancelled. 

In  the  above  cases  the  defendant  was  in  custody  of  the 
Sheriff  under  ca.  sa.  at  the  time  the  process  of  the  United 
States  Court  was  executed  upon  them,  and  of  course  the 
positive  authority  of  a  decision  is  co-extensive  only  with 
the  facts  upon  which  it  is  made.  The  principle  will,  how- 
ever, it  is  apprehended,  apply  to  all  cases  where  the  defend- 
ant is  in  custody  of  the  Sheriff,  under  process  of  the  State 
Court,  whether  mesne  or  final,  at  the  time  that  the  process 
of  the  United  States  Court  is  executed. 

The  governing  principle  applicable  alike  to  the  Courts  of 
the  State  and  of  the  United  States,  is  non-interference  by 
either  with  the  custody  exercised  by  the  office  of  the  other 
under  appropriate  legal  process  directed  to  them,  and 
whether  the  process  is  mesne  or  final,  whether  the  defend- 
ant is  in  custody  under  bail  writ  or  ca.  sa.  is,  it  is  presumed, 
immaterial,  for  in  either  case  there  is  an  arrest,  and  if  a 
subsequent  arrest  under  process  of  another  Court  was  per- 
mitted, the  custody  under  the  first  arrest  would  of  necessity 
be  disturbed. 

Although  it  has  not  been  decided,  and  therefore  cannot 
be  laid  down  as  law,  I  think  it  may  be  safely  said  that  a 
defendant  in  custody  of  one  Court,  or  under  bail  bond  to 
appear  and  answer  to  that  Court,  cannot  be  arrested  by 
process  issuing  from  the  other. 

It  is  probable,  however,  that  although  the  arrest  could  not 
be  made,  the  process  if  lodged  with  the  officer  having  cus. 
tody  of  the  defendant,  would  operate  as  a  detainer,  and  it 
would  be  in  abeyance  so  long  as  the  prior  arrest  was  in  full 
force,  but  resume  its  active  energy  as  soou  as  that  prior 
arrest  was  discharged. 

Bail  are  fixed  by  a  return  of  non  est  in  renins  to  a  ca.  sa.  or 
nulla  bona  to  afi.fa.  against  the  principal.11     This  is  at  vari- 

a  64th  Rule  of  Court. 


121 

ance  with  the  existing  State  law.  The  validity  of  the  rule 
was  called  in  question  before  the  Circuit  Court  for  South 
Carolina  in  the  case  of  Ross  &  Leitch  vs.  Mclntyre."  It  was 
held,  however,  that  the  bail  bond  and  the  proceedings  upon 
it  were  not  included  in  the  proceedings  upon  writs  of  execu- 
tion and  other  final  process  within  the  meaning  of  the  Act 
of  Congress  of  1828,  but  were  included  in  the  "  forms  and 
modes  of  proceedings  in  suits  at  common  law,"  according 
to  the  Act  of  Congress  of  1792,  and  that  to  determine  the 
epiestion  presented,  resort  must  be  had  to  what  was  the  law 
of  the  State  fixing  the  liability  of  the  bail  at  that  time,  and 
that  by  the  State  law  of  1785,b  the  plaintiff  might  on  the 
return  of  non  est  inventus  to  a  ca.  sa.  or  nulla  bona  to  a  fi.  fa. 
have  a  sci.  fa.  against  the  bail,  and  accordingly  the  sixty- 
fourth  Rule  was  sustained  as  in  conformity  to  the  State  law 
at  the  passage  of  the  Act  of  Congress  regulating  the  pro- 
ceeding. Subsequent  changes  in  the  State  law  cannot  as 
has  already  been  stated,  furnish  any  rule  of  operation  for 
the  Courts  of  the  United  States  until  such  changes  have 
been  adopted  by  Act  of  Congress  or  the  Rules  of  the  Court. 


APPEAL. 

The  party  dissatisfied  with  the  result  of  the  suit  may 
appeal,  either  by  motion  in  arrest  of  judgment,  or  by 
motion  for  a  new  trial,  or  by  writ  of  error. 

The  motion  in  arrest  of  judgment  is  addressed  to  the 
Circuit  Court  which  heard  the  case,  and  is  governed  by 
the  principles  of  the  common  law.  A  reference,  therefore, 
to  the  standard  text  books  on  practice  in  Common  Law 
Courts  will  furnish  all  that  will  be  needed  upon  the  subject. 
The  time  within  which  a  motion  in  arrest  of  judgment  can 
be  made  is  limited  by  the  fifteenth  Rule  of  the  Circuit 
Court  for  the  District  of  South  Carolina,0  which  prescribes 
that  notice  of  the  motion  and  the  grounds  thereof  must  be 
given  within  two  days  after  the  rendition  of  the  verdict. 
• 

a  MSS.  Decision  per  Magrath,  J.,  1858.  b  7  S.  C.  Stat.,  215. 

c  See  Miller's  Compilation. 


122 

The  motion  for  a  new  trial  is  by  virtue  of  the  Judiciary 
Act  of  1789, a  which  provides  "that  all  the  said  Courts  of 
the  United  States  shall  have  power  to  grant  new  trials  in 
cases  where  there  has  been  a  trial  by  jury,  for  reasons  for 
which  new  trials  have  usually  been  granted  in  Courts  of 
Law."  The  motion  is  addressed  to  the  discretion  of  the 
Court  which  heard  the  cause,  and  from  its  judgment,  grant- 
ing or  refusing  a  new  trial,  there  is  no  appeal. b 

The  practice  in  moving  for  new  trials  is  regulated  by  the 
Act  of  1789,°  which  provides  that,  "when  judgment  upon 
a  verdict  in  a  civil  action  shall  be  entered,  execution  may, 
on  motion  of  either  party,  at  the  discretion  of  the  Court 
and  on  such  conditions  for  the  security  of  the  adverse  party 
as  they  may  judge  proper,  be  stayed  forty -two  days  from 
the  time  of  entering  judgment,  to  give  time  to  file  in  the 
Clerk's  office  of  said  Court  a  petition  for  a  new  trial.  And 
if  such  petition  be  there  filed  within  said  term  of  forty- 
two  days,  with  a  certificate  thereon  from  either  of  the 
Judges  of  such  Court  that  he  allows  the  same  to  be  filed, 
which  certificate  he  may  make  or  refuse  at  his  discretion, 
execution  shall  of  course  be  further  stayed  to  the  next 
session  of  the  said  Court." 

The  fifteenth  Rule  of  Court  requires  that  notice  of  a 
motion  for  a  new  trial,  and  "the  grounds  thereof,"  shall 
be  given  within  two  days  after  verdict.  This  rule,  in  con- 
nection with  the  subject  of  new  trials,  has  never,  so  far  as 
I  am  aware,  received  judicial  construction,  but  it  is  clearly 
repugnant  to  the  statute  above  cited.  The  rule  recpiires 
notice,  and  the  grounds  of  the  motion  within  two  days 
after  verdict,  and  if  the  rule  is  valid,  the  omission  to  give 
the  notice  within  the  required  time  would  deprive  the 
defeated  party  of  his  appeal,  but,  on  the  contrary,  the 
statute  gives  the  right  to  appeal  by  motion  for  new  trial, 
even  after  judgment  "shall  be  entered;"  the  only  limita- 
tion being  that  the  execution  shall  not  be  stayed  to  allow 

a  §  17,  1  U.  S.  Stat.,  21. 

*>Life  Insurance   Co.  vs.  Wilson,  8  Pet.,  303;  U.   S.  vs.   Daniel,  6  Wheat.,  543 J 
Barr  vs.  Gratz,  4  Wheat.,  215, •  Henderson  vs.  Moore,  5  Cranch,  11. 
c  I  18,  1  Stat.,  83. 


123 

the  petition  to  be  filed  more  than  forty-two  days  from  the 
time  of  entering  judgment.  The  rule  only  allows  the 
defeated  party  two  days  within  which  to  allege  the  grounds 
upon  which  he  moves.  The  Act  allows  forty-two  days. 
In  practice  the  fifteenth  Rule  of  Court  is  ignored  and  the 
directions  of  the  Act  implicitly  followed. 

The  petitions  required  by  the  Act  should  set  forth  clearly 
and  distinctly  the  grounds  upon  which  the  party  considers 
himself  entitled  to  a  new  trial.  When  prepared,  it  is  pre- 
sented to  the  Judge  who  heard  the  cause,  and  it  is  in  his 
discretion  to  allow  it  to  be  filed,  or  to  refuse  it.  If  he 
allows  it,  he  signs  it,  and  it  is  then  filed  in  the  Clerk's 
office,  and  the  motion  docketed  for  hearing  at  the  next 
term. 

The  motions  in  arrest  of  judgment  and  for  a  new  trial 
may  be  made  simultaneously,  but  no  motion  in  arrest  of 
judgment  will  be  heard  after  a  new  trial  once  granted/ 
Both  these  motions  are  irrespective  of  the  amount  involved 
in  the  litigation. 

According  to  the  English  practice,  a  motion  for  a  new 
trial  is  a  waiver  of  a  writ  of  error,  and  in  some  of  the 
Circuits  of  the  United  States  there  is  a  rule  to  this  effect, 
but  the  better  doctrine  seems  to  be,  that  a  new  trial  is  not 
a  waiver  of  a  writ  of  error,  and  even  where  by  the  rules  of 
Court  it  is  a  waiver,  effect  can  only  be  given  to  the  rule  by 
entering  the  waiver  on  the  record  before  the  motion  for  a 
new  trial  is  heard.b 

The  third  mode  of  appeal  is  by  writ  of  error,  and  the 
appeal  is  addressed,  not  as  in  the  two  preceding  modes  to 
the  Court  which  heard  the  cause,  but  is  to  the  Supreme 
Court.  The  Judiciary  Actc  provides,  "  that  final  judg- 
ment and  decrees  in  civil  actions  and  suits  in  equity  in  a 
Circuit  Court,  brought  there  by  original  process,  or  removed 
there  from  Courts  of  the  several  States,  or  removed  there 
by  appeal  from  a  District  Court,  where  the  matter  in 
dispute  exceeds  the  sum  or  value  of  two  thousand  dollars, 

a  Rule  15.  >'  U.  S.  vs.  Hodge,  6  How.,  284.  c  1789,  §  22,  1  Stat.,  S3. 


124 

exclusive  of  costs,  may  be  re-examined,  and  reversed  or 
affirmed  in  the  Supreme  Court  upon  writ  of  error,  whereto 
shall  be  annexed  and  returned  therewith,  at  the  day  and 
place  therein  mentioned,  an  authenticated  transcript  of  the 
record,  an  assignment  of  errors,  and  prayer  for  reversal, 
with  a  citation  to  the  adverse  party,  signed  by  a  Judge  of 
the  Circuit  Court  or  Justice  of  the  Supreme  Court,  the 
adverse  party  having  at  least  thirty  days'  notice." 

From  this  Act,  it  will  be  perceived  that  to  entitle  a  party 
to  carry  a  case  up  to  the  Supreme  Court,  two  things  must 
concur.  The  judgment  must  be  a  final  judgment,  and  the 
matter  in  dispute  must  exceed  the  sum  of  two  thousand 
dollars,  exclusive  of  costs. 

A  final  judgment  is  one  which  determines  the  particular 
cause;  it  need  not  finally  determine  the  right,8  and  any 
proceeding  in  which  a  right  is  litigated  between  parties  in 
a  Court  of  Justice  is  a  suit.b 

The  matter  in  dispute  must  exceed  the  sum  of  two 
thousand  dollars,  -exclusive  of  costs.  The  amount  actually 
in  dispute  between  the  parties  at  the  time  of  the  judgment 
is  the  criterion  of  the  jurisdiction",6  and  the  subsequent 
accrual  of  interest  cannot  be  relied  on  to  bring  the  sum 
within  the  jurisdiction. d  When  the  plaintiff  sues  on  a 
money  demand,  and  claims  in  his  pleadings  more  than  two 
thousand  dollars,  and  obtains  a  judgment  for  a  smaller  sum, 
the  amount  for  which  judgment  is  rendered  is  the  only  matter 
in  dispute  where  the  defendant  appeals  by  writ  of  error. 
But  if  the  plaintiff  brings  the  writ  of  error,  the  amount 
claimed  in  the  pleadings  is  the  matter  in  dispute,  for  if  the 
judgment  of  the  Circuit  Court  is  reversed,  non  constat  that 
he  may  not  recover  the  amount  claimed  in  the  declaration.0 


a  Weston  vs.  City  Council  of  Charleston,  2  Peters,  449;  Holmes  vs.  Jennison,  14 
Peters,  540. 

b  Ibid. 

c  Grant  vs.  McKee,  1  Peters,  24S;  Gruner  vs.  the  U.  S.,  11  How.,  163. 

d  Knapp  vs.  Banks,  2  How.,  73. 

e  Gordon  vs.  Ogden,  3  Peters,  33;  Knapp  vs.  Banks,  2  How.,  73;  Bennett  vs. 
Buttenvorth,  8  How.,  124. 


125 

Originally  the  writ  of  error  issued  from  and  was  returnable 
to  the  Supreme  Court,  but  it  having  been  found  inconveni- 
ent to  apply  to  the  Clerk  of  the  Supreme  Court  for  the 
writ  to  be  issued  to  remote  parts  of  the  Union,  it  was  pro- 
vided by  the  Act  of  1792a  that  the  Clerk  of  the  Supreme 
Court  should  transmit  to  the  Clerks  of  the  several  Circuit 
Courts  the  form  of  a  writ  of  error,  to  be  approved  by  any 
two  of  the  Judges  of  the  Supreme  Court,  and  the  Clerks 
of  the  Circuit  Courts  were  authorized  to  issue  wrrits  of  error 
agreeably  to  such  form,  under  seal  of  the  Circuit  Court, 
returnable  to  the  Supreme  Court.  ~Zctr& 

The  writ  of  error  must  be  brought  within  £ve- years  after 
rendition  of  the  judgment  complained  of,  or,  in  case  the 
person  entitled  to  the  wnt.be  non  compos  mentis,  feme  covert, 
or  imprisoned,  then  within-irve  years,  as  aforesaid,  exclusive 
of  the  time  of  such  disability ;''  and  the  Judge,  on  signing 
the  citation  on  any  writ  of  error,  shall  take  good  and  suffi- 
cient security  that  the  plaintiff  in  error  shall  prosecute  his 
writ  to  effect  and  answer  all  damages  and  costs  if  he  fail  to 
make  his  plea  good. 

In  the  ordinary  course  of  proceeding,  the  judgment 
would  be  enforced  by  execution,  and  the  debt  satisfied 
before  the  cause  could  be  heard  by  a  Supreme  Court.  To 
prevent  such  a  result,  it  is  provided  that  the  writ  of  error 
may  operate  as  a  supersedeas  or  stay  of  execution  where 
a  copy  of  the  writ  of  error  is  lodged  for  the  adverse  party 
in  the  Clerk's  office  where  the  record  remains,  within  ten 
days  (Sundays  excepted)  after  the  rendition  of  the  judgment 
complained  of,  and  until  the  expiration  of  the  above  term 
of  ten  days,  executions  shall  not  issue  in  any  case  where  a 
writ  of  error  may  be  a  supersedeas." 

The  security  which  the  Judge  is  required  to  take,  before 
signing  a  citation  on  any  writ  of  error,  must  be  in  the 
words  of  the  Act,  "good  and  sufficient  security,"  and  it  is 
thus  left  to  the  Court  to  determine  the  sufficiency.  The 
security  taken  is  in  the  form  of  a  bond,  with  approved 

a  I  9,  1  Stat.,  278.  »  22  g,  1789,  1  Stat..,  84  c  1789,  23  g. 


126 

sureties,  to  the  defendant  in  error  or  appellee.  Where  the 
writ  of  error  operates  as  a  supersedeas  of  execution,  the 
penalty  of  the  hond  must  he  sufficient  to  cover  the  amount 
of  the  judgment,  the  costs,  and  any  damage  which  may  be 
adjudged  against  him,  should  he  fail  in  his  appeal. a  Where 
the  writ  does  not  operate  as  a  supersedeas,  the  penalty  need 
only  he  sufficient  to  cover  the  costs  that  may  he  awarded  to 
the  defendant  in  error. b 

The  writ  is  returnable  to  the  Supreme  Court,  and  there 
must  be  returned  with  it  an  authentic  transcript  of  the 
record,  an  assignment  of  errors,  and  prayer  for  reversal. 
The  errors  which  are  corrected  by  the  Supreme  Court  are 
errors  in  law.  All  that  pertains  to  the  facts,  to  the  weight 
of  testimony,  the  amount  of  damage,  or  to  the  conduct  of 
the  Jury,  are  matters  cognizable  only  in  the  Court  below 
on  a  motion  for  a  new  trial.  In  the  Supreme  Court,  the 
rulings  of  the  Judge  upon  points  of  law  alone  are  subject  to 
revision,  and  the  Supreme  Court  will  regard  nothing  else. 
It  is,  therefore,  incumbent  on  the  party  who  intends  to  seek 
in  the  Supreme  Court  a  revision  of  the  law  applied  to  the 
case  on  the  trial,  to  take  care  to  raise  the  questions  of  law 
to  be  revised,  and  put  the  facts  on  the  record  for  the  informa- 
tion of  the  appellate  tribunal,  and  if  he  omits  to  do  so  in 
any  of  the  methods  known  to  the  practice  of  such  Courts, 
he  must  abide  the  consequences  of  his  neglect.  Whatever 
the  error  may  be,  and  in  whatever  stage  of  the  cause  it  may 
have  occurred,  it  must  appear  in  the  record,  else  it  cannot 
be  revised  in  a  Court  of  Error,  exercising  jurisdiction 
according  to  the  course  of  the  common  law.0  It  is,  there- 
fore, necessary  to  allude  now  to  the  proper  mode  of  assign- 
ing the  errors  for  the  correction  of  which  the  case  is  to  be 
carried  to  the  Supreme  Court,  and  of  incorporating  into  the 
record  the  facts  necessary  to  a  proper  comprehension  of  the 
legal  points  submitted  for  revision. 

Where  there  is  no  dispute  as  to  the  facts,  and  consequently 
no  necessity  for  any  ruling  of  the  Court  in  admitting  or 

a  Cartlett  vs.  Brodie,  9  Wheat.,  553.  b  Act  of  1789,  £  22. 

"  Suydam  vs.  Williamson,  20  How.,  433. 


127 

rejecting  evidence,  the  facts  may  appear  on  the  record  by  a 
special  verdict,  in  which  the  jury  find  the  facts  and  refer  the 
law  arising  thereon  to  the  Court,  or  a  statement  of  them 
may  he  agreed  upon  by  the  parties  and  entered  on  the 
record,  and  submitted  directly  to  the  Court  for  its  decision, 
without  the  intervention  of  a  jury;  or  a  general  verdict 
may  be  taken  subject  to  the  opinion  of  the  Court  upon  the 
facts  agreed  upon ;  and  in  either  case  the  aggrieved  party 
may  bring  error  after  final  judgment,  and  have  the  questions 
of  law,  arising  upon  the  facts  thus  placed  upon  the  record, 
re-examined. 

From  what  has  been  above  stated,  it  will  be  seen  that 
a  writ  of  error  will  lie  upon  a  judgment  entered  on  an 
agreed  statement  of  facts,  signed  by  the  counsel  and 
entered  on  the  record  in  the  Court  below.  In  this  respect, 
the  practice  of  the  United  States  Court  differs  from  the 
practice  of  the  English  Courts,  for  according  to  the  latter,  a 
writ  of  error  will  not  in  such  case  lie.  The  reason  of  the 
difference  is,  that  according  to  the  United  States  practice, 
the  statement  of  facts  is  entered  on  the  record,  and  the  writ 
of  error  carries  it  up  to  the  appellate  tribunal ;  but  by  the 
English  practice,  there  is  nothing  on  the  record  but  the 
general  verdict,  and  consequently  no  means  of  ascertaining 
how  far  the  rulings  of  the  Court  below  are  correct.'-1 

In  all  of  the  modes  of  carrying  up  a  case  for  revision 
above  stated,  the  facts  of  the  case  are  agreed  upon,  but  it 
is  evident  that  serious  and  embarrassing  questions  may  fre- 
quently arise  as  to  the  admission  or  rejection  of  evidence  to 
establish  the  facts,  or  upon  the  instructions  of  the  Court  to 
the  jury,  and  it  maybe  desirable  to  submit  the  rulings  of 
the  Court  below  upon  these  matters  to  the  revision  of  the 
appellate  tribunal.  This  can  only  properly  be  done  by  a 
bill  of  exceptions,  which  is  the  safest  as  it  is  the  most  com- 
prehensive method  of  carrying  up  to  the  appellate  tribunal 
for  revision  the  errors  supposed  to  have  occurred  on  the 
trial  below. 


a  3  Blaekstone  Com.,  2T5;  Tidd's  Practice:  United  States  vs.  Eliason,  10  Peters, 
299  ;  Stimpson  vs.  Baltimore  Railroad  Company,  10  Howard,  329. 


