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THE
HISTORY
A SUIT AT LAW,
ACCORDING TO THE
PRACTICE OF THIS STATE.
WITH A SKETCH OF THE PRACTICE IN THE COURTS OF THE UNITED
STATES FOR SOUTH CAROLINA.
U Y
J A M E S CO N N B R ,
< H' the Charleston Bar.
d>M
SECOND EDITION
CHARLESTON, S. C. :
S. G. COURTENAY, No. 9 BROAD STREET.
McCARTER & DAWSON, 116 MEETING STREET.
1860.
AW
3-D ^1
CHARLESTON :
EVANS & COGSWELL, PRINTERS,
NO. 3 BROAD STREET.
PREFACE TO FIRST EDITION.
This slight sketch of the practice of the State is not
published with the expectation that it can be of any value
to the active members of the profession. It does not aspire
to such dignity ; but is addressed solely to the students at
law, in the hope that it may furnish to them some assistance
in ascertaining what is the practice of the Court, and what
the authority for it.
Charleston, December, 1856.
PREFACE TO SECOND EDITION.
The kind welcome extended by the profession to this little
work, soon exhausted the first edition, and a second has, for
some time past, been desired.
In preparing it I have noted such points as have been sug-
gested by the recent reports, and have added, at the request of
many of the Bar, a sketch of the practice on the Common Law
side of the Courts of the United States.
The nature and constitution of the United States Courts
require the practice of those Courts, in each State, to conform
to that adopted by the State Courts, and this diversity of prac-
tice is possibly the reason why no general treatise on the sub-
ject has been published. Some guide to the practice has,
however, been eagerly desired by many of the Bar in this
State, and as the laws defining the jurisdiction of the Court
and regulating its proceedings, are contained in the Acts of
Congress and Decisions of the Courts of the United States,
comprising many volumes, not accessible to the majority of
the profession, I have added a chapter on the progress of a
suit at law in the United States Court. In doing so, I have
adhered strictly to the original plan of the work, which is, to
furnish an elementary guide to the student, rather than a
manual of practice for the lawyer.
With a deep sense of the kindness which has been so freely
extended to me by my professional brethren, I again submit
myself to their good will.
J. C.
Charleston, October 20th, 1860.
THE HISTORY OF A SUIT AT LAW.
The first step in the commencement of an action at law,
is to bring the defendant into Court, to answer the charge
made against him by the plaintiff; this is effected by the
writ, technically styled capias ad respondendum. The origi-
nal writ, according to the English practice, does not exist
with us, but by our adoption of much of that practice, the
capias ml respondendum still retains its appellation of mesne
process, although in fact it is the original writ. The form
of the writ is familiar to all, and I shall only note here
some few matters touching the proper method of filling up
the blanks, and the direction to be given to the writ when
properly filled out.
The writ is addressed to u All and singular the Sheriffs of
the said State;" for the process of the Superior Court of the
State runs to every part of the State,a and the Clerk of the
Court of one district, may test a writ returnable to the
Court of any other district.b The writ must, however, be
served by the Sheriff of the district where the defendant is
found or resides ;c and where there are two or more defend-
ants to the same action, and each residing in different dis-
tricts, the writ may be made returnable to the Court of the
district in which any one of the defendants resides, and the
defendants are bound to appear where the writ is made
returnable, and where the notice endorsed on the writ
requires them to appear.*1
aAct of 1789, 7 Stat, 254; 1799, 7 Stat., 293.
b Douglass vs. Owens, 5 Rich., 534.
••■ Act of 1768, 7 Stat., 200 ; Wood vs. Crosby, 2 Hill, 520.
a Wallace vs. Prince, 3 Rich., 17S.
