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Full text of "History of 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"

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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 

a Act 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. 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. 
c McCullough 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. 

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. 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. 

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

c Norris 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, 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. 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. 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. 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} T ments 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. 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. 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. 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. 
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. 

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. 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. 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. 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. 

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. 

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. 

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. 

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. 

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. 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. 

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. 

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. 

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. 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, 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. 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. 

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. 

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. 
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; 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. 

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 administrator 1 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, 
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. 

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. 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. 

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. 

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. 
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." 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. 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. 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. 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. 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 Act d 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 McM v 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. 

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, "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. 

e Wallingsvs. 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. 

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. 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, 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. 

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, 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. 

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. 

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." 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" 
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. 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. 

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; 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. 
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, 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; 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. 

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, 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. . 

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. 

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." 

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, 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. 

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. 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. 

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, 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. 

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. 

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. 

The fourteenth section of the Judiciary Act of 1789 d 
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 1789 e * 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. 

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 1792 a 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 seven 1 ' 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 1828 a (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, 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, 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 - vrifrtHi p nw 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. 

Ordinarily, a summons from the commissioners is suffi- 

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

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. 

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. 

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. 

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. 

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, 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 Act c 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. 



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 1792 a 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 w r rits 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. 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 2nd a 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, 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. 

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, 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, 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 citation 4 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. 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. 

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. 

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 
Court 8, 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." 

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 Act b 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 ^ t x i; ( 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, 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 '^'" 1 e e . 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^ t y. 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) ? hi s 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: 
u To attach the body of," or kk to 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 at a on the b 

next, to render to the said 
for damages, costs and charges aforesaid. 

And you have this writ before the Clerk of the said Court, 
at a according to law. 

Witness, the Honorable Roger B. Taney, Chief Justice of the 
United States, at c the 6 

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 at a on the 1 ' 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, 
at a according to law. 

Witness, the Honorable , Chief Justice of the 

United States, at* the 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, late ly 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 by b 

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 T tah,/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 




jQ Q^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 H 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 °^ an y case more than two hours, without the special leave 

£L . c ] J t 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 - um i j 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 
argumen t of the party by whom the statement is filed. 
// -it. Fiftden printecl 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 , oft he Court, 4e-liveied IT» Llw 
i-op M v| t M- 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 T T . 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 



UNIVERSITY OF SOUTH CAROLINA 
SCHOOL OF LAW LIBRARY 



USC - COLEMAN KARESH LAW LIBRARY 




0101 



^SD 



SCHOOL OF LAW LIBRARY 



KFS2329 

C65 Conner, James. 

I860 The history of a suit at 

c.4 law.