128 

At  common  law,  bills  of  exception  on  account  of  any 
incorrect  conduct  on  the  part  of  the  Judge  who  had  tried 
the  cause  at  assize  or  nisi  prius,  were  probably  unknown  or 
but  little  in  practice. 

The  misdirections  or  mistakes  of  the  Judge  could,  it  is 
true,  be  corrected  by  a  new  trial,  to  be  granted  by  the 
Judges  in  banc;  but  as  the  report  of  the  Judge  who  had 
heard  the  cause  was  in  practice  conclusive  as  to  what  pro- 
ceedings had  been  had  at  the  trial  below,  it  is  evident  that 
there  was  no  protection  to  the  suitor  from  the  wilful  or 
inadvertent  misstatement  of  the  proceedings  by  the  Judge 
in  his  report. 

To  remedy  this  defect  in  the  administration  of  justice,  the 
statute  of  Westminster  the  2nda  enacted  that  "when  one 
that  is  impleaded  before  any  of  the  Justices  doth  allege  an 
exception  praying  that  the  Justices  will  allow  it,  which  if 
they  will  not  allow,  if  he  that  alleged  the  exception  do  note 
the  same  exception  and  recpiire  that  the  Justices  will  put  to 
them  seals  for  a  Avitness,  the  Justices  shall  do  so;  and  if  one 
will  not,  another  of  the  company  shall.  And  if  the  King, 
upon  complaint  made  of  the  Justices  cause  the  record  to 
roiue  before  him,  and  the  same  exception  be  not  found  in 
the  roll,  and  the  plaintiff  show  the  exception  written  with 
the  seal  of  a  Justice  put  to,  the  Justice  shall  be  commanded 
that  he  appear  at  a  certain  day  either  to  confess  or  deny  his 
seal ;  and  if  the  Justice  cannot  deny  his  seal,  they  shall  pro- 
ceed to  judgment  according  to  the  same  exception  as  it 
ought  to  be  allowed  or  disallowed." 

Since  that  statute,  if  the  Judge  at  nisi  prius  either  in  the 
admission  or  rejection  of  testimony,  or  in  his  directions  or 
observations  to  the  jury  misstates  the  law,  the  counsel  on 
either  side  who  consider  that  such  a  mistake  may  prejudice 
his  client,  should  immediately  respectfully  object  or  remon- 
strate, and  state  the  grounds  of  his  objection,  referring  briefly 
to  authority  or  reasoning  on  the  subject  to  show  that  the  law 
is  as  he  claims  it  to  be.     Should  the  opinion  of  the  Court 

a  13  Ed.  1  c,  31. 


129 

still  be  adverse,  the  counsel  may  then  publicly  require  the 
Judge  to  seal  a  hill  of  exceptions,  stating  the  point  on  which 
he  is  supposed  to  err,  or  if  he  refuse  so  to  do,  the  party 
may  have  a  compulsory  writ  against  him,  commanding  him 
to  seal  it, a  if  the  fact  alleged  he  truly  stated,  and  if  he 
return  that  the  fact  is  untruly  stated,  when  the  ease  is  other- 
wise, an  action  will  be  against  him  for  making  a  false  return. 
The  bill  of  exceptions  is  in  the  nature  of  an  appeal,  exam- 
inable not  in  the  Court  out  of  which  the  record  issues,  for 
the  trial  at  nisi  prius,  but  in  the  next  immediate  Superior 
Court  upon  a  writ  of  error,  after  judgment  given  in  the 
Court  below.1 

Originally  adopted  as  a  means  of  obtaining  from  the 
Judge  who  presided  at  the  trial  on  circuit,  a  fair  and  correct 
report  of  the  proceedings,  and  of  guarding  against  wilful  or 
unintentional  error,  Bills  of  exception  are  now  chiefly  valu- 
able as  presenting  in  a  concise  form  to  the  appellate  tribu- 
nal the  exact  point  for  judicial  determination,  and  constitute 
in  the  Courts  of  the  United  States  the  proper  and  appro- 
priate mode  of  correcting  the  error  of  a  Judge  on  the  trial 
of  a  cause  in  the  Circuit  Court. 

It  lies  in  general  for  the  improper  admission,  or  rejection 
of  evidence,0  but  if  the  case  is  not  tried  by  a  jury,  the  ad 'mis- 
sion of  evidence,  which  was  objected  to,  is  not  the  subject 
of  a  bill  of  exceptions/  although  the  rejection  of  evidence 
which  was  tendered,  is ;  the  distinction  being,  that  if  evi- 
dence is  improperly  admitted,  the  appellate  tribunal  will 
reject  it,  but  if  the  evidence  is  improperly  rejected,  the  appel- 
late tribunal  has  no  means  of  ascertaining  what  it  is  or  what 
would  have  been  its  influence  on  the  case.6 

It  is  however,  the  duty  of  a  party  excepting  to  the  admis- 
sion of  ( \  idence  on  the  trial,  to  point  out  with  precision  the 


:>  Ex  parte,  Crane,  5  Pet.,  190. 

b  Chitty  gi  neral  Practice,  4  vol.,  page  1;  3  Blackstone,  372;  Suydam  vs.  William- 
sun.  20  Howard,  428. 

c  Chitty's  Practice,  4—1;  2  Institute,  427. 
d  Field  vs.  The  United  States.  9  Pet.,  202. 
e  Arthurs  vs.  Hart,  17  Howard,  12. 

9 


130 

part  objected  to,  so  that  the  attention  of  the  Court  may  be 
drawn  to  it,  for  if  the  exception  cover  any  admissible  evi- 
dence, it  will  be  overruled;8  and  in  framing  the  bill  of 
exceptions,  it  is  not  sufficient  simply  to  state  that  the  evi- 
dence was  objected  to,  but  the  nature  and  grounds  of  the 
objection  must  be  stated.''  And  the  appellant  will  be 
restricted  in  examining  the  admissibility  of  testimony,  to 
the  specific  objection  taken  to  it  below,  as  the  attention  of 
the  Court  was  only  called  to  the  objection  then  made,  and 
on  that  alone  was  the  ruling  made.0 

But  in  addition  to  the  objection  taken  by  counsel  to  the 
admission  or  rejection  of  testimony,  there  may  be  supposed 
error  in  the  summing  up  of  the  Court,  or  in  the  instructions 
given  by  it  to  the  jury,  and  a  bill  of  exceptions  is  the  proper 
mode  of  carrying  their  errors  up  to  the  Appellate  Court  for 
revision/ 

The  practice  is  for  the  counsel  on  each  side  at  the  close 
of  the  testimony  and  before  argument,  to  submit  to  the 
Court  a  copy  of  the  instructions  which  the  Court  will  be 
asked  to  give  the  jury  upon  the  law  of  the  case,  and  the 
argument  is  then  directed  to  establish  the  legal  correctness 
of  the  instructions  prayed  for  and  their  applicability  to  the 
facts.  The  Court  may  refuse  to  instruct  the  jury  as  re- 
quested, or  may  modify  the  instructions  prayed  for.  In 
either  case  the  counsel  whose  instructions  are  refused  or 
modified,  and  who  deems  the  refusal  or  modification  injuri- 
ous to  his  client,  may  except  to  the  rulings  of  the  Court  in 
such  particular  and  tender  his  bill  of  exceptions  to  the 
Court, 

It  is  in  no  manner  obligatory  upon  either  party  to  pray  for 
special  instructions.  It  is  optional  with  them  to  do  so,  or  to 
leave  the  matter  to  the  Court  upon  the  arguments,  and  then 
file  exceptions  to  the  instructions  given  by  the  Court.  But 
it  is  advisible  to  ask  for  special  instructions  wherever  an 
appeal  is  contemplated,  for  thereby  the  legal  proposition 
which  counsel  think  applicable  to  the  case   are  distinctly 


a  Moore  vs.  Bank,  13  Pet.,  302.  c  Camden  vs.  Doremus,  :;  Howard,  515. 

b  Hinde  vs.  Lingworth,  11  Wheaton,  210.      d  See  form  in  Appendix. 


131 

stated,  the  attention  of  the  Court  is  specially  called  to  them, 
and  their  correctness  is  argued  to  the  Court,  and  in  the 
event  of  a  refusal  to  give  them,  there  is  no  uncertainty  as  to 
what  was  asked.  It  is  advisible  also  for  another  reason,  for 
if  a  party  does  not  ask  the  Court  to  instruct  the  jury  upon  a 
particular  point  of  the  case,  it  is  no  error  that  the  Court 
omitted  to  so  instruct  them.a  In  order  therefore  to  lay  a 
foundation  for  an  appeal,  the  party  should  ask  the  Court 
for  the  particular  instruction,  and  if  refused,  the  correct- 
ness of  the  refusal  can  then  he  tested  before  the  appellate 
tribunal.11  The  instructions  which  are  asked  of  the  Court, 
should  he  on  points  of  law  pertinent  to  the  issue,0  for  the 
Court  cannot  be  asked  to  give  opinions  upon  abstract  legal 
propositions/1  or  on  hypothetical  questions  which  do  not 
belong  to  the  case.6  It  is  only  in  the  application  of  legal 
propositions  to  the  testimony  of  the  case  that  the  Court  can 
be  asked  to  charge  the  jury,  or  exception  taken  to  the  ruling 
of  the  Court,  nor  ran  either  party  assume  certain  facts  to 
be  established  and  ask  the  Court  to  instruct  the  jury  on 
those  facts,  for  that  would  be  to  withdraw  the  decision  on 
the  facts  from  the  jury.  All  that  the  Court  can  properly  be 
asked  to  do,  is  to  lay  down  the  rule  of  law  to  be  applied  by 
the  jury,  according  as  they  find  the  facts/  Great  care  should 
be  taken  by  the  counsel  in  framing  the  instructions,  not  only 
to  present  all  the  legal  views  which  may  be  taken  of  the 
testimony  in  his  favor,  but  to  present  them  in  an  unobjec- 
tionable form ;  and  when  the  foundation  of  the  appeal  is 
the  refusal  of  the  Court  to  grant  a  particular  instruction 
prayed  for,  the  highest  caution  is  necessary,  for  it  is  not 
error  in  the  Court  to  refuse  the  instruction  prayed  for,  unless 
it  ought  to  have  prevailed  in  the  very  terms  in  which  it  was 
made.5 

a  Pennock  vs.  Dialogue,  2  Pot..  1. 
'■  Smith  vs.  Carrington,  4  Cranch,  71. 
°  Ibid. 

d  Brooks  vs.  Marbury,  11  Wheat.,  94. 
«  Elleiy  vs.  Bank  of  United  States,  11  Wheat.,  7.3. 
1  Patterson  vs.  Jenks,  2  Pet.,  226. 

eViolett  vs.  Patton,  5  C'r..  142:  Brooks  vs.  Marbury.  11  Wheat..  94:  Buck  v-. 
Chesapeake  Insurance  Co.,  1  Pet..  151. 


132 

When  the  Exception  should  be  Tendered. — It  is  a 
settled  principle  that  no  bill  of  exceptions  is  valid  which 
is  not  for  matter  excepted  to  at  the  trial,  and  it  must  appear 
by  the  manuscript  of  the  record  not  only  that  the  instruc- 
tions were  given  or  refused  at  the  trial,  but  also  that  the 
party  who  complains  of  them  excepted  to  them  while  the 
jury  were  at  the  bar.  The  reason  of  such  strictness  in 
requiring  the  exception  to  be  taken  and  noted  before  the 
jury  retire  from  the  bar,  is  that  the  Court,  thus  informed 
that  exception  is  taken  to  its  instruction  to  the  jury,  has 
the  opportunity  of  reconsidering  its  opinion,  or  explaining 
it  more  fully  to  the  jury.  The  bill  of  exceptions,  whether 
to  the  rejection  or  admission  of  evidence,  or  to  the  instruc- 
tions of  the  Court  to  the  jury,  need  not  be  formally  drawn 
and  signed  before  the  jury  retire  from  the  bar.  It  is  suffi- 
cient if  the  exception  is  taken  at  the  trial  and  noted  with 
the  requisite  certainty  by  the  Judge,  and  it  may  afterwards 
<lnring  the  term,  according  to  the  rules  of  the  Court,  be 
reduced  to  form  and  sealed  by  the  Judge,  and  such  is  in 
fact  the  general  practice.  The  bill  of  exception  may  be 
reduced  to  form  and  sealed  by  the  Judge  after  the  expira- 
tion of  the  term  by  consent  of  the  parties,  or  by  order  of 
the  Judge  made  during  the  term,  allowing  the  additional 
period  within  which  to  prepare  it.  But  in  all  such  cases 
the  bill  of  exception  is  signed  nunc  pro  tune,  and  it  purports 
on  its  face  to  be  the  same,  as  if  actually  reduced  to  form 
and  signed  pending  the  trial,  and  it  would  be  a  fatal  error 
if  it  were  to  appear  otherwise,  for  the  original  authority 
under  which  bills  of  exception  are  allowed  has  always  been 
considered  to  be  restricted  to  exceptions  taken  pending  the 
trial  and  ascertained  before  verdict. a 

Having  shown  when  a  bill  of  exceptions  should  be  taken, 
and  at  what  time  it  should  be  tendered,  it  remains  to  note 
what  the  bill  of  exceptions  should  contain. 

The  object  of  the  bill  of  exceptions  is  to  carry  up  to  the 


s  Walter  vs.  The  United  States,   9  Wheat.,  657;    Turuer  vs.  Yates,  10  How.,   29; 
Ex  parte,  Eroadstreet,  4  Pet.,  102;  Phelps  vs.  Mayer,  15  How.,  100. 


133 

appellate  tribunal  the  points  of  law  erroneously  ruled  by 
the  Court  below,  in  the  rejection  or  admission  of  testimony, 
and  in  the  instruction  to  the  jury,  for  it  is  to  errors  in  law 
alone  that  the  attention  of  the  appellate  tribunal  will  be 
directed,  it  will  not  determine  the  weight  or  effect  of 
evidence,  or  examine  into  it,  to  ascertain  what  facts  are 
established  by  it,  this  is  the  duty  of  the  subordinate  tri- 
bunal. It  is,  therefore,  improper  to  incorporate  into  the 
bill  of  exceptions  any  more  of  the  evidence  than  is 
necessary  to  present  the  legal  questions  raised  and  noted  at 
the  trial  ;a  and  in  like  manner  it  is  improper  to  place  on  the 
record  the  charge  of  the  Court  in  extenso,  only  so  much  of 
it  should  be  contained  in  the  bill  of  exception  as  embraces 
matter  of  law  complained  of  and  excepted  to  at  the  trial/' 

It  has  been  seen  that,  although  the  exceptions  must  be 
noted  at  the  trial  and  before  the  Jury  retire,  yet  that  the 
bill  of  exceptions  is  not  formally  settled  until  the  trial  is 
over.  When  formally  prepared  it  is  tendered  to  the  Judge, 
who  compares  it  with  the  exceptions  tendered  to  him  at  the 
trial  and  his  notes  of  the  case,  and  if  correct,  signs  and 
seals  the  bill  of  exceptions,  as  of  the  day  the  verdict  was 
rendered.  The  writ  of  error  is  then  drawn  out,0  and  upon 
the  security  required  by  the  Act  being  given,  and  approved 
by  the  Judge,  is  sealed  by  the  Clerk  of  the  Court  and 
allowed  by  the  Judge,  who  also  signs  it.  When  the  writ 
of  error  operates  as  a  supersedeas,  a  copy  for  the  adverse 
party  must  be  lodged 'in  the  Clerk's  office,  where  the  record 
remains,  within  ten  days  after  the  rendition  of  judgment. 
But  whether  the  writ  of  error  is  to  operate  as  a  supersedeas, 
or  not,  a  citation  must  in  every  case  be  issued  and  served. 
The  citation4  is  directed  to  the  adverse  party,  and  is  signed 
by  the   Judge  who    allows  the   writ   of  error,   and   bears 


a  Graham  vs.  Bayne,  18  How.,  60;  York  &  Cumberland  E.  R.  Co.  vs.  Meyers, 
18  How.,  251  ;  Pennock  vs.  Dialogue,  2  Pet.,  1  ;  Zeller  vs.  Eckert,  4  How.,  297. 

*  Zeller  vs.  Eckert,  4  How.,  297  ;  Evans  vs.  Evans,  7  Wheat.,  426  ;  Carver  vs.  Jack- 
>on,  4  Pet.,  1;  Ex  parte,  Crane,  5  Pet.,  195. 

c  See  form  in  Appendix. 

d  See  form  in  Appendix. 


134 

date  of  the  day  of  signature.  It  must  be  served  at  least 
thirty  days  before  the  return  term  of  the  writ.  The  service 
is  by  copy  personally  served  upon  the  adverse  party  or  his 
attorney.  The  service  upon  the  latter  is  valid  even  though 
he  has  retired  from  the  case  subsequent  to  the  rendition  of 
the  judgment.11  Proof  of  the  service  must  be  made  by 
affidavit  of  the  party  serving  it,  annexed  to  or  endorsed 
on  the  original  citation. 

The  writ  of  error,  the  bill  of  exceptions,  the  bond,  and 
the  original  citation,  with  proof  of  service  endorsed,  being 
deposited  with  the  Clerk  of  the  Circuit  Court,  that  officer 
makes  out  a  transcript  of  the  record,  and  of  all  the  pro- 
ceedings in  the  cause,  under  his  hand  and  the  seal  of  the 
Court,  and  the  record  must  be  a  complete  record,  contain- 
ing in  itself,  without  references  aliunde,  all  the  papers, 
exhibits,  depositions,  and  other  proceedings,  which  are 
necessary  to  the  hearing.1' 

The  transcript  of  the  record,  the  original  writ  of  error, 
the  original  citation  with  proof  of  service,  and  a  copy  of 
the  bond  to  the  defendant  in  error,  are  then  sent  to  the 
Clerk  of  the  Supreme  Court,  with  directions  to  file  the 
transcript  and  docket  the  cause.  At  the  same  time  there 
must  be  sent  to  the  Clerk  of  the  Supreme  Court  the  sum 
of  two  hundred  dollars,  or  a  bond  for  that  amount  with 
approved  sureties,  conditioned  to  satisfy  to  the  Clerk  of 
the  Supreme  Court  his  fecs.c 

The  docketing  of  causes  is  regulated  by  the  ninth  Rule 
of  the  Supreme  Court.d  The  appearance  of  defendant  in 
error,  the  call  of  the  docket,  the  briefs  and  abstracts  of 
points  and  authorities,  and  the  order  of  argument,  are  all 
regulated  by  the  rules  of  the  Supreme  Court,  which  will  be 
found  in  the  Appendix. 


a  United  States  vs.  Curry,  P>  How.,  110.  c  See  form  of  Bond  in  Appendix. 

b  Rule  8,  Supreme  Court.  d  See  Appendix. 


135 

DISCHARGE  OF  INSOLVENTS. 

We  have  seen  that  under  the  State  insolvent  laws  a  debtor 
in  execution  can  obtain  a  discharge,  by  which  not  only  is 
his  body  freed  from  arrest,  but  all  judgments  against  him 
and  all  claims  in  suit  are  completely  extinguished,  and  his 
future  acquisitions  not  liable  for  their  payment.  Xo  similar 
provision  exists  in  the  laws  of  the  United  States,  but  inas- 
much as  it  has  been  stated  in  a  previous  part  of  this  sketch 
that  the  Courts  of  the  United  States  administer  the  laws  of 
the  States  in  which  they  hold  their  sessions,  it  remains  to 
enquire  how  far  the  insolvent  laws  of  a  State  are  operative 
in  the  Courts  of  the  United  States,  either  as  a  plea  in  bar 
to  a  suit  instituted,  or  to  procure  the  discharge  of  a  defend- 
ant in  the  custody  of  the  Courts  of  the  United  States  under 
a  <■<*.  sa. 

There  are  few  questions  of  constitutional  law  which  have 
been  more  fully  and  ably  argued,  and  hardly  one  upon 
which  judicial  opinions  have  been  so  equally  divided.  A 
careful  and  thorough  examination  of  the  subject  would 
require  a  treatise.  All  that  can  be  attempted  consistently 
with  the  design  of  this  work,  is  a  statement  of  the  leading 
principles  decided,  and  a  reference  to  the  cases  in  which 
the  law  was  declared. 