8
The manner of serving the writ upon the defendant,
technically called the service of the writ, is prescribed by
the Act of 1737, (7 Stat., 190,) and is either by serving a
copy personally upon the defendant, or by leaving a copy
at the defendant's usual place of abode. Questions some-
times arise as to which is the defendant's usual place of
abode. In Gadsden ads. Johnson, 1 K & McC, 89, the
defendant resided in Charleston during the summer, and in
the country during the winter ; a copy writ was left at his
Charleston residence in the winter, and the Court held the
service insufficient, as the copy was not left at his usual
place of abode ; but when the defendant has his residence
in the State, and has merely left the State temporarily, ser-
vice by copy left at his residence, is sufficient, unless the
defendant will come into Court and make affidavit that he
was surprised, or is in danger of suffering injury from not
knowing of the service of the writ.a The Act of 1737, fur-
ther prescribes that where the service is by copy left, the
copy shall be delivered to some white person, if there is
any such to be found at defendant's place of residence, and
if not, the copy is to be left at some obvious part of the
house. Under this clause of the Act, the Court held that a
copy delivered to a negro in the piazza of the defendant's
house was a sufficient service.b
Where the action is against husband and wife, service of
the writ on the husband alone is sufficient.0 If against a
corporation, the service must be upon the officers of the
corporation, usually upon the President. d If against a firm,
and one or more of the copartners are out of the State, or
there are dormant partners, it is sufficient to serve process
upon such of the copartners as may be found in the State,
or are known.6 In preparing the writ, care must be taken
a Lark vs. Chappell, 1 McC, 566; Frean ads. Cruikshanks, 3 McC, 84 ; Bank vs.
Simpson, 2 McM., 354.
b Alston ads. Bowers, 1 N. & McC, 458.
cMcCullough vs. Boyce, 1 Bail., 521.
d Young vs. Bank of Hamburg, Dudley, 37.
e Act of 1792, 7 Stat., 281 ; Bank vs. Broadfoot, 4 McC, 30.
that there is a separate copy writ for each of the copartners
constituting the firm.
Where there are several parties to a contract, they must
all, according to a strict rule of pleading, be made defend-
ants, and the absence of any one of them from the State, so
that process could not be served on him, would defeat the
plaintiff's action ; to avoid this, the Act of 1823, (6 Stat.,
212,) enables the plaintiff to sue all the parties remaining
in the State — the plaintiff setting forth in his declaration,
and proving at the trial, the absence of the party omitted.
The judgment in such case, however, is valid only against
the parties served with process.*
The writ must be served at least fifteen days before the
sitting of the Court. 2 Treadway, 631. In serving it, it
is not necessary that the Sheriff have with him the original
writ,b nor that the writ should have been filled out before it
was tested by the Clerk. Nor that it should have been
entered in the Sheriff's book. If properly filled out when
delivered to the Sheriff, the service of it is valid.0
Having shown the mode and maimer of serving the writ,
we come to the next clause: " You and each of you are
hereby commanded," the blank immediately following the
command, remains unfilled, if it is an original process. If,
however, a writ in the same cause had been issued to a pre-
ceding term of the Court, and the Sheriff had returned
upon it non est inventus, and a second writ, technically called
an alias, had to issue, the blank is filled with the words :
" as you have once already been commanded," if the alias writ
is returned non est inventus, and yet another writ technically
called a pluries, is to issue, the blank is filled with the
words : "as you have more than once already been commanded,"
and the alias or pluries process may be tested on any day
previous to the return day thereof.*1 See further as to alias
writs, Wilder vs. Grimke, 2 Brev., 261. Parker vs. Gray-
son, 1 K & McC, 171, and Boggs vs. Symmes, 8 Rich., 443.
a See the Act, 6 Stat., 212. c Miller vs. Hall, 2 Spear, 3.
b Wallace vs. Prince, 3 Rich., 178. d Moses vs. Blackwell, 9 Rich., 42.
10
The next blank is filled with the words, " to attach the
body of ," (the defendant); and care must be taken to
set forth in full, the Christian as well as the surname of
defendant, otherwise defendant may plead in abatement.
The mere initial letters of the Christian name are insuffi-
cient.'1 The middle name, if there be one, may be set out
by the initial letter, for in law a middle name is no name.b
If the liability of the defendant arises from a written agree-
ment, he may be sued by the name he signs to the con-
tract, as his signature would conclude him from denying
that it was his true name.0 If the action is against a
copartnership, set forth the full names of the several parties
composing the firm. If against a corporation, or parties
defending in autre droit, as executors or administrators, in
lieu of the words, "to attach the body of," the blank is
filled out, " to summon, &c." Setting forth the name by
which the company is incorporated, for a corporation can-
not be attached, and can only be made a party to a suit by
summons and distringas.* And whilst upon this part of the
process, it may be well to take a glance at the persons
who may be attached, or rather at the persons who are
exempt from being attached. They are embraced in three
classes :
1. Persons engaged in military duty under authority of
the State.
2. Persons attending Court as parties or witnesses.
3. Members of the Legislature.
Militia men and parties attending Court are exempt by
the 12th section of the Act of 1839, which provides that
" no Sheriff shall arrest by any process, other than such as
may issue for treason, felony, or misdemeanor, any person
who is engaged in the military service required by the laws
of this State, or going to, or returning from the same, or
MVilthaus vs. Ludecus, 5 Rich.. 326; Kinloch vs. Carsten, Ibid, 331; City
Council vs. King, 4 McC, 487.
bBull vs. Franklin, 2 Spear, 47, and see Norris vs. Graves, 4 Strob., 33.
cNorris vs. Graves. 4 Strob., 33.
d Glaize vs. So. Ca. R. R. Co., 1 Strob., 72.
11
who may be attending upon any Court of record as party,
witness, or otherwise, by order of Court, or while going to
or returning from the same, provided that any party may be
served with process at any time by delivery of a copy per-
sonally, or leaving the same at the most notorious place of
residence."* 11 Stat., 28. These two classes it is thus
seen, are only privileged from arrest, not from suit.
A greater exemption is accorded to members of the
Legislature, who cannot in any manner be sued, during
their attendance in the Legislature, or for ten days previous
and subsequent thereto. § 14, art. 1, of the constitution,
and Tillinghast vs. Carr, 4 McC, 152.
* After specifying the persons upon whom it is the duty of
the Sheriff to serve process, the writ proceeds to specify the
purpose for which they are to be brought into Court, viz :
"to answer to the plaintiff, (stating the full name of the
plaintiff in the same manner as above prescribed for
defendant,) in a plea," &c, according to the form of the
action.
The form in the conclusion of the writ, " Witness, A. B.,
Clerk of the Court," &c, has reference to the seal of the
Court and signature of the Clerk in the margin of the writ,
technically called the teste. Without such attestation no
writ is valid, even though accepted by defendant's attor-
ney. Smith vs. Assanassieffe, 2 Rich., 335. In the later
case of Wicker vs. Pope, 6 Rich., 366, the process was in
like manner without the seal of the Court or signature of
the Clerk ; judgment was had upon it and execution issued,
and defendant arrested, and the Court refused to set aside
the judgment, and ordered the Clerk to sign and seal the
process nunc pro tunc. The ground of the decision was,
that the defendant had by his subsequent conduct waived
the irregularity. Care should, however, be taken to avoid
the question by seeing that the writ is signed and sealed
#This Act apparently overrules the Act of 1794, 8 Stat., 489, and the cases of Greggs
vs. Summer, 1 McC, 461, and Hunter vs. Hunter, 1 Bail., 646; and the Act of 1791,
1 Faust., 44, and Huntingdon vs. Schultz, Harper, 452.
12
before it is delivered to the Sheriff. The official seal of the
Court is rarely used ; a wafer with the signature of the
Clerk is the usage, and the Courts in conformity to the
usage, have decided in Barton vs. Keith, 2 Hill, 537, that
such teste is sufficient.
The writ may now be considered complete and ready for
service, and is to be placed in the hands of the Sheriff, who
executes it in the manner already specified, and returns
to the Court the manner in which he has executed it,
whether by personal service, or by copy left. The return
must purport something capable of being understood with-
out evidence aliunde, and the letters N, E, I, have no mean-
ing. (Parker vs. Grayson, 1 K & McC, 171.) The'
return of the Sheriff is not, however, conclusive, and he
may be made to amend it upon proof of the facts. Whether
the return must be under oath or not, is not clear, and I
have been unable to find any case upon it. The Act of
1791, (7 Stat., 263,) commands the Sheriff "to make certain
return thereoff." The Act of 1839, (11 Stat., 28,) simply
commands him "to return" all process, &c. It is otherwise
with regard to executions ; for the Act of 1791, (7 Stat.,
264,) expressly commands the return to be on oath. The
cases of Graves ads. Belser, (1 N. & McC, 125,) and
Saunders vs. Bobo, (2 Bail., 492,) referred to in Miller's
Compilation, p. 203, as authority for the position that the
return of mesne process must be sworn to, are both cases
of final process.