The  question  was  for  the  first  time  brought  before  the 
Court  in  the  celebrated  case  of  Sturges  vs.  Crownmshield.3, 
It  was  an  action  in  the  Circuit  Court  of  the  United  States 
for  Massachusetts,  upon  two  promissory  notes,  made  by 
defendant  in  March,  1811,  payable  to  plaintiff.  The  defend- 
ant pleaded  his  discharge  under  the  insolvent  law  of  Xew 
York,  passed  in  April,  1811,  and  which  discharged  the 
debtor  from  all  liability  for  any  debt  contracted  previous  to 
his  discharge. 

The  eighth  section  of  the  first  article  of  the  Constitution 
of  the  United  States  provides  that  Congress  "  shall  have 
power"  to  '"establish  uniform  laws  on  the  subject  of  bank- 
ruptcies throughout  the  United  States."  The  first  question 
* ■ 

a  4  Wheaton,  122. 


136 

then  that  arose  in  the  ease  was  -whether  since  the  adoption  of 
the  Constitution  of  the  United  States  any  State  had  author- 
ity to  enact  a  bankrupt  law,  or  whether  the  power  was 
exclusively  vested  in  Congress.  In  the  argument  at  the  bar 
the  attempt  was  made  to  discriminate  between  what  were 
insolvent  laws  and  what  were  bankrupt  laws,  and  the  power 
of  the  State  to  enact  the  one  and  not  the  other  was  ear- 
nestly pressed.  In  delivering  the  opinion  of  the  Court, 
Chief  Justice  Marshall  admitted  the  difficulty  of  any  satis- 
factory discrimination  between  insolvent  laws  and  bankrupt 
laws,  and  declining  to  enter  into  the  delicate  inquiry  re- 
specting the  precise  limitations  which  the  several  grants  of 
power  to  Congress  in  the  Constitution  may  impose  upon  the 
States,  further  than  was  necessary  for  the  decision  of  the 
ease  before  the  Court,  held  that  until  the  power  to  pass 
uniform  laws  on  the  subject  of  bankruptcies  was  exercised 
by  Congress,  the  States  had  the  right  to  pass  a  bankrupt  law, 
provided  that  such  law  did  not  impair  the  obligation  of 
contracts  within  the  meaning  of  the  tenth  section  of  the 
eighteenth  article   of  the  Constitution  of  the  United  States. 

The  main  question  then  arose,  was  the  Act  of  Xew  York 
which  liberated  the  person  of  the  debtor  and  discharged  him 
from  all  liability  for  any  debt  previously  contracted,  on  his 
surrendering  his  property  in  the  manner  prescribed — a  law 
impairing  the  obligation  of  contracts. 

What  is  a  contract,  and  what  the  obligation  of  it,  and  the 
distinction  which  exists  between  matters  which  adhere  to 
the  obligation  and  those  which  merely  pertain  to  the  rem- 
edy to  enforce  the  obligation,  were  fully  and  elaborately 
argued  by  the  bar  and  discussed  by  the  Court.  The  opinion 
delivered  by  Chief  Justice  Marshall,  goes  to  the  full  extent 
of  declaring  such  insolvent  laws  to  be  laws  impairing  the 
obligation  of  contracts  ;  but  the  judgment  of  the  Court,  care- 
fully guarded  and  limited  in  its  terms,  went  simply  to  the 
point  that  the  particular  Act  pleaded  so  far  as  it  attempted 
to  discharge  the  contracts  on  which  the  suit  was  instituted, 
was  a  law  impairing  the  obligation  of  contracts,  and  the 
plea  of  a  discharge  under  it,  invalid.  It  was  a  decision  on 
the  particular  case,  and  not  a  rule  of  law,  which  was  de- 


137 

clared.  As  said  by  Mr.  Justice  Johnson,  subsequently  in 
the  case  of  Ogden  vs.  Sanders,  the  "judgment  partook  as 
much  of  a  compromise  as  of  a  legal  adjudication." 

In  Sturges  vs.  Crowninshield,  the  Act  was  passed  by  the 
State  of  New  York,  after  the  making  of  the  contract.  In 
the  next  case  which  arose,"  the  State  law  under  which  the 
discharge  was  obtained,  was  passed  before  the  contract  was 
made.  It  was  held,  however,  that  this  circumstance  "made 
no  difference  in  the  application  of  the  principle,"  and  the 
case  was  decided  in  conformity  to  the  ruling  in  Sturges  and 
Crowninshield. 

In  both  of  the  above  cases  the  discharge  under  the  State 
law  was  pleaded  in  bar  of  a  suit  brought  in  the  United  States 
Court,  where  of  course  the  litigation  was  between  citizens 
of  different  States ;  but  in  the  next  case  which  arose,1'  the 
question  was  between  citizens  of  the  State  of  Pennsylvania 
in  the  Courts  of  that  State,  and  under  a  law  of  the  State, 
passed  as  in  Sturges  &  Crowninshield,  after  the  contract  was 
made.  The  Supreme  Court  of  Pennsylvania  sustained  the 
law  of  the  State,  and  held  the  plea  of  discharge  under  it 
valid.  The  case  was  carried  by  writ  of  error  to  the  Su- 
preme Court  of  the  United  States.  That  Court  held  that 
the  case  was  not  distinguishable  from  the  cases  already 
decided,  except  by  the  circumstances  that  the  plaintiff  and 
defendant  were  citizens  of  the  same  State  at  the  time  the 
contract  was  made,  and  remained  such  at  the  time  the  suit 
was  instituted  in  its  Courts,  but  that  these  facts  made  no 
difference  ;  and  the  judgment  of  the  Supreme  Court  of 
Pennsylvania  was  reversed,  and  thereby  the  plea  of  dis- 
charge declared  invalid. 

After  the  decision  of  these  cases,  the  doctrine  rested,  until 
the  case  of  Ogden  vs.  Sanders.0  This  is  the  leading  case 
on  the  subject.  The  facts  of  it  are  as  follows  :  Jordan,  a 
citizen  of  Kentucky,  drew  bills  of  exchange  upon  Ogden, 
a  citizen  of  New  York,  in  favor  of  Sanders,  a  citizen  of 
Kentucky.     The  bills  were  accepted  by  Ogden,  who  sub- 

a  McMillan  vs.  McNeil,  4  Wheaton,  209. 

b  Farmers  &  Mechanics  Bank  of  Pennsylvania  vs.  Smith,  6  Wheaton,  131. 

0  12  Wheaton,  21-1. 


138 

sequently  failed,  and  procured  his  certificate  of  discharge 
under  the  insolvent  laws  of  New  York,  and  removed  to 
Louisiana.  Sanders  brought  liis  action  on  the  bills  in  the 
United  States  Court  for  the  District  of  Louisiana,  and 
Ogden  pleaded  his  discharge,  and  the  cause  came  by  writ 
of  error  to  the  Supreme  Court  of  the  United  States. 

From  a  mere  perusal  of  the  facts  it  would  appear  that 
the  case  was  undistinguishable  in  principle  from  those 
already  decided.  A  more  critical  examination  of  the  facts, 
and  comparison  with  the  cases  previously  decided,  will, 
however,  show  that  the  exact  case  made  was  never  before 
submitted  to  the  Court.  The  principles  governing  this 
class  of  cases  had  been  declared  by  the  Chief  Justice  in 
Sturges  vs.  Crowninshield,  but,  as  already  observed,  those 
principles  were  not  essential  to  the  decision  of  that  case, 
and  had  not  received  such  confirmation  from  time  or  subse- 
quent adoption  as  to  give  to  them  the  weight  of  settled  law. 
The  whole  field  was  open.  The  distinction  which  existed 
between  bankrupt  and  insolvent  laws,  the  exclusive  power 
of  Congress  to  pass  bankrupt  laws,  the  power  of  the  States 
to  enact  them  in  the  absence  of  any  uniform  Jaw  promul- 
gated by  Congress,  what  was  a  contract,  what  the  obliga- 
tion of  it,  what  pertained  to  the  contract,  and  what  to  the 
remedy,  and  the  various  modifications  and  incidents  of  the 
law  governing  contracts  arising  from  our  complex  condition 
of  sovereign  States  united  in  a  federative  Union,  were  all 
discussed,  defined,  criticised,  and  elaborated,  by  some  of 
the  ablest  lawyers  who  have  ever  graced  the  Supreme 
Court.  The  Court  itself  was  almost  equally  divided, 
Justices  Washington,  Johnson,  Thompson,  and  Trimble, 
composing  the  majority,  while  Chief  Justice  Marshall,  and 
Justices  Story,  and  Duvall,  composed  the  minority. 

To  show  the  difference  between  the  case  of  Ogden  and 
Sanders,  and  the  cases  previously  decided,  it  is  necessary 
briefly  to  state  the  facts  of  each. 

In  Sturges  vs.  Crowninshield,  and  in  Farmers  and 
Mechanics  Bank  vs.  Smith,  the  Act  was  passed  after  the 
contract  sued  on  was  made.  In  McMillan  vs.  McNeil,  the 
Act  of  Louisiana,  under  which  the  discharge  was  had,  was 


139 

passed  before  the  contract  was  made.  But  at  the  time  the 
contract  was  made,  neither  plaintiff  nor  defendant  were 
citizens  of  Louisiana,  and,  therefore,  the  law  of  Louisiana 
neither  governed  the  contract  nor  the  parties  to  it. 

In  the  case  of  Ogden  vs.  Sanders,  the  contract  (the 
acceptance)  was  made  in  !N"ew  York,  between  a  citizen  of 
ISTew  York  and  a  citizen  of  another  State,  and  the  discharge 
was  under  a  law  of  New  York,  in  force  at  the  time  the 
contract  was  made. 

The  decision  was,  that  the  insolvent  or  bankrupt  law  of 
a  State  discharging  the  person  and  future  acquisitions  of  a 
debtor,  is  not  a  law  impairing  the  obligation  of  contracts, 
so  far  as  it  respects  contracts  made  subsequent  to  the  passage 
of  the  law;  and  a  certificate  of  discharge  under  it  is  valid  in 
cases  where  the  contract  was  made  between  parties,  citizens 
of  the  State  under  whose  law  the  discharge  was  obtained,  and 
in  whose  Courts  the  certificate  is  pleaded.  But  a  certificate 
of  discharge  under  a  State  insolvent  or  bankrupt  law  is 
invalid  and  cannot  be  pleaded  in  bar  of  an  action  brought 
by  a  citizen  of  another  State  in  the  Courts  of  the  United 
States. 

The  reasoning  which  supports  this  latter  clause  is,  that 
the  insolvent  law  of  a  State  operating  upon  future  con- 
tracts being  constitutional,  it  is  within  the  legislative  power 
of  the  State  to  enact  it^  but  that  a  State  can  legislate  only 
over  its  own  citizens  and  territory,  and  can,  therefore,  only 
grant  a  valid  discharge  as  between  its  own  citizens  and  in 
its  own  Courts,  and  could  not  effect  by  its  legislation  the 
citizens  of  other  States. 

"  The  provision  in  the  Constitution,"  says  Justice  John- 
son, "  which  gives  the  power  to  the  general  government  to 
establish  tribunals  of  its  own  in  every  State,  in  order  that 
the  citizens  of  other  States  or  sovereignties  might  therein 
prosecute  their  rights  under  the  jurisdiction  of  the  United 
States,  had  for  its  object  an  harmonious  distribution  of 
justice  throughout  the  Union;  to  confine  the  States,  in 
the  exercise  of  their  judicial  sovereignty,  to  cases  between 
their  own  citizens ;  to  prevent,  in  fact,  the  exercise  of  that 
very  power  over  the  rights  of  citizens  of  other  States,  which 


140 

the  origin  of  the  contract  might  he  supposed  to  give  to 
each  State."  The  citizens  of  other  States  are  thus  exempted 
from  the  jurisdiction  of  the  State  tribunal,  they  cannot  he 
forced  into  it  or  made  amenable  to  laws  enacted  for  its 
guidance  by  an  authority  to  which  they  owe  no  allegiance. 

"No  one,"  says  Mr.  Justice  Johnson  (in  the  same  opinion, 
page  367)  has  ever  imagined  that  a  prisoner  in  confinement 
under  process  from  the  Courts  of  the  United  States  could 
avail  himself  of  the  insolvent  laws  of  the  State  in  which 
the  Court  sits.  And  the  reason  is,  that  those  laws  are 
municipal  and  peculiar,  and  appertaining  exclusively  to 
the  exercise  of  State  power  in  that  sphere  in  which  it  is 
sovereign,  that  is,  between  its  own  citizens,  between  suitors 
subjected  to  State  power  exclusively,  in  their  controversies 
between  themselves. 

"  I,  therefore,  consider  the  discharge,  under  a  State  law, 
as  incompetent  to  discharge  a  debt  due  a  citizen  of  another 
State,  and  it  follows  that  the  plea  of  a  discharge  here  set  up 
is  insufficient  to  bar  the  rights  of  the  plaintiff." 

The  same  ruling  was  made  in  the  case  of  Boyle  vs. 
Zacharie  &  Turner,11  in  which  it  was  said  by  the  Chief 
Justice,  that  "  the  principles  established  in  the  opinion  of 
Mr.  Justice  Johnson,  in  the  case  of  Ogden  and  Sanders, 
are  to  be  considered  no  longer  open  for  controversy,  but 
the  settled  law  of  the  Court."  And  to  the  same  point  is  the 
case  of  Cook  vs.  Moffatt.". 

In  all  of  the  above  cases  the  action  was  instituted  in  the 
Courts  of  the  United  States,  where,  of  course,  the  parties 
litigant  were  citizens  of  different  States,  and  the  discharge 
under  the  insolvent  laws  of  a  State  invalid.  If,  however, 
the  plaintiff,  instead  of  litigating  his  rights  in  the  Courts 
of  the  United  States,  goes  voluntarily  into  the  Courts  of 
the  State,  under  whose  law  the  insolvent  is  discharged,  he 
is  bound  by  the  discharge  to  the  same  extent  as  the  citizens 
of  the  State  are  bound.0 

From  this  review  of  the  cases,  it  will  be  perceived  that, 

a  6  Pet.,  348  ;   S.  C,  6  Peters,  641. 

b  5  Howard,  :507. 

c  Ogdeu  vs.  Sanders,  12  Wheaton,  364  ;  Clay  vs.  Smith,  3  Peters,  411. 


141 

while  some  of  the  principles  declared  in  the  cases  anterior 
to.Ogden  and  Sanders  have  been  overruled  or  modified, 
the  cases  themselves  have  not  been  overruled.  They  still 
subsist  as  law,  and,  together  with  the  case  of  Ogden  and 
Sanders,  constitute  one  system.  From  them,  I  think,  the 
following  eonclusions  may  be  deduced  : 

1st.  That  a  State  has  the  right  to  pass  a  bankrupt  or 
insolvent  law  in  the  absence  of  any  uniform  law  promul- 
gated by  Congress. 

2d.  That  the  insolvent  law  of  a  State  which  impairs  the 
obligation  of  an  existing  contract,  is  unconstitutional  and 
invalid. 

3d.  That  the  insolvent  law  of  a  State  which  discharges 
the  person  and  future  acquisitions  of  a  debtor,  is  not  a  law 
impairing  the  obligation  of  contracts  entered  into  after  the 
passage  of  the  Act,  and  is  not  unconstitutional;  but  it  is 
binding  only  on  its  own  citizens,  and  valid  only  in  its  own 
Courts. 

4th.  That  a  State  insolvent  law,  although  constitutional 
and  binding  on  the  citizens  and  Courts  of  the  State  enact- 
ing it,  does  not  affect  creditors  or  citizens  of  another  State, 
and  a  certificate  of  discharge  under  it  is  not  valid  as  a  plea 
in  bar,  in  the  Courts  of  the  United  States,  or  the  Courts  of 
another  State. 

5th.  That  if  a  citizen  of  another  State  voluntarily  sub- 
mits himself  to  the  Courts  of  a  State,  he  is  bound  by  the 
insolvent  laws  of  that  State  to  the  same  extent  that  a  citizen 
of  the  State  would  be. 

While,  however,  the  Courts  of  the  United  States  do  not 
allow  the  discharge  of  an  insolvent  under  the  laws  of  a 
State  to  have  any  operative  effect  against  proceedings  in 
the  Courts  of  the  United  States,  the  law.-  of  the  United 
States  have  provided  for  the  discharge  ol  i  debtor  from 
imprisonment  under  the  ca.  sa.,  leaving,  however,  the  lien  of 
the^.  fa.  unimpaired. 

The  authority  to  the  Courts  of  the  United  States  to  grant 
a  discharge  from  imprisonment,  is  by  virtue  of  the  Act  of 
1800,  (2  Stat,,  4,)  the  first  section  of  the  Act  of  1839,  (5 


142 

Stat.,  321,)  and  the  first  section  of  the  Act  of  1841,  (5  Stat., 
410.) 

These  Acts  comprise  all  the  direct  legislation  of  Congress 
upon  the  subject,  and  while  they  clearly  authorize  the  dis- 
charge, and  declare  the  effect  of  it,  they  leave  the  mode 
of  obtaining  the  discharge  a  matter  of  some  uncertainty. 
This  is  especially  the  case  in  this  district.  The  applications 
for  discharge  have  been  rare,  but  few  points  have  been 
presented  for  judicial  construction,  and  nearly  the  whole 
practice  governing  the  class  of  eases  has  yet  to  be  moulded 
into  form  by  the  Court. 

The  first  section  of  the  Act  of  1800  gives  to  the  debtor 
iu  execution  the  benefit  of  the  jail  limits  to  the  same  extent 


Section  1.  An  Act/or  the  relief  <■/  j>rr*nn><  imprisoned  for  Debt. — Be  it  enacted  by 
the  Senate  and  Houseof  Representatives  oj  tin  United  States  <>f  America,  in  Congress 
assembled,  That  persons  imprisoned  on  process  issuing  from  any  Court  of  the  United 
States,  as  well  at  the  suit  of  the  United  States  as  at  the  suit  of  any  person  or  per- 
sons in  civil  actions,  shall  he  entitled  to  like  privileges  of  the  yards  or  limits  of  the 
respective  gaols,  as  persons  confined  in  like  case*  on  process  from  the  Courts  of  the 
respective  States,  are  entitled  to,  and  under  the  like  regulations  and  restrictions. 

Section  2.  And  be  it  further  enacted,  That  any  person  imprisoned  on  process  of 
execution  issuing  from  any  Court  of  the  United  States  in  civil  actions,  except  at  the 
suit  of  the  United  States,  may  have  the  oath  or  affirmation  hereinafter  expressed, 
administered  to  him  by  the  Judge  of  the  District  Court  of  the  United  States,  within 
whose  jurisdiction  the  debtor  may  be  confined ;  and  in  case  there  shall  be  no  district 
Judge  residing  within  twenty  miles  of  the  gaol  wherein  such  debtor  may  be  confined, 
such  oath  or  affirmation  may  be  administered  by  any  two  persons  who  may  be  com- 
missioned for  that  purpose  by  the  district  Judge.  The  creditor,  his  agent  or  attor- 
ney, if  either  live  within  one  hundred  miles  of  the  place  of  imprisonment,  or  within 
the  district  in  which  the  judgment  was  rendered,  having  had  at  least  thirty  days 
previous  notice  by  a  citation  served  on  him,  issued  by  the  district  Judge,  to  appear  at 
the  time  and  place  therein  mentioned,  if  he  see  fit  to  show  cause  why  the  said  oath 
or  affirmation  should  not  be  so  administered  :  at  which  time  and  place,  if  no  suffi- 
cient cause,  in  the  opinion  of  the  Judge,  (or  the  commissioners  appointed  as  afore- 
said,) be  shown,  or  doth  from  examination  appear  to  the  contrary,  he  or  they  may,  at 
the  request  of  the  debtor,  proceed  to  administer  to  him  the  following  oath  or  affirm- 
ation, as  the  case  may  be,  viz:  "You  soleninl}'  (swear  or  affirm) 
that  you  have  no  estate,  real  or  personal,  in  possession,  reversion  or  remainder,  to  the 
amount  or  value  of  thirty  dollars,  other  than  necessary  wearing  apparel:  and  that 
you  have  not,  directly  or  indirectly,  given,  sold,  leased,  or  otherwise  conveyed  to,  or 
intrusted  any  person  or  persons  with  all  or  any  part  of  the  estate,  real  or  personal, 
whereof  you  have  been  the  lawfnl  owner  or  possessor,  with  any  intent  to  secure  the 
same,  or  to  receive  or  expect  any  profit  or  advantage  therefrom,  or  to  defraud  your 
creditors,  or  have  caused  or  suffered  to  be  done  any  thing  else  whatsoever,  whereby 
any  of  your  creditors  may  be  defrauded."  Which  oath  or  affirmation  being  admin- 
istered, the  Judge  or  commissioners  shall  certify  the  same  under  his  or  their  hands 


143 

as  is  allowed  to  persons  confined  under  process  from  the 
State  Court,  but  it  was  declared  by  the  Supreme  Court,  in 
the  case  of  the  United  States  vs.  Knight,8  that  the  right  of 
a  debtor  to  the  benefit  of  the  jail  limits  did  not  rest  upon 
the  Act  of  1800,  but  upon  the  third  section  of  the  Act  of 
1828,  and  that  the  jail  limits,  to  which  a  defendant  in 
execution  was  entitled,  were  those  fixed  by  the  laws  of  the 
several  States  at  the  date  of  that  Act,  which,  in  this  State, 
were  three  hundred  and  fifty  yards  in  every  direction  from 
the  prison  walls. b  The  subsequent  legislation  of  the  State, 
extending  the  jail  limits  to  the  judicial  district,  have  never 
been  adopted  by  any  Act  of  Congress  or  rule  of  Court, 
and,  therefore,  do  not  apply  to  defendants  in  execution,  on 


to  the  prison-keeper,  and  the  debtor  shall  be  discharged  from  his  imprisonment  on 
such  judgment,  and  shall  not  be  liable  to  be  imprisoned  again  for  the  said  debt,  but 
the  judgment  shall  remain  good  and  sufficient  in  law,  and  may  be  satisfied  out  of  any 
estate  which  may  then,  or  at  any  time  afterwards,  belong  to  the  debtor.  And  the 
Judge  or  commissioners,  in  addition  to  the  certificate  by  them  made  and  delivered  to 
the  prison-keeper,  shall  make  return  of  their  doings  to  the  district  Court,  with  the 
commission,  in  cases  where  a  commission  hath  been  issued,  to  be  kept  upon  the  files 
and  record  of  the  same  Court.  And  the  said  Judge,  or  commissioners,  may  send  for 
books  and  papers,  and  have  the  same  authority  as  a  Court  of  record,  to  compel  the 
appearance  of  witnesses,  and  administer  to  them,  as  well  as  to  the  debtor,  the  oaths 
or  affirmations  necessary  for  the  inquiry  into,  and  discovery  of  the  true  state  of  the 
debtor's  property,  transactions  and  affairs. 

Section  :s.  And  be  it  further  enacted,  That  when  the  examination  and  proceed- 
ings aforesaid,  in  the  opinion  of  the  said  Judge  or  commissioners,  cannot  lie  had 
with  safety  or  convenience  in  the  prison  wherein  the  debtor  is  confined,  it  shall  be 
lawful  for  him  or  them,  by  warrant  under  his  or  their  hand  and  seals,  to  order  the 
marshal  or  prison-keeper,  to  remove  the  debtor  to  such  other  place  convenient  and 
near  to  the  prison  as  he  or  they  may  see  fit;  and  to  remand  the  debtor  to  the  same 
prison,  if  upon  examination  or  cause  shown  by  the  creditor,  it  shall  appear  that  the 
debtor  ought  not  to  be  admitted  to  take  the  above  recited  oath  or  affirmation,  or  that 
he  is  holden  for  any  other  cause. 

Section  4.  And  be  it  further  enacted,  That  if  any  person  shall  falsely  take  any 
oath  or  affirmation,  authorized  by  this  Act,  such  person  shall  be  deemed  guilty  of 
perjury,  and  upon  conviction  thereof,  shall  suffer  the  pains  and  penalties  in  that  case 
provided.  And  in  case  any  false  oath  or  affirmation  be  so  taken  by  the  debtor,  the 
Court,  upon  the  motion  of  the  creditor,  shall  recommit  the  debtor  to  the  prison  from 
whence  he  was  liberated,  there  to  be  detained  for  the  said  debt,  in  the  same  manner 
as  if  such  oath  or  affirmation  had  not  been  taken. 

Section  5.  And  be  it  further  enacted,  That  any  person  imprisoned  upon  process 
issuing  from  any  Court  of  the  United  States,  except  at  the  suit  of  the  United  States 
in  any  civil  action,  against  whom  judgment  has  been  or  shall  be  recovered,  shall  be 


a  14  Pftcrs,  316.  b  State  Act,  1788,  5  Statutes,  7S. 


144 

process  issuing  from  the  Courts  of  the  United  States,  for, 
as  we  have  frequently  had  occasion  to  see  in  the  course  of 
this  sketch,  State  laws  propria  vigore  cannot  control  the  pro- 
ceeding's in  the  Courts  of  the  United  States. 

The  benefit  of  the  jail  limits  are  obtained  in  the  same 
manner  as  in  the  State  Court,  by  giving  bond  to  the 
Marshal  not  to  transgress  the  limits,  and  it  is  presumed  that 
the  same  distinction  which  exists  in  the  State  Court  between 
arrest  on  mesne  process  and  arrest  on  final  process  would 
be  ol (served  in  the  Courts  of  the  United  States,  and  a  debtor 
on  mesne  process  he,  in  like  manner,  allowed  the  benefits 
of  the  jail  limits.  Such  seems  to  he  the  fair  construction 
of  the  Act  of  1839,  which  adopts  the  same  "-restrictions 
and  conditions"  upon  imprisonment  for  debt  as  are  pro- 
vided by  the  State  laws;  but  the  point  has  never  been  ruled 
by  the  Court  in  this  district. 

The  benefit  of  the  jail  limits  being  obtained,  the  next 
step  is  to  obtain  the  discharge.     And  the  debtor  applying 

entitled  to  the  privileges  and  relief  provided  by  this  Act,  after  the  expiration  of  thirty 
days  from  the  time  such  judgment  has  been  or  shall  be  recovered,  though  the  cred- 
itor should  not,  within  that  time,  sue  out  his  execution,  and  charge  the  debtor  there- 
with. 

Approved,  January  6,  1800. 

An  Act  to  abolish  Imprisonment  for  licit  in  certain  cases. — Tie  it  enacted  by  the 
Senate  and  House  of  Representatives  of  tin  United  States  of  America  in  Congress 
asst  milled,  That  no  person  shall  be  imprisoned  for  debt  in  any  State,  on  process  issu- 
ing out  of  a  Court  of  the  United  States,  where  by  the  laws  of  such  State,  imprison- 
ment for  debt  has  been  abolished;  and  where  by  the  laws  of  a  State,  imprisonment 
for  debt  shall  be  nllowed,  under  certain  conditions  and  restrictions,  the  same  con- 
ditions and  restrictions  shall  be  applicable  to  the  process  issuing  out  of  the  Courts 
of  the  United  States;  and  the  same  proceedings  shall  be  had  therein,  as  are  adopted 
in  the  Courts  of  such  State. 

Approved,  February  28,  1839. 

.l/i  Act  supplementary  to  an  Act  to  abolish  Imprisonment  for  Debt  in  certain  cones — 
l',c  it  enacted  by  the  Senate  mul  Bouse  of  Representatives  <>f  the  United  States  of 
Am  rirn  in  Congress  assembled,  That  the  Act  entitled  "An  Act  to  abolish  imprison- 
ment for  debt  in  certain  cases,  approved  February  twenty-eighth,  eighteen  hundred 
and  thirty-nine,  shall  be  so  construed  as  to  abolish  imprisonment  for  debt,  on  pro- 
cess issuing  out  of  any  Court  of  the  United  States,  in  all  cases  whatever,  where,  by 
the  laws  of  the  State  in  which  the  said  Court  shall  be  held,  imprisonment  for  debt 
has  been,  or  shall  hereafter  be,  abolished. 

Approved,  January  14,  1841. 


145 

for  his  discharge  may  claim  it  under  the  ten  day  or  ninety 
Act,  in  the  same  manner  as  he  could  were  the  application 
pending  in  the  State  Court.  Under  whatever  Act  the  dis- 
charge may  he  obtained,  it,  of  course,  only  extends  to  the 
release  of  the  person  of  the  debtor.  The  Act  of  1800,  to 
a  certain  extent,  regulates  the  proceeding,  but  it  has  been 
ruled  by  the  Supreme  Court  that  the  Act  of  1800  does  not 
alone  regulate  the  practice.  The  third  section  of  the  Act 
of  1828  provides,  that  "writs  of  execution  and  other  final 
process,  and  the  proceedings  thereupon,  shall  be  the  same  as 
are  now  used  in  the  Courts  of  such  State."  These  words, 
"proceedings  thereupon,"  have  been  held  by  the  Supreme 
Court8,  to  "  include  all  the  laws  which  regulate  the  rights, 
duties,  and  conduct  of  officers  in  the  service  of  such  pro- 
cess, according  to  its  exigency,  upon  the  person  or  prop- 
erty of  the  execution  debtor,  and,  also,  all  the  exemptions 
from  arrest  or  imprisonment  under  such  process  created  by 
those  laws;"  or,  as  subsequently  said,b  they  "include  all 
the  regulations  and  steps  incident  to  the  process,  from  its 
commencement  to  its  termination,  as  prescribed  by  the 
State  laws,  so  far  as  they  can  be  made  to  apply  to  the 
federal  Courts."0 

By  the  Act  of  1828,  section  3,  and  the  decisions  constru- 
ing it,  the  State  laws  of  the  several  States  in  force  at  the 
passage  of  the  Act,  have  been  adopted  by  it  as  incident  to 
the  remedy,  and  as  governing  the  proceedings.  They  are 
cumulative,  and  in  addition  to  the  Act  of  Congress  of  1800, 
both  being  in  force.d 

But  while  it  is  said  that  the  proceedings  upon  final  pro- 
cess in  the  Courts  of  the  United  States  are  to  be  the  same 
as  existed  in  the  State  Courts  at  the  passage  of  the  Act  of 
1828,  and  that  the  exemptions  from  arrest  or  imprisonment 
under  the  State  laws  then  in  force,  apply  equally  to  defend- 


a  Beers  vs.  Houghton,  9  Peters,  362. 

b  Duncan  vs.  Dart,  1  How.,  304. 

c  See  also  U.  S.  vs.  Knight,  14  Peters,  301 ;  Amis  vs.  Smith,  16  Peters,  312. 

d  Duncan  vs.  Dart,  ]  How.,  310. 

10 


146 

ants  in  the  United  States  Courts,  it  must  be  borne  in  mind 
that  these  State  laws  do  no  more  than  furnish  a  rule  of 
practice  to  the  United  States  Courts,  and  can  by  no  means 
make  the  result  of  proceedings  under  them  binding  on  the 
Courts  of  the  United  States.  This  question  was  presented 
to  the  Circuit  Court  lor  this  district  in  the  case  of  Hunt  vs. 
Cohen  &  Cohen.  The  defendants  had  been  arrested  under 
ca.  so.  issuing  from  the  State  Court,  and  had  been  discharged 
under  the  State  law.  The  effect  of  the  discharge  according 
the  State  Act  of  1750,  is  to  exempt  the  debtor  from  suit  for 
twelve  months  after  the  discharge.  Before  the  twelve 
months  had  expired,  the  defendants  were  arrested  under  ca. 
sa.  issuing  from  the  Courts  of  the  United  States.  The  de- 
fendants moved  that  the  arrest  by  the  Marshal  be  set  aside, 
contending  that  as  the  Act  of  1828  adopted  the  proceedings 
in  the  State  Courts,  and  the  exemptions  from  imprisonment 
and  arrest  allowed  by  the  State  laws,  they  were  equally 
exempt  from  arrest  in  the  United  States  Court.  But  after 
an  elaborate  review  of  the  cases,  Magrath,  J.,  delivering  the 
opinion  of  the  Court,  said:  "The  proposition  is  specious 
but  unsound.  The  Act  of  1828  only  says  that  as  in  the 
Courts  of  the  State  a  discharge  shall  protect  from  its  pro- 
cess the  person  relieved,  so  in  the  United  States  Courts  a 
discharge  by  it  according  to  the  laws  of  the  State,  shall  pro- 
tect from  its  process,  the  person  discharged  b}'  its  order. 
Beers  vs.  Haughton,a  has  decided  that  the  Court  may  by  a 
rule  adopt  the  result  of  the  action  of  a  State  Court,  and  if 
the  Court  can  do  so  by  a  rule,  Congress  can  do  so  by  an 
Act.  But  no  such  rule  is  in  this  Court,  and  no  such  Act  of 
Congress  has  been  passed,  and  without  them  the  Actb  must 
be  taken  to  mean,  that  the  same  proceedings  are  to  be  taken 
so  far  as  they  can  be,  and  the  same  discharge  granted,  so  far 
as  it  can  be ;  but  these  proceedings  and  that  discharge  are 
to  take  place  and  be  given  in  the  Courts  of  the  United 
States,  and  relate  only  to  its  own  proceedings  and  those 
affected   by  them.     The  Courts    of  the   State  and    of  the 

»  9  Peters,  359.  b  Of  1828. 


147 

United  States  are  independent  of  each  other,  neither  can 
control  the  other,  and  in  the  recognition  of  their  mutual 
independence  is  to  be  found  one  of  the  chief  elements  of 
the  good  which  they  were  formed  to  produce,  and  I  now 
hold  that  although  the  form  of  process  and  modes  of  pro- 
ceeding are  the  same,  yet  the  jurisdiction  from  which  they 
issue,  by  which  they  are  ordered,  and  for  the  satisfaction  of 
the  judgments  of  which  they  are  directed,  is  essentially 
separate  and  distinct.  In  the  true  and  just  exercise  of  the 
powers  with  which  they  are  each  clothed,  the  lines  in  which 
they  move  are  parallel  and  never  meet."  The  defendants 
were  accordingly  ordered  to  institute  proceedings  in  the 
United  States  Courts  if  they  desired  to  obtain  a  discharge 
from  the  arrest  under  the  ca.  sa.  issuing  from  the  United 
States  Court. 

The  practice  regulating  the  proceedings  to  obtain  the  dis- 
charge is  the  same  as  in  the  State  Court,  and  all  the  modes 
of  exception  or  defense  furnished  by  the  State  law  to  the 
creditor  or  debtor,  can  be  used  to  the  same  extent  and  in 
like  manner  in  the  Courts  of  the  United  States  as  in  the 
State  Court. 


APPENDIX. 


Below  will  be  found  a  few  forms  showing  the  tra^txi;  (  on 
mode  of  stating  the  cause  of  action  in  the  writ. 

To  answer  to  (plaintiff)  in  a  plea  of  trespass  on  A!-Mm|pMt 
the  case,  &c,  as  also  for  certain  promises  and  as- 
sumptions by  the  said  {defendant)  to  the  said  {plain- 
tiff) made  and  not  performed  to  the  damage  of  the 
said  (plaintiff)  one  thousand  dollars.11  rcfn^Bond 

To  answer  to  {plaintiff)  in  a  plea  that  he  render 

to  him  the  said  (plaintiff)  the  sum  of b  dollars, 

which  to  him  he  owes,  and  from  him  unjustly 
detains  to  his  damage  ten  cents. 

To  answer  to  (plaintiff')  who  hath  survived  one     Same  bj 

\i  ..</  /  surviving 

A  B,  deceased  in  a  plea,  &c.  obligee. 

To  answer  to  (plaintiff)  assignee  of Sheriff  gSEd^j! 

of  Charleston  district,  according  to  the  form  and 
effect  of  the  statute  in  such  case,  made  and  pro- 
vided in  a  plea,  that,  &c. 

To  answer  to  (plaintiff)  in  a  plea,  that  he  render 
to  him  the  sum  of  five  hundred  dollars,0  which  to 
him  he  owes,  and  from  him  unjustly  detains  to  his 
damage  one  thousand  dollars.11 

a  The  damages  should  be  laid  at  double  the  sum  due. 

b  The  penalty  of  the  bond. 

c  The  face  of  the  note. 

d  When  the  debt  is  secured  by  a  penalty,  as  in  the  case  of  bonds,  the 
damages  laid  arc  nominal ;  but  when  the  action  is  for  the  specific  debt, 
the  damages  should  be  laid  at  a  sum  sufficient  to  cover  interest;  and  it 
is  usual  to  lay  them  at  double  the  debt,  as  in  assumpsit.  See  Chitty's 
Pleading,  1,  page  108,  title,  Debt. 


signee. 
Of  Sherifl 


Debt  on 
sealed  note 


merit. 


150 

On  judg-  To  answer  to  (plaintiff)  assignee  of  Samuel  Brass, 
in  a  plea  of  debt,  that  he  render  to  him  the  sum  of 
five  hundred  dollars,  which  the  said  Samuel  Brass, 
in  tlie  year  of  our  Lord,  1855,  by  the  consideration 
and  judgment  of  the  Court  of  Common  Pleas  of 
said  State  at  Charleston,  for  the  district  of  Charles- 
ton, recovered  against  the  said  (defendant),  and  after- 
wards assigned  to  the  said  (plaintiff),  which  said 
sum  the  said  (defendant),  to  him  the  said  (plaintiff) 
owes,  and  from  him  unjustly  detains  to  his  damage 
one  thousand  dollars. 

covenant.  To  answer  to  (plaintiff)  in  a  plea  that  he  perform 
to  him,  the  said  (plaintiff),  the  covenant  between 
them,  made  according  to  the  form,  force  and  effect 
of  a  certain  indenture  of  release  to  the  said  (plain- 
tiff), by  the  said  (defendant)  made,  and  which  the 
said  (defendant)  hath  lately  broken,  to  the  damage 
of  the  said  (plaintiff)  one  thousand  dollars. 

Detinue.  To  answer  to  (plaintiff'),  in  a  plea  that  he  render 

to  him  (here  insert  chattels  for  which  action  is  brought), 

being  of  the  value  of dollars,  which  from  him 

he  unjustly  detains. 

f.xd-ucto  To  answer  to  (plaintiff)  in  a  plea  of  trespass  on 
the  case,  &c,  to  the  damage  of  the  said  (plaintiff) 
one  thousand  dollars. 

slander.  To  answer  to  (plaintiff)  in  a  plea  of  trespass,  on 

the  case,  &c,  and  also  for  certain  false,  malicious 
and  defamatory  words  spoken  by  the  said  (defend- 
ant) of  and  concerning  the  said  (plaintiff),  to  his 
damage  one  thousand  dollars. 

Libei.  T°  answer  to  (plaintiff)  in  a  plea  of  publishing 

of  and  concerning  the  said'  (plaintiff)  a  certain  false, 
scandalous  and  defamatory  libel  to  the  damage  of 
the  said  (plaintiff)  one  thousand  dollars. 

To  answer  to  (plaintiff)  in  a  plea,  wherefore  with 
force  and  arms,  he,  the  said  (defendant),  at  Charles- 
ton, in  the  district  of  Charleston  and  State  afore- 
said, upon  the  said  (plaintiff')  did  make  an  assault, 


151 

and  him,  the  said  (plaintiff),  did  wound  and  ill-  ^'e'pCTson 
trout,   and  other  wrongs  and   enormities   to   him, 
then  and  there  did  against  the  peace  and  dignity 
of  the  State  aforesaid,  and  to  the  damage  of  the 
said  (plaintiff)  one  thousand  dollars. 

Upon  a  certain  slave  named  Joe,  the  property  of  '^'"1ee.on 
the  (  plaintiff),  and  so  on  as  above,  laying  the  damages 
to  the  ( plaintiff.) 

Wherefore,  with  force  and  arms,  he,  the  said  penalty. 
(defendant),  (state  cause  of  action  according  to  tic  cir- 
cumstances), and  severely  injured,  bruised,  damaged 
and  destroyed  the  said  (chattels,  specifying  them),  the 
property  of  the  said  (plaintiff)  as  aforesaid,  to  his 
damage  one  thousand  dollars. 

To  answer  to   (plaintiff)   in   a  plea  of  trespass,  f^ty.t0 
wherefore,  with  force  and  arms,  the  said  (defendant) 
broke  and  entered  the  close  of  the  said  (plaintiff), 

in  parish,  in   the  district  of and  State 

aforesaid,  and  the  fences  in  said  close  did  pull  and 
break  down,  and  did  break,  cut  down,  dig  up,  and 
destroy  the  timber,  trees,  grass  and  earth  of  him, 
the  said  (plaintiff),  within  the  said  close  then  grow- 
ing and  being  and  of  great  value,  and  other  wrongs 
and  enormities  then  and  there  did  against  the  peace 
and  dignity  of  said  State,  and  to  the  damage  of  the 
said  (plaintiff)  one  thousand  dollars. 

By  the  Act  of  1791,  5  Stat.,  170,  the  action  of  g^gf  *° 
ejectment  is  abolished,  and  "the  method  of  trying 
the  title  to  land  or  tenements  "  ordered  to  be  by 
trespass.  The  writ  is  the  ordinary  writ  above 
given,  of  trespass  quare  clausum  fregil,  the  plaintiff 
or  his  attorney  endorsing  on  the  original  and  copy 
writ,  a  notice  that  the  action  is  brought  to  try  the 
title,  as  well  as  for  damages.  See  Act  of  1791,  7 
Stat.,  270. 