The writ being duly served and returned, the next step
in the cause is to be taken by the defendant, who must enter
an appearance with the Clerk of the Court during the
sitting of the Court to which the writ is returnable, and
defendant is entitled to the last moment of the term to
enter his appearance. a Until appearance entered the
defendant is not in Court, and not entitled to plead,
although there may have been acceptance of service of the
writ, and plaintiff is entitled to proceed and file his dec-
a Act of 1791, 7 Stat., 263; Martin vs. Maloney, 1 Rich., 273.
13
laration and take judgment by default." If there is any
defect or irregularity in the writ to which the defendant
excepts, the proper plan is to make the objection at the
return term of the writ, by moving to set it aside ; and if
the motion is overruled the defendant can then appear and
plead ; but if the defendant postpones the motion until the
succeeding term and fails, he will not then be permitted to
appear and plead.b
The failure to appear, as has been said, precludes the
defendant from pleading ; when, however, it can be shown
on affidavit that the failure resulted from a mistake
between the defendant and his attorney,0 or from causes
beyond his control/ and that he has a good and legal
defence, he will be permitted to appear and plead ; but the
permission is only accorded where the cause has not yet
proceeded to final judgment, and is always granted on the
condition that the plaintiff is not delayed thereby.6 *
One copartner cannot authorize an appearance for an-
other/ and where one copartner appears and the other
makes default, the regular mode of proceeding is to go on
and get judgment for the whole debt against the one appear-
ing, and execute a writ of inquiry against the one making
default, for the whole debt also.g
The plaintiff next proceeds to file his declaration, " dur-
ing the sitting of the Court next after, the writ is returna-
ble, or at any time after until the next succeeding Court. "h
a Act of 1791, Donlevy & Co. vs. Cooper; 2 N. & McC, 548; Law vs. Duncan.
2 Brev., 263.
b Hanks vs. Ingraham, 2 Bail., 440.
c Williamson vs. Cuinming, 2 McC, 250; Wilkie vs. Walton, 2 Spear, 479.
d See Evans ads. Parr, 1 McC, 283.
e Scbroeder vs. Eason, 2 N. & McC, 292; Wilkie vs. Walton, 2 Spear, 479.
f Haslett vs. Street, 2 McC. 310 ; Loomis vs. Piearson, Harp., 470.
8 Simpson ads. Geddes, 2 Bay, 533.
h Act of 1791. 7 Stat., 263.
* The opinion of O'Neall, J., in the case of Barnes vs. Bell, 11 Rich., 20, apparently
confirms a dictum in Frean vs. Cruikshanks, 3 McC, 84, to the effect that an appear-
ance may be permitted after final judgment. It is, however, respectfully submit-
ted that the dictum is in direct opposition to the point decided in the cases of
Scbroeder vs. Eason, 2 N. * McC, and Wilkie vs. Walton, 2 Spear.
14
According to the construction of this Act in the Bank vs.
Torre, (2 Spear, 508,) by the return of the writ is meant,
not the appearance term, but the very day when the Sheriff'
is required to make return to the Clerk, which is of course
fifteen days before the sitting of the Court.* The plaintiff
thus has the appearance term, and uiitil the next succeed-
ing Court, within which to file his declaration. "If, how-
ever, he should not file his declaration before the first day
of the second term, after the return of the writ, he shall
not be permitted to file it afterwards without obtaining
leave to do so ; and he shall give four days' notice to the
adverse party of the time and place, when and where he
intends to move for leave, unless the motion is made in
open Court, in which case one day's notice shall be suffi-
cient." 67th Rule of Court. This leave for further time to
declare, can only be had, when moved for prior to the expi-
ration of a year and a day from the date of the return ; for
if the year and day expire before the declaration is filed
or further time granted, the plaintiff' is out of Court and
cannot afterwards obtain leave.b
If on the first day of the second term after the return of
the writ, the plaintiff has not filed his declaration, the
defendant may either then, or at any time within the year
and day, enter up judgment of nonpros., as of course, and
without order of Court or rule to declare.0 The judgment
of non pros, thus obtained, will, however, in the discretion
of the Court, be set aside on payment of costs, in order to
let in a trial on the merits, but the motion to set aside must
come at some time within which the plaintiff could obtain
leave for further time to declare.4
In general, a judgment of non pros, cannot be entered
up where no appearance has been entered, or where it has
been entered after the cause is out of Court.6
a See Martin vs. Maloney, 1 Rich., 273.
b Bank vs. Torre, 2 Spear, 509 ; Wright vs. Higginbottom, 1 N. & McC, 8.
c Smith vs. Lewis, 1 N. & McC, 3S ; Wright vs. Higginbottom, IN. i McC, 8.
d Bank vs Torre, 2 Spear, 509.
e Murphy vs. Sumner, 1 Hill, 221 ; Roderick vs. Payne, 1 McC, 408.