To  answer  to  (plaintiff)  in  a  plea  of  trespass  on  Trover- 
the  case,  &c,  and  also  for  the  disposing  and  convert- 
ing to  his  own  use,  of  a  certain  negro  slave,  named 


152 

Thomas,  of  the  proper  goods  and  chattels  of  the 
said  (plaintiff),  to  the  damage  of  the  said  (plaintiff) 
one  thousand  dollars. 
If  the  writ  is 
Byoragainst  To  "  summon  "  or  "  to  answer  to  "  A  B,  executor 

an  executor. 

of  the  last  will  and  testament  of  N  M,  deceased. 
Byoragainst  To  "  summon  "  or  "  to  answer  to  "  A  B,  adminis- 

Auniinistra- 

tor-  trator  of  all  and  singular  the  goods  and  chattels, 

rights  and  credits,  which  were  of  !N"  M,  deceased, 
at  the  time  of  his  death,  who  died  intestate. 

Byoragainst  To  "  summon  "  or  " to  answer  to  "  AB,  adminis- 

admims  tra- 
tor, de  bonis  trator  of  all  and  singular  the  goods  and  chattels, 

rights  and  credits,  which  belonged  to  G  W,  de- 
ceased, at  the  time  of  his  death,  who  died  intestate, 
unadministered  by  E  F,  also  deceased,  late  admin- 
istrator of  the  said  G  W. 

By  infant,    To  an swer  to  A  B,  an  infant,  who  sues  this  action 

per 

guaniian.    ],y  q  j)?  his  guardian,  duly  appointed  in  a  plea,  &c. 
By  surviv-   To  answer  to  P  G  &  T  M,  who  have  survived  one  G 

ing  copart- 
ners. \y  m  i\ie  lifetime  of  the  said  G  W,  copartners  in 

trade  under  the  name  and  firm  of  P  G  &  Company 

in  a  plea,  &c. 

The  declaration  and  pleadings  must  of  course  vary  accord- 
ing to  the  cause  of  action,  and  the  proper  precedents  will 
be  found  in  the  works  on  pleading. 

Printed  forms  of  the  judgments  in  general  use  are  in  the 
hands  of  every  lawyer,  and  nothing  need  be  said  as  to  the 
proper  mode  of  filling  them  up. 

The  executions  both  of  fi.fa.  and  ca.  sa.  require  no  expla- 
nation as  to  the  proper  mode  of  filling  them  up,  except  in 
the  single  instance  of  fi.  fa.  vs.  Executor  or  Administrator, 
who  is  liable  de  bonis  propriis,  the  form  of  which  is  as 
follows : 


153 


The  State  of  South  Carolina  : 

To  all  and  singular  the  Sheriffs  of  the  said  State — Greeting. 

You,  and  each  of  you,  are  hereby  commanded, 
without  delay,  that  of  the  goods,  chattels,  houses  and  lands, 
and  other  hereditaments  and  real  estates  which  were  of  CD, 
at  the  time  of  his  death,  in  the  hands  of  G  W,  executor  of 
the  last  will  and  testament  of  C  D,  deceased, 
you  cause  to  he  levied  a  certain  debt  of 

which 

in  the  Court  of  Common  Pleas,  before  the  Justices  of  the 
said  Court,  at  lately  recovered  against  the  said  C  D. 

And  Also,  for  damages,  which 

sustained,  as  we'll  by  reason  of  the  detention  of  the  said 
debt,  as  for  costs  and  charges,  by  expended  in 

and  about  prosecuting  suit  in  that  behalf,  whereof  the 

said  C  I.)  is 

convicted,  as  appears  on  record :  if  he  have  so  much  of  the 
goods  and  chattels,  houses,  lands  and  other  hereditaments 
and  real  estates  of  the  said  C  I)  in  his  hands  to  be  adminis- 
tered;  or  if  he  have  not,  then  that  you  cause  the  said  debt, 
damages,  costs  and  charges  to  be  levied  of  the  proper  goods 
and  chattels,  houses,  lands  and  other  hereditaments  and  real 
estates  of  the  said  G  AV. 

And  that  y<»u  have  the  money  before  the  said  Justices  of  the 
said  Court  of  Common  Pleas,  to  be  holden  at  on 

the  in  next,  to  render  to  the 

for  debt,  damages,  costs  and  charges  aforesaid. 

And  have  you   this  writ  before  the  Clerk   of  the   said 
Court,  at  according  to  law. 

AVitxess,  Esquire,   Clerk  of  the  said  Court,  at 

the  day  of  in  fin  gear  of  our  Lord  one 

thousand  fight  hundred  >md  ,  and  in  the  gear  of  the 

Sovereignty  and  Independence  of  the  United  States  of  America. 

Plaintiff's  Attorney. 


154 

Sci.fa.  vs.  Executor,  to  assess  damages  after  interlocutory 
judgments.     See  ante,  page  28. 

The  State  of  South  Carolina: 

J],  all  and  singular  tin  Sheriffs  of  the  said  Shite — Greeting. 

Whereas  A   B,  lately  in  the  Court  of  Common  Pleas  for 
the  district  of  Charleston  and  State  aforesaid,  on  the 
day  of  A.  D.,  18       ,  impleaded  C  D,  in  an  action  on 

promises,  ("/•  of  debt,  $c,  as  the  case  may  be,)  declaring  against 
him  in  the  same  action  ;  for  that  whereas,  &c,  (here  recite  the 
declaration,)  to  the   damages  of  the  said  A  B  $  ,  as  he 

said,  and  therefore  he  brought  his  suit,  &c.  And  such  pro- 
ceedings were  thereupon  had  in  the  said  Court  of  Common 
Pleas,  that  afterwards,  to  wit :  on  the         day  of  A.  D. 

18  ,  it  was  considered  by  the  said  Court  that  the  said  A  B 
ought  to  recover  his  damages  on  occasion  of  the  promises. 
And  afterwards  and  before  the  issuing  of  a  writ  of  inquiry 
for  assessing  the  said  damages,  the  said  C  I)  died,  having 
first  duly  made  and  published  his  last  will  and  testament  in 
writing,  and  thereby  constituted  X  M  executor  thereof,  who 
after  the  death  of  the  said  C  D,  duly  proved  the  said  last 
will  and  testament  of  the  said  C  D,  and  took  upon  himself 
the  execution  thereof,  (or  if  CD  died  intestate,  say  died  intes- 
tate, and  administration  of  all  and  singular  the  goods,  chat- 
tels and  credits  which  were  of  the  said  C  I),  at  the  time  of 
his  death,  was  granted  to  X  M,)  as  now  appears.  Wherefore 
the  said  A  B  hath  humbly  besought  the  said  Court  to  pro- 
vide him  a  proper  remedy  in  this  behalf,  and  the  said  Court 
being  willing  that  what  is  just  in  this  behalf  should  be  done, 
command  you,  and  you  and  each  of  you  are  hereby  com- 
manded, that  by  good  and  lawful  men  of  your  and  each  of 
your  respective  districts,  you  make  known  to  the  said  XM, 
executor  as  aforesaid,  (or  administrator,)  that  he  be  and 
appear  before  the  Justices  of  the  said  State  at  the  Court  of 
Common  Pleas,  to  be  holden  at  Charleston  for  the  District 
of  Charleston,  on  the  day  of  next,  to  show  cause, 

if  any  he  has,  why  the  damages  in  the  said  action  should 
not  be  assessed  and  recovered  by  the  said  A  B,  and  further 


155 

to  do  and  receive  what  the  Justices  of  the  said  Court  shall 
then  and  there  consider  of  him  in  this  behalf. 

And  have  you  this  writ  before  the  Clerk  of  the  said  Court 
at  Charleston,  fifteen  days  next  before  the  sitting  thereof. 

Witness  D  H,  Clerk  of  the  said  Court  at  Charleston,  the 
day  of  in  the  year  of  oar  Lord  one  thousand  eight 

hundred  and  ,  and  in  the  year  of  the  Sovereignty  and 

Independence  of  the  United  States  of  America. 

Plaintiff's  Attorney. 

In  the  above  form  the  defendant  dies  before  writ  of 
inquiry  executed,  and  the  sci.  fa.  is  against  his  representa- 
tives. If  the  plaintiff  dies,  the  sci.  fa.  is  issued  by  his  rep- 
resentatives, and  the  form  above  is  altered  to  that  extent. 


ATTACHMENT  WRIT. 

The  State  or  South  Carolina,  ) 
Charleston  District.  J 

The  State  of  South  Carolina : 

To  all  and  singular  the  Sheriff's  of  the  said  State — Greeting : 

You,  and  each  of  you  are  hereby  required  and  com- 
manded, immediately  to  attach  the  moneys,  goods,  chattels, 
debts  and  books  of  account,  as  also  the  lands,  leasehold 
estates,  and  chattels  real  of  C  D,  who  is  absent  from  and 

without  the  limits  of  this  State,  (as  it  is  said,)  in  the 
[l.  s.]  hands,  power,  or  possession  of  any  person  or  persons 

whomsoever,  within  your,  and  each  of  your  respec- 
tive districts,  so  as  to  make  him  a  party  in  Court  before  the 
Justices  of  the  Court  of  Common  Pleas,  at  a  Court  to  be 
holden  at  the  Monday  next, 

to  answer  to  A  B,  in  a  plea  of  trespass  on  the  case,  &c, 
(as  in  assumpsit,  or  to  a  plea  of  debt,  ,fc,  as  the  cause  of  action 
may  require,)  pursuant  to  the  direction  of  the  Act  of  the 
General  Assembly  of  the  said  State,  in  such  case  made  and 
provided ;  and,  that  at  such  time   as  you  do   execute  this 


15G 

writ,  you  do  summon  the  person,  or  persons,  in  whose 
hands  the  said  moneys,  goods,  chattels,  debts  and  books  of 
account,  lands,  leasehold  estates  and  chattels  real,  shall  be, 
by  serving  him,  her,  or  them,  with  a  true  copy  of  this  writ, 
with  a  notice  endorsed  thereon,  requiring  him,  her,  or  them, 
to  be  and  appear  before  the  said  Justices,  at  the  Court  of 
Common  Pleas,   to  be  holden   at  the 

Monday  next,  as  aforesaid,  to  show  cause  why  the 

said  moneys,  goods,  chattels,  debts  and  books  of  account, 
lands,  leasehold  estates  and  chattels  real,  should  not  be  ad- 
judged to  belong  to  the  said  C  D,  the  absent  debtor. 

But,  if  no  person  is  present  at  the  time  of  your  attaching 
any  of  the  things  aforesaid,  then  and  in  such  case,  you  are 
commanded  to  affix  up  at  the  prison  door,  a  true  copy  of 
this  writ,  with  an  account  of  the  things  attached,  and  to 
give  notice  thereof  in  the  gazette :  and  in  the  case  there  be 
no  gazette,  then  you  are  required  to  publish  the  same  at  the 
door  of  the  house  where  the  Courts  of  judicature  are,  or 
shall  be  usually  holden,  for  any  person  or  persons,  claiming 
the  same,  to  appear  and  show  cause  as  aforesaid,  pursuant  to 
the  direction  of  the  aforesaid  Act  of  the  General  Assembly. 

And,  you  are  further  required,  to  seize  and  take  posses- 
sion of  all  property  of  the  absent  debtor,  which  shall  be 
attached  by  service  of  this  writ  of  foreign  attachment,  in 
the  hands,  possession,  custody,  power  or  control  of  any 
person  or  persons,  who  shall  not,  on  oath,  claim  the  same 
as  creditor  in  possession,  or  enter  into  bond,  with  good  and 
sufficient  surety,  to  the  said  Sheriff,  his  successors  in  office, 
or  assigns,  for  the  use  of  the  plaintiff,  not  to  waste  or  eloign 
the  said  property  so  attached,  and  to  render  a  schedule 
thereof,'  on  oath,  to  the  said  Sheriff,  and  to  make  due  return 
to  the  said  writ  according  to  law,  and  to  surrender  the  prop- 
erty thus  attached,  when  thereto  required  by  law,  or  by  any 
order  of  Court  made  in  pursuance  of  the  attachment  laws. 

And  further,  to  do  in  the  premises  what  the  said  Justices, 
at  the  said  Court,  shall  then  and  there  think  lit  to  order; 
and  there  bring  then  the  said  moneys,  goods,  chattels,  debts 


157 

and  books  of  account,  and  also  an  account  of  all  such  lands, 
leasehold  estates  and  chattels  real. 

And  have  you  this  writ  before  the  Clerk  of  the  said  Court, 

at  fifteen  days  next  before  the  sitting  thereof. 

Witness,  Esquire,  Clerk  of  the  said  Court,  at 

the  day  of  in  the  year  of  our  Lord,  one 

thousand  eight  hu /hired  and  ,  and  in  the  year  of  the 

Sovereignty  and  Independence  of  the  United  States  of  America. 

Plaintiff's  Attorney. 

On  the  copy  writ  is  endorsed  a  notice  to  the  garnishee,  as 
follows : 
To  K  L. 

You  are  served  with  this  writ,  or  process,  to  the  intent 
that  you  may  personally  be  and  appear  before  the  Justices 
of  the  Court  of  Common  Pleas  in  at  the  return 

thereof,  being  the  day  of  next,  in  order  to 

show  cause,  if  any  you  have,  why  the  moneys,  goods,  chat- 
tels, debts,  books  of  account,  lands,  leasehold  estates  and 
chattels  real,  now  attached  in  your  hands,  should  not  be 
judged  to  belong  to  the  within  named  C  D,  pursuant  to  the 
direction  of  the  Act  of  the  General  Assembly  of  this  State, 
in  that  case  made  and  provided. 

Plaintiff's  Attorney. 


RETURN  OF  GARNISHEE  TO  WRIT  OF  ATTACHMENT. 

State  of  South  Carolina,  1  T    ,,     ^  -r,, 

^  -p.  '  >  In  the  Common  Pleas. 

Charleston  District.       j 

vs.    V  Foreign  Attachment. 
CD.) 

K  L,  upon  whom  a  writ  of  attachment  in  the  above  enti- 
tled cause  hath  been  served,  being  duly  sworn,  makes  return 
thereto,  and  says  that  he  has  not  now,  nor  had  he  at  the 
time  of  the  service  of  the  said  writ,  nor  has  he  at  any  time 
since  had  in  his  hands,  possession,  custody,  power  or  control 


158 

any  moneys,  goods,  chattels,  debts,  books  of  account,  land, 
leasehold  estates  or  chattels  real  of,  or  belonging  to  the  said 
C  D,*  except  the  Following. 

[Here  state  the  property,  if  any,  of  the  absent  debtor,  which  the 
gamishet  has.~\ 

That  the  said  C  D  is  indebted  to  this  deponent  in  the 
sain  of  dollars  by  his  promissory  note,  dated  the  1st  day 
of  January,  A.  D.  1858,  and  payable  ten  days  afterdate,  and 
now  due  and  unpaid,  (or  state  the  indebtedness  according  to 
the  fen-Is,)  and  the  deponent  claims  and  holds  the  property 
hereinabove  enumerated  as  creditor  in  possession. 

KL. 

Sworn  to  In/are  me 

&c,  &c,  &c. 
The  return    being  filed,  the  following  order  should    be 
moved,   two    days' notice,  being  given  to  plaintiff  or  bis 

attorney  : 

A  in  ' 

vs.    > Foreign  Attachment. 
CD.  J 

K  L,  the  garnishee  in  the  above  entitled  cause,  having 
duly  filed  his  return  to  the  said  writ  on  motion  of 
attorney  of  the  said  garnishee,  it  is  ordered  that  the  said  K 
L  be  discharged  from  further  liability  upon  said  attachment. 

(Signed  by  the  Judge.) 

If  garnishee    fails  to    make   return,  then    the    following 
order  should  be  taken  : 
AB| 

vs.    > Foreign  Attachment. 
CD.j 

K  L,  upon  whom  a  writ  of  attachment  in  the  above  enti- 
tled cause  was  duly  served  on  the  day  of 
A.  D.           having  failed  to  make   any  return   thereto,  on 
motion  of                 ,  plaintiff's  attorney,  it  is  ordered  that 
the  said  A  B  have  leave  to  enter  up  judgment  against  the 

*If  garnishee  has  no  property  of  the  absent  debtor,  the  above  form  is  followed  to 
*,  then  aci  1 :  Wherefore  the  defendant  prays  to  be  discharged,  and  that  his  reason- 
able costs;  ad  expenses  in  making  this  return  be  allowed  him. 


159 

said  K  L,  as  defaulting  garnishee  for  the  debt  and  costs  due 
to  him,  the  said  A  B,  by  the  said  C  D. 
The  judgment  is  then  entered  up. 

The  State  of  South  Carolina, 
Charleston  District. 

Be  it  remembered,  that  heretofore,  to  wit,  on  the 
day  of  in  the  year  of  our  Lord  A  B  sued 

out  of  the  Court  of  Common  Pleas  for  the  district  afore- 
said, a  writ  to  attach  the  moneys,  goods,  chattels,  debts  and 
books  of  account,  land,  leasehold  estates  and  chattels  real  of 
C  D,  who  was  absent  from  and  without  the  limits  of  the  said 
State,  so  as  to  make  him  a  party  in  the  said  Court  to  answer 
to  the  said  A  B  in  a  plea,  &c.,  (following  the  writ,)  which  said 
writ  was  on  the  day  and  year  aforesaid,  duly  lodged  in  the 
office  of  the  Sheriff  of  Charleston  district.  And  on  the 
day  of  in  the  year  aforesaid,  a  copy  thereof 

was  duly  served  upon  K  L,  commanding  him  to  show  cause, 
if  any  he  had,  why  the  moneys,  goods,  chattels,  debts  and 
books  of  account,  land,  leasehold  estates  and  chattels  real, 
then  attached  in  his  hands,  should  not  be  adjudged  to 
belong  to  the  said  C  D,  to  which  said  writ  of  attachment 
the  said  Iv  L  made  no  return.  Whereupon  it  was  ordered 
by  the  Court  of  Common  Pleas  for  the  District  aforesaid, 
on  the  day  of  A.  D.  that  the  said 

A  B  have  leave  to  enter  up  judgment  against  the  said  K  L 
for  his  debt  and  costs  due  to  him  by  the  said  CD;  and 
whereas  the  said  A  B  hath  by  the  judgment  of  the  said 
Court  recovered  against  the  said  C  D  the  sum  of  dollars, 
as  well  for  (the  nonperformance  of  (tie  promises,  ,\v.,  or  for 
the  debt  according  to  the  cause  of  actio)),)  as  for  his  costs  and 
charges  by  him  in  and  about  the  said  suit  in  that  behalf 
expended,  whereof  the  said  C  D  is  convicted,  as  appears  on 
record.  Therefore  it  is  considered  that  the  said  A  B  do 
recover  against  the  said  Iv  L  the  said  sum  of  dollars,  so 

recovered  against  the  said  C  D  as  aforesaid,  and  also  the 
sum  of  dollars  for  his  costs  and  charges  by  him  expended 
in  and  about  prosecuting  his  suit  in  this  behalf,  and  now  by 


160 

the  said  Court  to  him  with  his  assent,  adjudged  which  said 
damages,  costs  and  charges  amount  in  the  whole  to 
dollars.     And  be  the  said  K  L  in  mercy,  and  so  forth. 

Plaintiff's  Attorney. 


petition  for  insolvent  debtors  act. 

State  of  South  Carolina,  \ 
District.  j 

To  the  Honorable  t/ie  Judges  of  said  State : 

The  petition  of  A  B  respectfully  showeth  unto  }^our  Hon- 
ors, that  he  is  in  custody  of  the  Sheriff  of  district, 
at  the  suit  of  C  D,  (or  if  under  ea.  sa.,  state  under  an  execu- 
tion of  capias  ad  satisfaciendum  issuing  out  of  the  Court  of 
for  the  district  of  at  the  suit  of  C  D,)  that 
he  is  willing  and  desirous  to  surrender  all  his  estates  and 
effects,  a  full  schedule  whereof  is  hereto  annexed,  and  that 
he  prays  the  benefit  of  the  Act  of  the  Legislature  for  the 
relief  of  insolvent  debtors,  and  that  the  usual  orders  in  the 
premises  may  be  made,  and  your  petitioner,  as  in  duty 
bound,  will  ever  pray,  &c. 


FORMS  m  UNITED  STATES  COURT. 

Sixth  Circuit  of  the  United  States  of  America, 
South  Carolina  District. 

The  President  of  the  United  States  of  America: 

To  the  Marshals  of  the  said  District — Greeting : 
You  are  hereby  commanded,  without  delay,  to  attach 
the  body  of  A  B,  a  citizen  of  the  State  of  South  Carolina 
wheresoever  he  may  be  found  within  the  aforesaid  district, 
so  that  you  compel  him  to  be  and  appear  before  the  Clerk 
of  the  Circuit  Court  of  the  United  States  of  America,  for 
the  aforesaid  Circuit  and  District,  at  the  rules,  to  be  holden 
at  Charleston  in  the  aforesaid  district,  on  the  first  Monday 
in  December a  next,  to  answer  to  C  D,  a  citizen  of  the  State 

a  The  rule  day,  next  after  the  issuing  of  the  writ. 


161 

of  Virginia,  in  a  plea  of  trespass,  on  the  case,  &c,  as  also 
for  certain  promises  and  assumptions  by  the  said  A  B  to 
the  said  C  I),  made  and  not  performed,  to  the  damage  of 
the  said  A  B,  five  thousand  dollars. 

And  have  you  then  and  there  this  writ. 

Witness  the  Honorable  Roger  B.  Taney,  Chief  Justice  of  the 
United  States  of  America,  at  Greenville,"  in  Soar/,  Carolina, 
district  aforesaid,  the  tenth  day  of  August*  in  the  near  of  our 
Lord  one  thousand  eight  hundredand  sixty,  and  in  the  eighty-fifth 
year  of  the  Sovereignty  and  Independence  of  the  Undid  States  of 
America. 

Plaintiff's  Attorney. 

If  plaintiff  or  defendant  are  aliens,  state  the  fact  thus: 
uTo  attach  the  body  of,"  or  kkto  answer  to  "  CD,  an  cdien 
and  subject  of  the  Queen  of  Great  Britain  and  Ireland. 

[f  plaintiff  or  defendant  is  a  corporation  "to  summon," 
or  "to  answer  to"  The  South  Carolina  Railroad  Company,  a 
body  corporate  by  Act  of  the  General  Assembly  of  the  State  of 
South  Carolina. 


THE  DECLARATION. 


The   United  States  of  America,  1  T     ,-,     «.      .,  „ 
-p.  «  .,,  '   V  ±11  the  Circuit  Court. 

District  of  bourn  Carolina.       j 

A  B,  a  citizen  of  the  State  of  South  Carolina,  was  attached 
to  answer  to  C  D,  a  citizen  of  the  State  of  Virginia,  (or  an 
alien,  or  a  corporation  as  the  ease  may  be,  strictly  following 
the  language  of  the  writ,)  in  a  plea,  &c,  (then  continue  as  in 
the  State  Court,  bearing  in  mind,  however,  that  if  the  action 
is  on  a  promissory  note  or  chose  in  action,  in  favor  of  an 
assignee,  the  declaration  must  aver  the  citizenship  of  the 
assignor,  so  as  to  show  that  he  had  the  right  to  sue  in  the 
United  States  Court.") 

The  plea  and  all  subsequent  pleadings  are  in  form  the 
same  as  in  the  State  Court. 

a  The  place  whore  the  Circuit  Court  last  held  its  session. 
'•  Some  day  in  the  preceding  term  of  the  Circuit  Court. 
c  See  ante  page  'J'. 

11 


162 

If  there  is  default,  and  interlocutory  judgment  is  entered, 
damages  are  assessed  by  reference  to  Clerk,  or  by  writ  of 
inquiry,  executed  in  like  maimer  as  in  State  Courts,  and 
substantially  the  same  form  used  in  entering  final  judgment 
as  in  the  State  Courts,  the  variations  being  only  sufficient  to 
adapt  it  to  the  United  States  Court.  The  following  Postea 
will  show  the  variations  needed. 


POSTEA    AND    JUDGMENT     ON     ISSUE    TRIED,    AND    VERDICT    FOR 

PLAINTIFF. 

Therefore,  it  is  commanded,  that  the  United  States  Mar- 
shal, in  and  for  the  district  of  South  Carolina,  do  summon 
forty-eight  good  and  lawful  men,  to  he  drawn  by  ballot, 
according  to  law,  to  he  and  appear  before  the  Justices  of 
the  said  Court,  to  be  holden  at  on  the  day 

of  next,  by  whom,  and  so  forth  ;  and  who  neither, 

and  so  forth ;  to  recognize,  and  so  forth ;  because  as  well, 
and  so  forth ;  and  the  same  day  given  to  the  parties  afore- 
said, at  the  place  aforesaid.  And  afterwards  that  is  to  say, 
on  the  day,  and  at  the  place  aforesaid,  before  the  Justices 
aforesaid,  come  as  well  the  said  [Plaintiff)  by  his  attorney 
aforesaid,  as  the  said  [Defendant)  by  his  attorney  aforesaid, 
and  the  jurors  aforesaid,  being  demanded,  some  of  them,  to 
wit  : 

come,  and  being  drawn  by  ballot,  according  to  law,  and 
sworn  of  the  jury  aforesaid,  to  say  the  truth  of  the  within 
contained,  do,  on  their  oath,  say,  that  the  said  defendant  did 
promise  and  assume  in  manner  and  farm  as  the  said  [Plaintiff) 
above  in  his  declaration  has  alleged  against  him,  ami  they 
assess  the  damages  of  the  said  [Plaintiff)  by  reason  of  the 
non-performance  of  the  said  jjromises  over  and  above  his  costs 
and  charges  by  him  about  his  suit  in  this  behalf  expended, 
to 

Therefore,  it  is  considered  that  the  said  (Plain/iff)  do 
recover  against  the  said  [Defendant)  the  damages  so  found 
by  the  jurors  aforesaid :  and  also  for  his  costs  and 


163 

charges  aforesaid,  to  the  said  {Plaintiff)  by  the  said  Court, 
now  herewith  his  assent  adjudged;  which  said  damages, 
costs  and  charges,  amount  in  the  whole  to 

and  be  the  said 
(Defendant)  in  mercy,  and  so  forth. 

Plaintiff's  Attorney. 
Judgment  signed  and  entered,  this         day  of         A.  D.  18 


united  states  court— fi.  fa.  in  case. 

The  United  States  of  America, 
South  Carolina  District. 

To ,  United  States  Marshal, 

or  any  of  his  lawful  Deputies — Greeting: 

You,  and  each  of  you,  are  hereby  commanded 
without  delay,  that  of  the  goods,  chattels,  houses  and  lands 
and  other  hereditaments,  and  real  estates,  of 

you  cause  to  be  levied  the  sum  of 

which 

in    the    Circuit    Court  of  the   United  States,  for  the  said 
district,  lately  recovered  against  the  said 

for  damages  which  sustained,  as  well  by  reason 
of  certain  promises  and  assumptions,  by  the  said 

to  the  said 
made  and  not  performed, 
as  also  the  sum  of  for  his  costs  and  charges, 

expended  in  and  about  prosecuting  suit  in  that  behalf, 

whereof  the  said 
convicted  as  appears  on  record. 

And  also,  that  you  cause  to  be  levied  the  interest  upon 

the  principal  of  said  debt,  from  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(the  day  on  which  judgment  is  entered  in  this  case) 
up  to  the  day  on  which  levy  shall  be  made,  and  satisfaction 
entered  on  this  execution  : 


164 

And  that  you  have  the  money  before  the  Justices  of  the 
said  Court,  to  be  holden  ata  on  theb 

next,  to  render  to  the  said 
for  damages,  costs  and  charges  aforesaid. 

And  you  have  this  writ  before  the  Clerk  of  the  said  Court, 
ata  according  to  law. 

Witness,  the  Honorable  Roger  B.  Taney,  Chief  Justice  of  the 
United  States,  atc  the6 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

and  in  the  year  of  the  Sovereignty  and 

Independence  of  the  United  States  of  America. 

Plaintiff's  Attorney. 


federal  court— ca.  sa.  in  case. 

The  United  States  of  America,  ~| 
District  of  South  Carolina,     j 

To ,  United  States  Marshal, 

or  any  of  his  lawful  Deputies: 
You,  and  each  of  you,  arc  hereby   commanded  without 
delay,  to  take  the  bod       of 

wheresoever       may  be  found,  within  your  and  each  of  your 
respective  districts,  and       safely  keep,  so  that  you  have 
bod     before  the  Justices  of  the  Circuit  Court  of  the  United 
States,  for  the  district  of  South  Carolina,  at  a  Court  to  be 
holden  ata  on  the1'  day  of  next,  to 

satisfy  to  the  sum  of 

which 
before  the  Justices  of  the  said  Court  at  lately  recov- 

ered against  the  said  for  damages  which 

sustained,   as  well   by  reason    of   the  non-performance    of 
certain  promises  and  assumptions  by  the  said 
to  the  said  lately  made,  as  for 


a  The  place  where  next  session  of  Circuit  Court  is  to  be  held. 
''  The  first  day  of  the  next  ensuing  term  of  the  Circuit  Court. 
c  The  place  where  the  last  session  of  the  Circuit  Court  was  held. 
d  Seme  day  in  the  preceding  term  of  the  Circuit  Court. 


165 

costs  and  charges,  by  expended,  in  and  about 

prosecuting  suit  in  that  behalf,  whereof  the  said 

convicted,  as  appears  on  record. 

And  also,  for  interest  upon 
being  the  principal  of  the  said  debt,  from  the  day 

of  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  (the  day  on  which  judgment  is  entered  in 

this   case,)   up   to  the   day  on  which   satisfaction   shall   be 
entered  on  this  execution. 

And  have  you  this  writ  before  the  Clerk  of  the  said  Court, 
ata  according  to  law. 

Witness,  the  Honorable  ,  Chief  Justice  of  the 

United  States,  at*  the0  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and 

and  in  the  yt  ar  of  the  Sovereignty  and  Independence 

of  the  United  States  of  America. 

Plaintiff's  Attorney. 


writ  of  error. 
The  United  States  of  America. 
Th   President  of  the  United  States  to  the  Judges  of  the  Circuit 

Court  of  the  United  States,  for  the  Sixth  Circuit,  in  and  for  the 

District  of  South  Carolina. 

Because,  in  the  record  and  proceedings,  as  also  in  the  ren- 
dition of  the  judgment  of  a  plea  which  is  in  the  said  Court 
before  you,  or  some  of  you,  between  A  B,  plaintiff,  and  C 
D,  defendant,  a  manifest  error  hath  happened,  to  the  great 
damage  of  the  said  C  D,  as  by  his  complaint  appears.  We 
being  willing  that  error,  if  any  hath  been,  should  be  duly 
corrected,  and  full  and  speedy  justice  done  to  the  parties 
aforesaid,  in  this  behalf  do  command  you,  if  judgment  be 
therein  given,  that    then  under  your  seal,  distinctly  and 


a  The  place  where  next  session  of  Circuit  Court  is  to  be  held. 
b  The  place  where  last  session  was  held. 
e  Some  day  in  preceding  term. 


166 

openly  you  send  the  record  and  proceedings  aforesaid,  with 
all  things  concerning  the  same,  to  the  Supreme  Court  of  the 
United  States,  together  with  the  writ,  so  that  you  have  the 
same  at  Washington  on  the  first  Monday  of  December  next, 
in  the  said  Supreme  Court,  to  he  then  and  there  held,  that 
the  record  and  proceedings  aforesaid  heing  inspected,  the 
said  Supreme  Court  may  cause  further  to  he  done  therein  to 
correct  that  error,  what  of  right  and  according  to  the  laws 
and  customs  of  the  United  States  should  he  done. 

Witness  the  Honorable  R.  B.  Taney,  Chief  Justice  of  the  said 
Supreme  Court,  the  first*  Monday  in  Decemhr^  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and 

H.  Y.  GRAY,  Clerk  Circuit  Court," 


citation. 

The  United  States  of  America. 

To  A  B— Greeting : 

You  are  hereby  cited  and  admonished  to  be  and  appear  at 
a  Supreme  Court  of  the  United  States,  to  be  holden  at  Wash- 
ington on  the  first  Monday  in  December  next,  pursuant  to 
a  writ  of  error  filed  in  the  Clerk's  office  of  the  Circuit 
Court  of  the  United  States  for  the  district  of  South  Caro- 
lina, wherein  C  D  is  a  plaintiff,  and  you  are  defendant  in 
error,  to  show  cause,  if  any  there  be,  why  the  judgment  in 
the  said  writ  of  error  mentioned,  should  not  be  corrected, 
and  speedy  justice  should  not  be  done  to  the  parties  in  that 
behalf. 

Witness  my  hand  and  sea/  at  the  city  of  in  the 

district  aforesaid,  this  day  of  A.  D.  186 c 

*  The  writ  of  error  is  tested  of  the  first  day  of  the  preceding  term  of  the  Supreme. 
Court,  and  returnable  to  the  first  day  of  the  ensuing  term. 

b  If  the  writ  of  error  is  intended  to  operate  as  a  supersedeas,  a  copy  thereof  must 
be  lodged  in  the  Clerk's  office  within  ten  days,  (see  ante  page  13.3,)  and  bond  given 
and;  approved  by  the  Judge,  who  thereupon  signs  the  following  order  endorsed  on  the 
writ : 

The  (plaintiff  or  defendant)  named  in  the  within  writ,  having  given  bond  and 
security  as  required  by  law,  which  is  approved,  this  writ  is  allowed  to  operate  as  a 
supersedeas  to  the  judgment  therein  mentioned.     Witness  my  hand  this  day  of 

A.  D. 

c  The  citation  is  signed  by  the  Judge,  and  dated  of  the  day  of  signature. 


167 


WRIT  OF  ERROR  BOND. 


Know  all  men  by  these  presents,  that  we,  C  D,  K  L  and 
G  M,  are  held  arid  firmly  hound  unto  A  B,  in  the  full  and 
just  sum   of  dollars,  to  he  paid   to  the  said  A  B,  his 

certain  attorneys,  executors,  administrators  or  assigns,  to 
which  payment,  well  and  truly  to  he  made,  we  bind  our- 
selves, our  heirs,  executors  ami  administrators,  jointly  and 
severally,  by  these  presents. 

Sidled  with  our  seals,  and  dated  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

Whereas,  lately  at  a  Circuit  Court  of  the  United  States 
for  the  ifcytl* Circuit  in  and  for  the  district  of  South  Caro- 
lina, in  a  suit  pending  in  said  Court  between  A  B,  plaintiff, 
and  C  D,  defendant,  judgment  was*reiidererT against  the  said 
C  D,  and  the  said  C  D  hath  sued  out  a  writ  of  error  to  the 
Supreme  Court  of  the  United  States,  and  to  reverse  the 
judgment  in  the  aforesaid  suit,  and  hath  hied  a  copy  of  said 
writ  in  the  office  of  the  Clerk  of  the  said  Circuit  Court,  and 
a  citation  directed  to  the  said  A  B,  citing  and  admonishing 
him  to  be  and  appear  at  a  Supreme  Court  of  the  United 
States,  to  be  held  at  the  city  of  Washington  on  the  first 
Monday  in  December  next.  Now  the  condition  of  the 
above  obligation  is  such,  that  if  the  said  C  D  shall  prosecute 
his  said  writ  of  error  to  effect  and  answer  all  damages'"  and 
costs;  if  he  shall  fail  to  make  his  plea  good,  then  the  above 
obligation  to  be  void,  or  else  to  remain  in  full  force  and 
virtue. 

Sealed  and  delivered  in  the  presence  of 

Approved  byb 

When  it  is  intended  to  carry  the  case  to  the  Supreme 
Court  for  decision,  it  is  necessary  to  make  up  what  is  tech- 
nically called  the  paper  book,  which  contains  a  transcript  of 
the  record,  the  assignment  of  error,  (either  by  bill  of  ex- 
ceptions or  such  other  form  as  may  be  proper  under  the 
circumstances,)  the  writ  of  error,  the  citation,  the  bond  to 


:l  If  writ  of  error  is  not  to  operate  as  a  supersedeas,  the   bond  and   security  need 
only  be  for  the  costs,  and  the  word  "damages"  is  omitted. 

b  The  approval  of  the  bond  is  by  the  Judge,  who  allows  the  writ  of  error. 


168 

appellee,  and  finally,  the  Clerk's  certificate  that  the  tran- 
script is  a  true  copy  from  the  record  of  the  proceedings. 

There  is  no  prescribed  form  for  the  paper  book,  but  it 
must  contain  a  transcript  of  the  record,  and  all  papers, 
exhibits,  depositions  and  other  proceedings  necessary  to  the 
hearing  in  the  Supreme  Court.  The  following  form  of  a 
paper  book,  will  serve  as  a  precedent,  to  be  varied  of  course 
according  to  the  exigency  of  each  case. 

The  United  States  of  America,)  m       •  , 
District  of  South  Carolina,     j     ow1. 

At  a  Circuit  Court  of  the  United  States  for  the  sixth  Cir- 
cuit in  and  for  the  district  of  South  Carolina,  begun  and 
holden  at  Columbia  in  the  district  aforesaid,  on  the  fourth 
Monday  in  November,  1856,  before  the  Honorable  A.  G. 
Magrath,  Judge  of  the  said  United  States,  for  the  district  of 
South  Carolina,  holding  said  Circuit  Court  according  to  the 
form  of  the  Act  of  Congress,  in  such  case  made  and  pro- 
vided, the  following  proceedings  were  had: 
A  B 


Be  it  remembered,  that  heretofore,  to  wit:  the  twenty- 
first  day  of  October,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty-seven,  the  said  A  B,  impleaded  the 
said  C  D  in  an  action  on  promises,  as  follows : 

[Here  set  out  the  writ'] 
and  D.  II.  Hamilton,  Marshal  of  the  said  United  States,  for 
the    district    aforesaid,    returned    said    writ,   endorsed     as 
follows  : 

[Set  out  Marshal's  return,  endorsed  on  writ.'] 
and  upon  the  sixth  day  of  November,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-seven,  the  said 
A  B  by  GT  W,  his  attorney,  declared  in  the  Circuit  Court 
here  against  the  said  C  D,  in  words  and  of  the  tenor  fol- 
lowing : 

[Set  out  declaration.] 

And  on  the  first  day  of  December,  in  the  year  of  our 


169 

Lord  one  thousand  eight  hundred  and  fifty-seven,  comes 
into  Court  the  said  C  D  by  L  M,  his  attorney,  and  to  the 
declaration  of  the  said  A  B,  files  his  plea  in  words  and  of 
the  tenor  as  follows  : 

[Set  out  plea  ami  issm  .] 

And  on  the  first  Monday  in  April,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty-eight,  comes  again 
into  Court  the  parties  aforesaid,  by  their  attorneys  aforesaid, 
and  upon  motion  of  the  said  A  B,  by  his  attorney,  and  by 
and  with  the  consent  of  the  said  C  D,  by  his  attorney, 
further  process  of  and  upon  the  premises  aforesaid,  is  by 
order  of  the  Court  continued  until  the  fourth  Monday  in 
November  next.  At  which  said  Monday  in  Xovember,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
eight,  comes  into  Court  the  parties  aforesaid,  by  their  attor- 
neys aforesaid. 

[Here  set  oat  Postea.~] 

MEMORANDUM. 

Before  the  jurors  withdrew  from  the  bar  of  the  Court 
here,  the  said  C  D,  by  his  attorneys  aforesaid,  tendered  to 
the  Court  here  the  following  bill  of  exceptions,  which  was 
by  the  Court  here  signed  and  sealed,  and  which  is  in  form 
following,  to  wit: 

defendant's  bill  of  exceptions. 

In  the  Circuit  Court  of  the  United  States, 
for  the  District  of  South  Carolina. 

A  in 

vs.      Xovember  Term. 
CD.  J 

At  the  trial  of  the  cause  the  plaintiff  to  maintain  and  prove 
the  issue  on  his  part,  gave  in  evidence,  [here  insert  such  parts 
of  plaintiff's  evidence  as  are  proper  to  be  inserted;  see  ante  pagt 
133,]  and  the  defendant  to  maintain  and  prove  the  issue  on 
his  part,  gave  in  evidence,  [set  out  defendant's  evidence,']  and 
the  plaintiff  in  reply  to  the  evidence  of  the  said  defendant 


170 

and  to  rebut  the  same,  gave  in  evidence,  [set  out  rebutting 
testimony,]  and  the  testimony  on  both  sides  being  closed,  the 
defendant  prayed  the  Court  to  instruct  the  jury  in  the  fol- 
lowing particulars,  [set  out  the  instructions  prayed  for.~\  But 
the  Court  rejected  each  and  every  of  the  instructions  pra}'ed 
for  by  the  defendant,  [state  this  according  to  the  fact,]  and  in 
lieu  thereof  instructed  the  jury,  [set  out  instructions  give}}  by  the 
Court;  sec  ante  page  131.]  To  the  granting  of  which  said 
instructions  and  to  the  refusal  of  those  prayed  for  by  the 
defendant,  the  defendants  then  and  there  and  before  the 
jury  had  withdrawn  from  the  bar,  did  except,  and  inas- 
much as  the  matters  aforesaid  do  not  appear  by  the  verdict 
of  the  jury,  prayed  the  Court  here  to  sign  and  seal  this  his 
bill  of  exceptions,  which  is  accordingly  done,  this  day 

of  A.  D. 