15
With the declaration should he filed "a copy of every
deed, bond or open account, or other writing declared on."
4th Mule of Court. This is technically called the hill of
particulars, and although the words of the rule call for a
"copy," the rule is complied with by filing the original.11
The bill of particulars forms, however, no part of the
record ; if it he not filed, the defendant may refuse to plead
until it is filed. If evidence is offered of demands not con-
tained in the bill of particulars, the evidence may be
objected to ; but where evidence is given which fully sus-
tains the count, it can be no ground for nonsuit that it does
not agree with that which is no part of the count.1'
The object of the bill of particulars is, as its name im-
ports, merely to specify and particularize that which in the
declaration is general and uncertain, and when the particu-
lars of the demand are disclosed in the declaration, as in
special assumpsit, covenant, debt on articles of agreement,
&c, a bill of particulars, as it can furnish no more definite
information, is needless.0 The omission to file it when it is
necessary, must be taken advantage of by special demurrer.'1
On filing the declaration in the Clerk's office, it is the
duty of the Clerk (where defendant has appeared) to post a
thirty day rule to plead ; but if the defendant has not
entered an appearance, no rule should be posted, as the non-
appearance would be thereby waived ;e but plaintiff" should
obtain from the Clerk an order for judgment by default,
and have the case placed on the Inquiry Docket/
If the defendant has duly entered his appearance, he
must file his plea at or before the expiration of the rule to
plead. The form of the plea will depend on the nature of
the action, and is to be regulated by the settled rules of
a Davis vs. Cosnahan, I Hill, 373.
b Davis vs. Hunt. 2 Bail.. 410: Edwards vs. Ford. 2 Bail.. 463; Gregg- vs. Vause,
8 Rich., 431.
c Long vs. Kinard, Harp., 47 ; Bailey vs. Wilson, 1 Bail., 15.
d Cregier vs. Sniythe, 1 Spear, 302.
e Perkins vs. Burton, 2 Brev., 97 ; Law vs. Duncan, Ibid. 263,
f Act of 1791. 7 Stat., 263. and cases in 2 Brev., above.
16
pleading, and does not fall within the limits of this sketch.
Upon filing it, the Clerk posts a ten day rale for plaintiff to
put in his replication. Should pleadings proceed further,
each party putting in a plea obtains a ten day rale, posted
by the Clerk as above, within which the opposite party must
tile his plea in response. (See 3d Rule of Court.) So too
whenever the plaintiff, by leave of Court adds a new count
to his declaration, he must post a new rule to plead.'1
If the defendant does not tile his plea within the thirty
days required by the rule, the plaintiff may enter up judg-
ment for default, and have the case placed on the Inquiry
Docket. The defendant may, however, on or before the
second day of the term next after such judgment is entered,
vacate the judgment on payment of costs — pleading an issu-
able plea, and submitting to such terms as the Court may
see tit to impose. b It must be borne in mind, however, that
to entitle the defendant to move to vacate the judgment by
default, he must have regularly appeared to the writ.0 Such
is the general rule, but where the omission has occurred by
mistake of counsel, the defendant is permitted to appear
and move to set aside the judgment ;d and that even after
the second day of the term.6
The judgment by default, it is thus seen, may be either
for default of appearance, or for default of plea; in either
event, the judgment being entered up (which is done by the
order of Clerk on the back of the declaration, no formal entry
up of judgment being necessary,) and the case placed on the
Inquiry Docket, it only remains for the plaintiff to estimate
his damages ; his right to recover is fixed by the judgment
by default, and the amount of recovery alone remains
doubtful.
If the suit is brought upon a liquidated demand — and
every demand is a liquiated demand where the amount
» 1 Hill, 421.
b 2d Rule of Court; Hare vs. Goodwyn, 2 Bay, 521.
c Shackelford ads. Smith, Rice Dig., Practice, No. 90.
d See Williamson vs. dimming, 2 McC, 250, and cases ante, page 13.
6 Sargent vs. Wilson, 2 McC, 512.
17
due is fixed and ascertained by some writing of the defend-
ant*— it is not necessary for the plaintiff to prove his
demand, or execute a writ of inquiry ; but upon motion,
the demand is referred to the Clerk to ascertain the sum
actually due, and judgment is entered up for the amount
so ascertained. b The opinion prevailed at one time in the
profession, that where the action was on a. penal bond, the
plaintiff was at liberty, on default of appearance, to enter
up final judgment and issue execution, inasmuch as there
were no damages to be assessed ;c but the case of Martin
vs. Maloney, 1 Rich., 273, has overruled that doctrine, and
the plaintiff must put the case on the Inquiry Docket, and
at the term succeeding the default, move for leave to enter
up final judgment, without reference to the Clerk, or execu-
tion of writ of inquiry, and this is granted by the Judge's
entry on the Docket. "Judgment final."
AVhere, however, the demand is unliquidated, it is then
necessary for the plaintiff to execute a writ of inquiry, but,
unlike the English practice, there is with us no writ issued ;
but the case being upon the Inquiry Docket as already
explained, is upon the call of the Docket, executed by
the jury in attendance. The plaintiff must confine him-
self in his proof to the case stated in his declaration. d
The defendant is restricted to evidence in mitigation of
damages, and cannot introduce evidence in discharge of the
action or of pa}Tments or other discounts.6 In other words,
he can contest the amount of the debt, but not the debt
itself, and the jury are bound to find some damages for the
plaintiff — they can never find for the defendant/
Having departed from the regular course of the suit to
glance at the practice where the defendant fails to appear,
or appearing, fails to plead, it is necessary, before resum-
» Wilkie vs. Walton, 2 Spear, 477.
b Act of 1809, 7 Stat., 308; The Bank vs. Vaughan, 2 Hill, 556.
c See Dawkins, et. al., vs. Vaughan, 1 McC, 554.
d Mathews vs. Sims, 2 Mills, 103.
e Covington vs. Rogers, 2 Bail, 407.
f Reigne vs. Dewees, 2 Bay, 405; Parsons vs. Cain, 1 Mills, 196; 2 Ibid, 58.
18
ing, to note a few matters of general occurrence in the pro-
gress of a cause. The defendant may, in reply to the
plaintiff's claim wish to rely upon several matters in his
defence. At common law, this could not have been done,
but by the Stat., 4 Ann, c. 16, § 4, of force in this State, the
defendant in any action, may, with the leave of the Court,
plead as many several matters thereto as he shall think
necessary for his defence. The motion for leave to plead
double must be made sedente curia* and the Court in its
discretion, may grant leave to plead double any time, pro-
vided it does not operate a surprise upon the plaintiff ;b but
the proper time to obtain leave is the first Court after the
filing of the declaration.0 It seems that leave will not be
granted at any subsequent Court, unless the cause had
been previously continued over to the succeeding term, nor
even then without giving notice to the adverse party to
show cause to the contrary.*1 As the proper time to
obtain leave is the first term after the filing of the declara-
tion, and as to entitle the case to be heard, the pleadings
must be made up, and the case docketed, before the Court
meets, (See Rules of Court, 17-20,) it will doubtless occur
to the student that there is some embarrassment in the
matter, and that in order to plead double, one term viz:
the term at which the motion for leave is made, must be
lost ; but as said by Judge Johnson in Richardson vs.
"Whitfield, 2 McC, 150, the defendant has the right to
plead as many matters in his defence as his case permits,
subject to two limitations —
" 1st. That they shall not involve the ridiculous absur-
dity of being inconsistent, and
2d. That they shall not operate as a surprise on the
plaintiff, by being made at the moment of trial. *****
Within these limitations the Court has no control over the
right, and the whole object of applying for leave to plead
a Fraser ads. McLeod, 2 Bay, 407.
b Holter vs. Lewis & Pepoon, 1 McC, 12 ; Stewart vs. McCully, 5 Rich., 83.
c Miller vs. Fisk, 1 McC, 50.
d Miller vs. Fisk, 1 McC, 60.
19
double is to preserve them, so that in truth the tiling of
consistent double pleas, so far as their merit is con-
cerned, is a mere motion of course, which only requires
the signature of counsel." The practice is to file the
double pleas before the expiration of the rule to plead.