A.  G.  MAGRATH,  Judge. 

And  now  here,  at  this  day,  to  wit:  the  day  of 

A.  I).  the  said  C  D  produced  here  to  the  said  Court,  the 
writ  of  the  said  United  States  of  America  for  the  correcting 
of  errors  of  and  upon  the  promises  commanding  the  record 
and  proceedings  aforesaid,  of  the  judgment  aforesaid,  so 
rendered  as  aforesaid,  with  all  things  concerning  the  same, 
to  be  transmitted  to  the  Supreme  Court  of  the  United  States, 
to  be  held  at  the  city  of  Washington,  on  the  first  Monday  in 
December  next,  which  said  writ  of  error  is  in  the  words  and 
of  the  tenor  following : 

[Set  out  writ  of  error.] 

In  pursuance  whereof  and  according  to  the  form  and 
effect  of  the  Act  of  Congress,  in  such  case  made  and  pro- 
vided, a  transcript  of  the  record  and  proceedings  of  the 
judgment  aforesaid,  so  as  aforesaid  rendered  with  all  things 
relating  to  the  same,  together  with  the  said  writ  of  error  are 
hereby  transmitted  to  the  said  Supreme  Court  accordingly. 

[Then  set  out  citation  and  bond,  and  Clerk's  certificate  that  the 
transcript  is  a  correct  copy  of  the  record.] 


RULES 

OF    THE 

SUPREME  COURT  OF  THE  UNITED  STATES, 

Revised  and  Corrected  at  December  Term,  1858. 


No.  1. 

CLERK. 

The  Clerk  of  this  Court  shall  reside  and  keep  the  office  at 
the  seat  of  the  National  Government,  and  he  shall  not  prac- 
tice either  as  an  attorney  or  counsellor  in  this  Court  or  any 
other  Court,  while  he  shall  continue  to  he  Clerk  of  this 
Court. 

The  Clerk  shall  not  permit  any  original  record  or  paper 
to  he  taken  from  the  Supreme  Court  room,  or  from  the 
office,  without  an  order  from  the  Court. 

No.  2. 

ATTORNEYS,     ETC. 

It  shall  he  requisite  to  the  admission  of  attorneys  and 
counsellors  to  practice  in  this  Court,  that  they  shall  have 
heen  such  for  three  years  past  in  the  Supreme  Courts  of  the 
States  to  which  they  respectively  belong,  and  that  their  pri- 
vate and  professional  eharacter  shall  appear  to  he  fair. 

They  shall  respectively  take  the  following  oath  or  affirma- 
tion, viz:  "I  do  solemnly  swear  (or  affirm,  as  the  case  may 
be,)  that  I  will  demean  myself,  as  an  attorney  and  counsel- 
lor of  this  Court,  uprightly,  and  according  to  law,  and  that 
I  will  support  the  Constitution  of  the  United  States." 


172 

No.  3. 

PRACTICE. 

This  Court  consider  the  practice  of  the  Courts  of  King's 
Bench  and  of  Chancery,  in  England,  as  affording  outlines 
tor  the  practice  of  this  Court;  and  they  will,  from  time  to 
time,  make  such  alterations  therein  as  circumstances  niav 
render  necessary. 

No.  4. 

B I  L  L     OF     EXCEPTIONS. 

Hereafter,  the  Judges  of  the  Circuit  and  District  Courts 
shall  not  allow  any  bill  of  exceptions,  which  shall  contain 
the  charge  of  the  Court  at  large  to  the  jury  in  trials  at 
common  law,  upon  any  general  exception  to  the  whole  of 
such  charge.  But  the  party  excepting  shall  he  required  to 
state  distinctly  the  several  matters  of  law  in  such  charge  to 
which  he  excepted;  and  that  such  matters  of  law,  and  those 
only,  shall  be  inserted  in  the  bill  of  exceptions,  and  allowed 
by  the  Court. 

No.  5. 

PROCESS. 

All  process  of  this  Court  shall  be  in  the  name  of  the 
President  of  the  United  States. 

When  process  at  common  law,  or  in  equity,  shall  issue 
against  a  State,  the  same  shall  be  served  on  the  Governor, 
or  Chief  Executive  Magistrate,  and  Attorney  General,  of 
such  State. 

Process  of  subpoena,  issuing  out  of  this  Court,  in  any  suit 
in  equity,  shall  be  served  on  the  defendant  sixty  days  before 
the  return  day  of  the  said  process  ;  and  if  the  defendant,  on 
such  service  of  the  subpoena,  shall  not  appear  at  the  return 
day  contained  therein,  the  complainant  shall  be  at  liberty  to 
proceed  ex  parte. 


A»»<>5"12oICJ2<  ****'  e*3Svd  9ta.*GuL-&jb»^uj3  a]?-  <*~  te^Wc  c«-(«-»-i*_  v€^-»_<a 

/GT  motions  hereafter  made  to  the  Court  shall  be  reduced 
to  writing,  and  shall  contain  a  brief  statement  of  the  facts 
and  objects  of  the  motion.         Cl***-****  ed-ti^  &iul~  &-Jrtrv-*-  ^^*^anp^\ 


^zc 


No.  7. 


«■ 


\ 


LAW     LIBRAR Y C  ONFERENCE     ROOM, 

1.  During  the  session  of  the  Court,  any  gentleman  of  the  f\  >>  L,j jiSj 
bar  having  a  cause  on  the  docket,  and  wishing  to  use  any 
book  or  books  in  the  law  library,  shall  be  at  liberty,  upon 
application  to  the  Clerk  of  the  Court,  to  receive  an  order  to 
take  the  same,  (not  exceeding  at  any  one  time  three,)  from  the  ^ 
library,  he  being  thereby  responsible  for  the  due  return  of 
the  same  within  a  reasonable  time,  or  when  required  by  the 
Clerk.  And  it  shall  be  the  duty  of  the  Clerk  to  keep,  in  a 
book  for  that  purpose,  a  record  of  all  books  so  delivered, 
which  are  to  be  charged  against  the  party  receiving  the 
same.  And  in  case  the  same  shall  not  be  so  returned,  the 
party  receiving  the  same  shall  be  responsible  for,  and  forfeit 
and  pay  twice  the  value  thereof;  as  also  one  dollar  per  day 
for  each  day's  detention  beyond  the  limited  time. 

2.  The  Clerk  shall  take  charge  of  the  books  of  the  Court, 
together  with  such  of  the  duplicate  law  books  as  Congress 
may  direct  to  be  transferred  to  the  Court,  and  arrange  them 
in  the  conference  room,  which  he  shall  have  fitted  up  in  a 
proper  manner;  and  he  shall  not  permit  such  books  to  be 
taken  therefrom  by  any  one,  except  the  Judges  of  the 
Court, 

No.  8. 

RETURN     TO    WRIT     OF     ERROR,     ETC. 

1.  The  Clerk  of  the  Court  to  which  any  writ  of  error 
shall  be  directed,  may  make  return  of  the  same,  by  trans- 
mitting a  true  cop}^  of  the  record,  and  of  all  proceedings  in 
the  cause,  under  his  hand  and  the  seal  of  the  Court. 


s* 


y 


e**e^ 


Aw#-*i-€-e- 


-174  ^ 

2.  No  cause  will   hereafter   be   heard    until    a   complete 
record,  containing  in  itself,  without   references  aliunde,  all  *  +Jft 
the    papers,   exhibits,   depositions,   and    other   proceedings 
which  are  necessary  to  the  hearing  in  this  Court,  shall  be 

filed. 

3.  Whenever  it  shall  be  necessary  or  proper,  in  the  opin- 
ion of  the  presiding  Judge  in  any  Circuit  Court,  or  District 
Court  exercising  Circuit  Court  jurisdiction,  that  original 
papers  of  any  kind  should  be  inspected  in  the  Supreme 
Court,  upon  appeal,  such  presiding  Judge  may  make  such 
rule  or  order  for  the  safe  keeping,  transporting,  and  return 
of  such  original  papers,  as  to  him  may  seem  proper  ;  and 
this  Court  will  receive  and  consider  such  original  papers  in 
connection  with  the  transcript  of  the  proceedings. 

DOCKETING     CASES. 

1.  In  all  cases  where  a  writ  of  error  or  an  appeal  shall  be 
brought  to  this  Court  from  any  judgment  or  decree  ren- 
dered thirty  days  before  the  commencement  of  the  term,  it 
shall  be  the  duty  of  the  plaintiff  in  error  or  appellant,  as 
the  case  may  be,  to  docket  the  cause,  and  file  the  record 
thereof  with  the  Clerk  of  this  Court  within  the  first  six 
days  of  the  term ;  and  if  the  writ  of  error  or  appeal  shall 
be  brought  from  a  judgment  or  decree  rendered  less  than 
thirty  clays  before  the  commencement  of  the  term,  it  shall 
be  the  duty  of  the  plaintiff  in  error  or  appellant  to  docket 
the  cause,  and  file  the  record  thereof  with  the  Clerk  of  this 
Court  within  the  first  thirty  days  of  the  term  ;  and  if  the 
plaintiff  in  error  or  appellant  shall  fail  to  comply  with  this 
rule,  the  defendant  in  error  or  appellee  may  have  the  case 
docketed  and  dismissed,  upon  producing  a  certificate  from 
the  Clerk  of  the  Court  wherein  the  judgment  or  decree  was 
rendered,  stating  the  cause,  and  certifying  that  such  writ  of 
error  or  appeal  has  been  duly  sued  out  and  allowed. 

And  in  no  case  shall  the  plaintiff  in  error  or  appellant  be 
entitled  to  docket  the  cause  and  file  the  record  after  the 

% 


175. 

same  shall  have  been  docketed  and  dismissed   under  this 
rule,  unless  by  order  of  the  Court. 

2.  But  the  defendant  in  error  or  appellee  may  at  his 
option  docket  the  cause,  and  file  a  copy  of  the  record  with 
the  Clerk  of  the  Court ;  and  if  the  case  is  docketed,  and  a 
copy  of  the  record  filed  with  the  Clerk  of  this  Court,  by 
the  plaintiff  in  error  or  appellant,  within  the  periods  of 
time  above  limited  and  prescribed  by  this  rule,  or  by  the 
defendant  in  error  or  appellee,  at  any  time  thereafter  during 
the  term,  the  case  shall  stand  for  argument  at  the  term. 

3.  In  all  cases  where  the  period  of  thirty  days  is  men- 
tioned in  this  rule,  it  shall  be  extended  to  sixty  days  in  writs 
of  error  and  appeals  from  California,  Oregon,  Washington, 
New  Mexico  *w*4-  I Ttah,/VZ*-<»-/5^*_  ^^r^tr--<-»^-/  ^^r*^^, 

No.  10. 

SECURITY  FOR  COSTS PRINTING  RECORDS ATTACH- 
MENT FOR  COSTS. 

1.  In  all  cases,  the  Clerk  shall  take  of  the  party  a  bond, 
with  competent  surety,  to  secure  his  fees,  in  the  penalty  of 
two  hundred  dollars,  or  a  deposit  of  that  amount,  to  be 
placed  in  bank,  subject  to  his  draft. 

2.  In  all  cases,  the  Clerk  shall  have  fifteen  copies  of  the 
records  printed  for  the  Court ;  and  the  cost  of  printing 
shall  be  charged  to  the  government  in  the  expenses  of  the 
Court. 

3.  The  Clerk  shall  furnish  copies  for  the  printer,  shall 
supervise  the  printing,  and  shall  take  care  of  and  distribute 
the  printed  copies  to  the  Judges,  the  reporter,  and  the 
parties,  from  time  to  time,  as  required. 

4.  In  each  case,  the  Clerk  shall  charge  the  parties  the 
legal  fees  for  but  the  one  manuscript  copy  in  that  case. 

5.  In  all  cases,  the  Clerk  shall  deliver  a  copy  of  the 
printed  record  to  each  party.  And  in  cases  of  dismission, 
reversal,  or  affirmance  with  costs,  the  fees  for  the  said  man- 
uscript copy  of  the  record  shall  be  taxed  against  the  party 


176 

against  whom  costs  are  given,  and  which  charge  includes 
the  charge  for  the  copy  furnished  him. 

6.  In  cases  of  dismission  for  want  of  jurisdiction,  each 
[tarty  shall  be  charged  with  one-half  the  legal  fees  for  a 
copy. 

7.  Upon  the  Clerk  of  this  Court  producing  satisfactory 
evidence,  by  affidavit  or  the  acknowledgment  of  the  parties 
or  their  sureties,  of  having  served  a  copy  of  the  bill  of  fees 
due  by  them  respectively  in  this  Court,  on  such  parties  or 
their  sureties,  an  attachment  shall  issue  against  such  parties 
or  sureties  respectively,  to  compel  payment  of  the  said  fees. 

No.  11. 

TRANSLATIONS. 

Whenever  any  record,  transmitted  to  this  Court  upon  a 
writ  of  error  or  appeal,  shall  contain  any  document,  paper, 
testimony,  or  other  proceeding,  in  a  foreign  language,  and 
the  record  does  not  also  contain  a  translation  of  such  docu- 
ment, paper,  testimony  or  other  proceeding,  made  under  the 
authority  of  the  inferior  Court,  or  admitted  to  be  correct, 
the  record  shall  not  be  printed,  but  the  case  shall  be  reported 
to  this  Court  by  the  Clerk,  and  the  Court  will  thereupon 
remand  it  to  the  inferior  Court,  in  order  that  a  translation 
may  be  there  supplied  and  inserted  in  the  record. 

No.  12. 

EVIDENCE. 

1.  In  all  cases  where  further  proof  is  ordered  by  the 
Court,  the  depositions  which  shall  be  taken  shall  be  by  a 
commission  to  be  issued  from  this  Court,  or  from  any  Cir- 
cuit Court  of  the  United  States. 

2.  In  all  cases  of  admiralty  and  maritime  jurisdiction, 
where  new  evidence  shall  be  admissible  in  this  Court,  the 
evidence  by  testimony  of  witnesses  shall  be  taken  under  a 
commission  to  be  issued  from  this  Court,  or  from  any  Cir- 
cuit Court  of  the  United  States,  under  the  direction  of  any 


177 

Judge  thereof;  and  no  such  commission  shall  issue  but 
upon  interrogatories  to  be  filed  by  the  party  applying  for 
the  commission,  and  notice  to  the  opposite  party,  or  his 
agent  or  attorney,  accompanied  with  a  copy  of  the  interro- 
gatories so  filed,  to  file  cross-interrogatories  within  twenty 
days  from  the  service  of  such  notice:  Provided,  however,  that 
nothing  in  this  rule  shall  prevent  any  party  from  giving 
oral  testimony  in  open  Court  in  cases  where  by  law  it  is 
admissible. 

No.  13. 

DEEDS,  ETC.,   NOT  OBJECTED  TO,   ETC.,  ADMITTED,  ETC. 

In  all  cases  of  equity  and  admiralty  jurisdiction  heard  in 
this  Court,  no  objection  shall  hereafter  be  allowed  to  be 
taken  to  the  admissibility  of  any  deposition,  deed,  grant  or 
other  exhibit  found  in  the  record,  as  evidence,  unless  objec- 
tion was  taken  thereto  in  the  Court  below,  and  entered  of 
record ;  but  the  same  shall  otherwise  be  deemed  to  have 
been  admitted  by  consent. 

No.  14. 

CERTIORARI. 

No  certiorari  for  diminution  of  the  record  shall  be  here- 
after awarded  in  any  cause,  unless  a  motion  therefor  shall  be 
made  in  writing ;  and  the  facts  on  which  the  same  is 
founded  shall,  if  not  admitted  by  the  other  party,  be  veri- 
fied by  affidavit.  And  all  motions  for  such  certiorari  shall 
be  made  at  the  first  term  of  the  entry  of  the  cause ;  other- 
wise, the  same  shall  not  be  granted,  unless  upon  special 
cause  shown  to  the  Court,  accounting  satisfactorily  for  the 
delay. 

No.  15. 

DEATH     OF    A     PARTY. 

1.  Whenever,  pending  a  writ  of  error  or  appeal  in  this 
Court,  either  party  shall  die,  the  proper  representatives  in 
12 


178 

the  personalty  or  realty  of  the  deceased  party,  according  to 
the  nature  of  the  case,  may  voluntarily  come  in  and  he 
admitted  parties  to  the  suit;  and  thereupon  the  cause  shall 
he  heard  and  determined,  as  in  other  eases  ;  and  if  such  rep- 
resentatives shall  not  voluntarily  become  parties,  then  the 
other  party  may  suggest  the  death  on  the  record,  and  there- 
upon, on  motion,  obtain  an  order,  that  unless  such  represen- 
tatives shall  become  parties  within  the  first  ten  days  of  the 
ensuing  term,  the  party  moving  for  such  order,  if  defendant 
in  error,  shall  he  entitled  to  have  the  writ  of  error  or  appeal 
dismissed;  and  if  the  party  so  moving  shall  he  plaintiff  in 
error,  he  shall  be  entitled  to  open  the  record,  and,  on  hear- 
ing, have  the  same  reversed,  if  it  be  erroneous;  Provided, 
hoiverer,  that  a  copy  of  every  sneh  order  shall  he  printed  in 
some  newspaper  at  the  seat  of  government,  in  which  the 
laws  of  the  United  States  shall  he  printed  by  authority,  for 
three  successive  weeks,  at  least  sixty  days  before  the  begin- 
ning of  the  term  of  the  Supreme  Court  then  next  ensuing. 
2.  When  the  death  of  a  party  is  suggested,  and  the  repre- 
sentatives of  the  deceased  do  not  appear  by  the  tenth  day  of 
the  second  term  next  succeeding  the  suggestion,  and  no 
measures  are  taken  by  the  opposite  party  within  that  time 
to  compel  their  appearance,  the  case  shall  abate. 

No.  IB. 

NO     APPEARANCE     OF     PLAINTIFF     IN     ERROR.     ,       >a 

Where  there  is  no  appearance  for  the  plaintiff  in  error 
when  the  case  is  called  for  trial,  the  defendant  may  have  the 
plaintiff  called,  and  dismiss  the  writ  of  error,  or  may  open 
the  record,  and  pray  for  an  affirmance. 

No.  17. 

NO  APPEARANCE  OF  DEFENDANT  IN  ERROR. 

Where  the  defendant  in  error  fails  to  appear  when  the 
cause   shall  be  called  for  trial,  the   Court  may  proceed  to 


179 

hear  an  argument  on  the  part  of  the  plaintiff,  and  to  give 
judgment  according  to  the  right  of  the  cause. 

No.  18. 

NO     APPEARANCE     OF     EITHER     PARTY. 

When  a  case  is  readied  in  the  regular  call  of  the  docket, 
and  no  appearance  is  entered  for  either  part}',  the  case  shall 
be  dismissed,  at  the  costs  of  the  plaintiff. 

No.  19. 

NEITHER  PARTY  READY  AT  SECOND  TERM. 

When  a  ease  is  called  for  argument  at  two  successive 
terms,  and  upon  the  call  at  the  second  term  neither  party  is 
prepared  to  argue  it,  it  shall  be  dismissed  at  the  costs  of 
the  plaintiff,  unless  sufficient  cause  is  shown  for  further 
postponement. 

No.  20. 

PRINTED     ARGUMENTS. 

1.  In  all  cases  brought  here  on  appeal,  writ  of  error,  or 
otherwise,  the  Court  will  receive  printed  arguments,  with- 
out regard  to  the  number  of  the  case  on  the  docket,  if  the 
(..counsel  on  both  sides  shall  choose  so  to  submit  the  sanies 


jQQ^f&Isu^  O^6o'^r>  ^tL*_C^-^<^t"/  '/uni 

2.  When  a  case  is  readied  in  the  regular  call  of  the 
docket,  and  a  printed  argument  shall  be  filed  for  one  or  both 
pai'ties,  the  case  shall  stand  on  the  same  footing  as  if  there 
were  an  appearance  by  counsel. 

3.  When  a  case  is  taken  up  for  trial  upon  the  regular  call 
of  the  docket,  and  argued  orally  in  behalf  of  only  one  of 
the  parties,  no  printed  argument  will  he  received  unless  it  is 
filed  before  the  oral  argument  begins,  and  the  Court  will 
proceed  to  consider  and  decide  the  case  upon  the  ex  parte 
argument. 


/ 


180 
No.  21. 

TWO     COUNSE  L — T  W  0     H  0  U  R  S — B  RIEFS. 

1.  Only  two  counsel  shall  be  permitted  to  argue  for  each 

party,  plaintiff  and  defendant,  in  a  cause. 

#**&-u>*  6-ujiy  /  2.  No  counsel  will  be  permitted  to  speak  in  the  argument 

T         \^^7 1  °^  any  case  more  than  two  hours,  without  the  special  leave 

£L  .  c ]Jt  f  f.lt.  W>f  the  Court,  granted  before  the  argument  begins. 

<^~  djm-*L~*—  '       3.  Counsel  will  not  be  heard,  unless  a  printed  brief  or 

abstract  of  the  case  be  first  filed,  together  with  the  points 

intended  to  be  made,  and  the  authorities  intended  to  be 

cited   in    support  of  them  arranged   under  the   respective 

points ;  ftwcHno  other  -buuk  ui-umij  In.   roforrocl  to -in  the 

■argument.  jV  few'-jet^r^  ^^^y^/t^^ZTt* 

The  same  shall  be  signed  by  an  attorney  or  counsellor 
of  this  Court. 
/G  -%-.  If  one  of  the  parties  omits  to  file  such  a  statement,  he 
cannot  be  heard,  and  the  case  will  be  heard  ex  parte  upon  the 
argument  of  the  party  by  whom  the  statement  is  filed. 
//  -it.  Fiftdenprintecl  copies  of  the  abstract,  points,  and 
authorities,  required  by  this  rule,  shall  be  filed  with  the 
^erl^irree^ta^noe^re  Toecase  is  caTTecPrni'  argument; 

/Ji  -¥r  When  no  counsel  appears  for  one  of  the  parties,  and 
no  printed  brief  or  argument  is  filed,  only  one  counsel  will 
be  heard  for  the  adverse  party.  But  if  a  printed  brief  or 
argument  is  filed,  the  adverse  party  will  be"  entitled  to  be 
heard  by  two  counsel. 

No.  22. 

ORDER     OF     ARGUMENT. 

The  plaintiff  or  appellant  in  this  Court  shall  be  entitled  to 
open  and  conclude  the  case.  But,  when  there  are  cross- 
appeals,  the}-  shall  be  argued  together  as  one  case,  and  the 
plaintiff  in  the  Court  below  shall  be  entitled  to  open  and 
conclude  the  argument. 


181 

No.  23. 

INTEREST,     ETC. 

1.  Iii  cases  where  a  writ  of  error  is  prosecuted  to  the 
Supreme  Court,  and  the  judgment  of  the  inferior  Court  is 
affirmed,  the  interest  shall  be  calculated  and  levied  from  the 
date  of  the  judgment  below  until  the  same  is  paid,  at  the 
same  rate  that  similar  judgments  bear  interest  in  the  Courts 
of  the  State  where  such  judgment  is  rendered. 

2.  The  same  rule  shall  be  applied  to  decrees  for  the  pay- 
ment of  money  in  cases  in  chancery,  unless  otherwise 
ordered  by  this  Court. 

3.  In  all  cases  where  a  writ  of  error  shall  delay  the  pro- 
ceedings on  "the  judgment  of  the  CircunV  Court,  and  shall 
appear  to  have  been  sued  out  merely  for  delay,  damages 
shall  be  awarded,  at  the  rate  of  ten  per  centum  per  annum  on 
the  amount  of  the  judgment ;  and  the  said  damages  shall  be 
calculated  from  the  date  of  the  judgment  in  the  Court  below 
until  the  money  is  paid. 

No.  24. 

COSTS. 

1.  In  all  cases  where  any  suit  shall  be  dismissed  in  this 
Court,  except  where  the  dismissal  shall  be  for  want  of  juris- 
diction, costs  shall  be  allowed  for  the  defendant  in  error,  or 
appellee,  as  the  case  may  be,  unless  otherwise  agreed  by  the 
parties. 

2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in 
this  Court,  costs  shall  be  allowed  to  the  defendant  in  error, 
or  appellee,  as  the  case  may  be,  unless  otherwise  ordered  by 
the  Court. 

3.  In  all  cases  of  reversals  of  any  judgment  or  decree  in 
this  Court,  costs  shall  be  allowed  in  this  Court  for  the 
plaintiff  in  error  or  appellant,  as  the  case  may  be,  unless 
otherwise  ordered  by  the  Court. 

4.  Neither  of  the  foregoing  rules  shall  apply  to  cases 


182 

where  the  United  States  are  a  party;  but  in  such  cases  no 
costs  shall  be  allowed  in  this  Court  for  or  against  the  United 
States. 

5.  In  all  eases  of  the  dismissal  of  any  suit  in  this  Court, 
it  shall  be  the  duty  of  the  Clerk  to  issue  a  mandate,  or  other 
proper  process,  in  the  nature  of  &  procedendo,  to  the  Court 
below,  for  the  purpose  of  informing  such  Court  of  the  pro- 
ceedings in  this  Court,  so  that  farther  proceedings  may  be 
had  in  such  Court  as  to  law  and  justice  may  appertain. 

(3.  When  costs  are  allowed  in  this  Court,  it  shall  be  the 
duty  of  the  Clerk  to  insert  the  amount  thereof  in  the  body 
of  the  mandate,  or  other  proper  process,  sent  to  the  Court 
below,  and  annex  to  the  same  the  bill  of  items  taxed  in 
detail. 

Xo.  25. 

OPINIONS     OF     THE     COURT. 

1.  All  opinions  delivered  by  the  Court  shall  immediately, 
upon  the  delivery  thereof,  be  delivered  over  to  the  Clerk  to 
be  recorded.  And  it  shall  be  the  duty  of  the  Clerk  to  cause 
the  same  to  be  forthwith  recorded,  and  to  deliver  the  origi- 
nals, with  a  transcript  of  the  judgment  or  decree  of  the 
Court  thereon,  to  the  reporter,  as  soon  as  the  same  shall  be 
recorded. 

2.  And  all  the  opinions  of  the  Court,  as  far  as  practica- 
ble, shall  be  recorded  during  the  term,  so  that  the  publica- 
tion of  the  reports  may  not  be  delayed  thereby. 

3.  The  -grkjinftl  opinions  ,ofthe  Court,  4e-liveied  IT»  Llw 
i-opMv|tM-    shall  be  tiled   i i l-Itno^tfi o a- of  the   Clerk  of  th<^4 
Court,  for  preservation,  at;;  coon  a.*  the  volume  of  reports-fen  " 
thu-Uim,  at  which  Hiu  ait  dilhued,  shall  ul  publijhud. 

Xo.  26. 

CALL     OF    THE     DOCKET. 

The  Court,  on  the  second  day  in  each  term,  will  com- 
mence calling  the  cases  for  argument  in  the  order  in  which 


183 

they  stand  on  the  docket,  and  proceed  from  day  to  day 
during  the  term,  in  the  same  order;  and  if  the  parties,  or 
either  of  them,  shall  be  ready  when  the  ease  is  called,  the 
same  will  be  heard ;  and  if  neither  party  shall  be  ready  to 
proceed  in  the  argument,  the  cause  shall  go  down  to  the  foot 
of  the  docket,  unless  some  good  and  satisfactory  reason  to 
the  contrary  shall  be  shown  to  the  Court,  That  ten  causes 
only  shall  be  considered  as  liable  to  be  called  on  each  day 
during  the  term,  including  the  one  under  argument,  if  the 
same  shall  not  be  concluded  on  the  preceding  day.  No 
cause  shall  be  taken  up  out  of  the  order  on  the  docket,  or 
be  set  down  for  any  particular  day,  except  under  special  and 
peculiar  circumstances,  to  be  shown  to  the  Court,  Every 
cause  which  shall  have  been  called  in  its  order,  and  passed, 
and  put  at  the  foot  of  the  docket,  shall,  if  not  again  reached 
during  the  term  it  was  called,  be  continued  to  the  next  term 
of  the  Court. 

No.  27. 

•  •  *  MOTION     DAY. 

The  Court  will  not  hear  arguments  on  Saturday,  "(unless 
foji  special  caCrse^it  shall  order  to  the  cpn1rarv.,»)  but  will 
devote  that  day  to  me-other  business  ofthe  Court ;  and  on' 
Friday  in  each  week,  dirrmgthe  sitting  of  the  Court, 
motions  in  cases  not  requirj&doy  ike  rules  of  the  Court  to 
be  put  on  the  docket  shaff  be  entitled  to^preference,  if  such 
motions  shall  be  mtuM  before  the  Court  shalTrMiye  entered 
on  the  hearing  of/a  cause  upon  tl5e  docket. 

No.  -&8r-    ^/ 

C  ADJOURNMENT. 

The  Court  will,  at  every  session,  announce  on  what  day  it 
will  adjourn  at  least  ten  days  before  the  time  which  shall  be 
fixed  upon ;  and  the  Court  will  take  up  no  ease  for  argu- 
ment, nor  receive  any  case  upon  printed  briefs,  within  three 
days  next  before  the  day  fixed  upon  for  adjournment. 


184 

DISMISSING}    CASES    IN    VACATION. 

Whenever  the  plaintiff  and  defendant  in  a  writ  of  error 
pending  in  this  Court,  or  the  appellant  and  appellee  in  any 
appeal,  shall  at  anytime  hereafter,  in  vacation  and  out  of 
term  time,  by  their  respective  attorneys,  who  are  entered  as 
such  on  the  record,  sign  and  rile  with  the  Clerk  an  agree- 
ment in  writing,  directing  the  case  to  be  dismissed,  and 
specifying  the  terms  upon  which  it  is  to  be  dismissed  as  to 
costs,  and  also  paying  to  the  Clerk  any  fees  that  may  be  due 
to  him,  it  shall  be  the  duty  of  the  Clerk  to  enter  the  case 
dismissed,  and  to  give  to  either  party  which  may  request  it 
a  copy  of  the  agreement  filed ;  but  no  mandate  or  other 
process  is  to  issue  without  an  order  by  the  Court. 

S*  ..  -V"   TTf         <T-     ^    -T   -~%  a^j>w^  OL^e-**'-  m&mso^d  ^#*2* 


s 


INDEX. 


Administrators.     (See  Executors.) 

Alien", — right  to  sue  and  be  sued  in  U.  S.  Court, 

Alienage, — how  stated  on  the  record, 

Appeal, — how  made, 

in  cases  under  Insolvent  Debtors  Act, 
"       "         "      Prison  Bounds  Act,     . 
"  U.  S.  Court,  .... 

"      "         "        security  given  on  appeal, 
"       "         "        when  docketed  in   Supreme  Court 
(See  Writ  of  Error.) 
Appearance, — when  and  how  made,         .... 

to  what  Court  must  be  made,     ... 
Assignee  under  Attachment  Act,  duties  of, 

"     Insolvent  Debtors  Act,      .... 

of  chose  in  action — right  to  sue  in  U.  S.  Court, 
Attachment  Foreign, — 

when  it  may  issue,      ..... 

form  of  writ.     (See  Appendix.) 

how  served,         ...... 

what  may  be  attached,         .... 

bond  in, 

motion  to  set  aside  writ,  when  and  by  whom  made, 
lien  of,         .....         . 

declaration  in,     . 

plea  to,  when  filed,     .... 

process  of,  does  not  exist  in  U.  S.  Court. 
(See  Garnishee.) 


89 

99 

30 

73 

81 

121 

125 

134 

12 
7 
60 
76 
97 

46 
49 
49 
48 
50 
50 
51 
60 
60 
96 


Bail,- 


order  for,  how  obtained, 
to  what  errors  may  bail  except, 
liability  of,        ... 
how  and  when  fixed, 

13 


37 
40 
42 
42 
43 


186 


INDEX. 


Bail. — when  may  they  surrender  their  principal, 
in  attachment,  when  entered  and  effect  of, 
U.  S.  Courts,  ...... 

"         "         fixed  by  return  of  nulla  bona  to  ,fi-,fo. 
Bankrupt  Law, — power  of  State  to  enact. 
Bill  of  Exceptions, — in  IT.  S.  Court,    . 

to  the  admission  of  evidence, 

instructions  of  the  Judge,     . 
when  exceptions  should  be  tendered, 
when   signed,  .... 

what  it  should  contain,    . 
form  of.     (See  Appendix.) 
Bill  of  Particulars 


PAGE. 
44 

61 

118 
120 
135 
128 
129 
130 
132 
132 
133 
169 
15 


Circuit  Court.     (See  United  States.) 
Citation, — when  issued  and  by  whom, 

service  of,      .  ..... 

form  of.     (See  Appendix.)     . 
Citizen.     (See  Jurisdiction.) 
Clerk, — reference  to,         ...... 

Commission  to  take  testimony,  .... 

"  "  in  TT.  S.  Court, 

Continuance, — when  granted,         .... 

CORPORATION, — right  to  sue  and  be  sued  in  U.  S.  Court, 


133 
134 
166 

17 

23 

111 

20 
91 


Declaration, — when  and  where  filed. 

in  attachment,  .... 

when  filed  in  Som..  Pro.  jurisdiction, 
in  U.  S.  Court,         .... 

Deposition  <le  bene  esse  in  U.  S.  Court.     . 

Discount, — how  set  up, 

Discontinuance, 


13 
60 

34 

109 

110 

19 

21 


Endorsee, — right  to  sue  in  U.  S.  Court,    . 
Error.     (See  Writ  of  Error.) 

assignment  of,  on  appeal  in  U.  S.  Court, 
Evidence, — how  produced,        .... 

by  commission.     (See  Commission.) 

in  U.  S.  Court  how  produced, 

law  governing  production  of, 

judgment  for  non-production  of  written. 
Execution, — how  issued  and  renewed, 

ill  bonis propriis  against  executor.     (See  Appendix.) 


97 
123 
126 

21 

23 
109 
102 
114 

31 
153 


INDEX. 


1ST 


Exceptions, — in  U.  S.  C.  Court,  laws  regulating  form  of  and  pro- 
ceedings on,     .         .         .         .         .         .         .         .104 

how  issued  and  returned,     .         .         .         .         .         .117 

Executors  and  Administrators,— #ci.  Fa.  against,  to  assess  dam- 
ages after  death  of  princi- 
pal,     .... 

when   competent  to  sue  and 
be  sued  in  U.  S.  Court, 
Fraudulent  Preference.     (See  Insolvent  Debtors  Act.)     . 


Garnishee, — how  served.  ..... 

when  may  claim  as  creditor  in  possession, 
return  to  writ  must  always  be  made,     . 

"         "        must  be  under  oath, 
when  return  must  be  filed,   . 
liability  of,  for  failure  to  return,  . 
return  of,  how  contested, 
judgment  against,  how  obtained, 
(See  Forms  in  Appendix.) 

Imparlance, — not  allowed  in  U.  S.  Coui-t, 
Inquiry, — writ  of,  how  executed,      .... 
Insolvent  Debtors  Act, — 

who  entitled  to, 

petition  for,  when  tiled, 

form  of  petition.     (See  Appendix.) 

notice  of  petition,  how  given,     . 

schedule,  when  to  be  filed, 

what  it  should  contain, 

amendment  of  schedule,    . 

suggestions  contesting  schedule, 

trial  of  suggestions,   . 

re-arrest  of  applicant  after  conviction  of  fraud 

appeal,  how  taken,    . 

right  of  applicant  pending  appeal, 

assignment  of  effects, 

discharge  and  effect  of, 

discharge  of  in  U.  S.  Court, 

effect  of  discharge  in  U.  S.  Court, 
Instructions, — when  asked  in  U.  S.  Court, 
Interest  on  Judgments  in  U.  S.  Courts, 

Jail  Bounds, — how  obtained,  .... 

bond  for,  when  given, 
in  U.  S.  Court,  .... 


90 
67 

51 

56 
55 
53 
56 
5  7 
57 
17 
157 

109 

17 

66 
69 

160 
6!) 
70 

70 
71 


73 

73 

74 

7li 

78 

135 

141 

117 

117 

64 

64 

141 


188 


INDEX- 


Judgment, — final:   when  and  how  entered, 
"        after  death  of  party, 
of  not)  pros.,         .... 
by  default,  how  entered  and  vacated, 
of  nonsuit,  .... 

final  in  U.  S.  Court,  when  and  how  entered, 
by  default  in  U.  S.  Court  for  non-production  of  testimony,   1 1 4 
for  default  of  appearance  or  plea  in  U.  S.  Court,  how 

entered  and  vacated, 
lien  of  in  U.  S.  Court, 
Jurisdiction, — in  Sum.  Pro.     (See  Sum.  Pro.) 
of  U.  S.  Courts  generally, 
"       "      Circuit  Court, 
amount  necessary, 
character  of  parties,  aliens, 
citizens, 
corporations, 
must  be  averred  on  the  record, 
how  stated  on  record, 
removal  of  parties  pendente  lite  does  not  affect  juris 

diction,  .... 

objection  to,  how  and  when  taken, 

Mortgagees, — to  prove  claims  under  Insolvent  Debtors  Act, 


New  Trial.     (See  Appeal.) 

in  U.  S.  Court,  .... 

NONSUIT, — when  and  how  obtained, 

in  invitum  not  allowed  in  U.  S.  Court, 

Payment  into  Court, — how  made, 

Peeas, — when  to  be  filed,  ..... 

"         "         "     in  U.  S.  Court, 
"         "         "     in  Foreign  attachment, 
Pleading  Double    ....... 

Prison  Bounds  Act, — who  entitled  to,    . 

schedule,  when  filed,    . 
proceedings  on  application  for, 
appeal  under, 
right  of  applicant  pending  appeal, 
discharge  under, 
Prison  Rules, — how  obtained,  .... 

how  far  extend,      .... 

"     "         "      in  U.  S.  Court, 
bond  for, 


INDEX. 


189 


Reference  to  Clerk, 

Removal  of  Causes, — from  State  to  U.  S.  Courts. 
Reply, — in  argument, 
in  evidence, 
Rule  to  plead,— when  posted, 

Schedule. 


Sci.  Fa.,- 


Set  off. 
Sheriff, 


(See  Insolvent  Debtors  Act.) 
(See  Prison  Bounds  Act.) 
to  assess  damages  after  death  of  party, 
(See  form  of  Writ  in  Appendix.) 
against  Bail, 
in  U.  S.  Courts, 
(See  Discount.) 
-mode  of  serving  writ, 
return  to  writ, 
service  of  Attachment  Writ, 
State  Laws, — their  effect  in  U.  S.  Court  as  Rules  of  dec 

Subpoena, — how  issued, 

duces  tecum — how  issued, 
in  U.  S.  Court,        .... 
Suggestions.     (See  Insolvent  Debtor's  Act.)    . 

(See  Garnishee.) 
Sum.  Pro., — jurisdiction  in,        ... 

pleadings  in,  .... 

interrogatories  in,  ... 

judgment  in,  .... 

United  States, — judicial  power  of, 

"         "  how  exercised, 

Circuit  Court,  how  composed, 

"         "  jurisdiction  of.     (See  Jurisdiction.) 

•'         "  removal  of  cases  to,  from  State  Court, 

"         "  modes  of  removal,  .... 

"         "  State  Laws  as  rules  of  decision  in, 

"         "  process  and  practice  in,  . 

Witnesses, — attendance  of,  how  secured,  ..... 

"  "  before  Commissioners, 

may  be  recalled  after  nonsuit  argued, 
in  U.  S.  Court,  how  summoned,     . 

Writ, — how  filled  out, 

description  of  parties  in, 

service  of, 

endorsement  on, 


PAGE. 

17 
93 
26 
26 
15 
109 

70 
79 

28 

39 

103 

19 

8 

12 

49 

100 

23 

22 

109 

72 

57 

32 

35 

36 

37 

84 

87 


93 

94 

100 

103 

23 
25 

26 

109 

7 

10 

8 
7 


190 


INDEX. 


Writ, — when  returnable, 
alias  and  pluries, 

test  of,  ..... 

return  of  Sheriff  to, 
of  Attachment.     (See  Attachment.} 
"    Inquiry.     (See  Inquiry.) 
in  U.  S.  Court.     (See  form  in  Appendix.) 
"         "  service  of, 

"         '■  laws  regulating, 

"         "  issue  of  and  proceedings  on, 

"  test  of,       ...         . 

"         "  when  and  how  returnable, 

Writ  of  Error, — form  of.     (See  Appendix.) 
lies  only  on  final  judgment, 
amount  in  dispute  must  exceed  $2,000, 
must  be  brought  within  five  years, 
when  it  operates  as  supersedeas, 
what  must  be  returned  with  the  writ  to  the  Su 
preme  Court,  ...... 


PAGE. 

7 
9 
11 
12 
46 
17 
160 

95 

103 
103 
108 
108 
1G5 
123 
124 
125 
125 

126 


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KFS2329 

C65  Conner,  James. 

I860  The  history  of  a  suit  at 

c.4  law.