The defendant, after pleading the general issue or other
plea, setting forth "And the said defendant, for a further
plea in this behalf, by leave of the Court first had and
obtained, says," &c. Notice is thus brought home to the
plaintiff' of the defence the defendant relies on, and the
motion for leave may be made at the ensuing Court, " so
as to protect the pleas already filed from the objection that
they had been filed without leave of the Court. "a With
regard to what are inconsistent pleas, it is difficult to
lay down positively any rule, for since non est factum and
'performance, not guilty and liberum tenementum, may be
pleaded together as consistent, the distinction between con-
sistency and inconsistency savors very much of " the palpa-
ble obscure."
If the defendant has any demands against the plaintitf,
embraced within the provision of the Discount Act of
1759, (4 Stat., 76,) and intends to rely upon them at the
trial as an offset to the plaintiff's claim, they need not be
pleaded, but may be given in evidence under the general
issue, the defendant giving to the plaintiff, or his attorney,
twelve days' notice, in writing, of his intention, and a copy
of the accounts, matters or things that he intends to insist
upon as a discount. Or the defendant may admit the jus-
tice of the part of the plaintiff's claim, and dispute the bal-
ance. In such case, it is proper to obtain, on motion, at
the return term of the writ, an order of Court, granting
leave to the defendant to pay into Court the amount he
admits to be due, together with the costs accrued up to that
time. The order being granted, the money is paid to the
Clerk and his receipt taken, and the plaintiff, if he prose-
cutes the suit for the balance, and fails, is liable for all the
costs of the suit subsequent to the payment of the money."
* 2 McC, 150, and Stewart vs. McCuIly, 5 Rich., SO.
20
Resuming our sketch of the progress of a suit, we come
to the trial. The issue having been made up, and the case
docketed, as already noted, it is ready for trial ; but it may
happen that when the case is called, either the plaintiff or
defendant may be unprepared, and seek for a postponement
or continuance of it until the next term.b This is obtained
by motion ; the granting or refusing of which is a matter
altogether within the discretion of the presiding Judge.
Where the continuance is moved for, because of the
absence of a material witness, the motion must be sup-
ported by affidavit, setting forth that the testimony of the
witness will be material to support the action or defence of
the party moving ; that he cannot go safely to trial without
such testimony, and that his motion is not intended for
delay, and that he has used due diligence to procure the
attendance of the witness, and if a subpoena has been
issued, the original shall be produced, with proof of ser-
vice, or reason for nonservice, (23d Rule of Court.) There
is nothing said as to who shall make the affidavit, but it
should properly be made by the party himself, or his attor-
ney in fact. Cases may occur in which the counsel in the
cause must, of necessity, make the affidavit, but as a gen-
eral rule, counsel should confine themselves to their legiti-
mate duties of preparing and arguing the case, and leave
all statements of facts to be made by the parties to the
record, or the witnesses in the cause.
The rule, it will be observed, requires that the party
moving for a continuance, shall set forth in his affidavit
that he has used due diligence to procure the attendance of
the witness, and it seems to be the settled doctrine that
due diligence has not been used where the witness has not
been subpoenaed.0 If the motion for a continuance on the
ground of the absence of a witness is made after the first
a Broughton vs. Richardson, 2 Rich., 64.
b Price ads. Justrobe, Harp., Ill; Ordinary vs. Robinson, 1 Bail., 25; Hunter vs.
Glenn, 2 Bail., 542 ; Hort vs. Jones, 2 Bay, 440.
c Bone vs. Hillan, 1 Mills, 197 ; Sheppard vs. Lark, 2 Bail., 576.
21
term, the party moving, in addition to the above requisites,
must set forth in his affidavit what he believes the witness
will prove, (25th Rule of Court.) The presiding Judge is
not, however, bound to grant a continuance at any time —
even where the requisitions of the 23d Rule have been com-
plied with — it still remains in his discretion.11 Opposed to
continuance is discontinuance, which is the act of the plain-
tiff, and is a letting fall of the action either as to one or all
of the parties sued. Where the contract is joint and several,
the plaintiff, although he has issued his writ against all the
parties to it, may at any time discontinue as to one, and pro-
ceed to judgment against the other ;b but this must be done
by leave of the Court.0 So, too, when there are several
plaintiffs, the Court may, in its discretion, give leave to one
or more of them to amend the declaration, by striking out
his or their names from the declaration, where it appears
that they have no interest in the cause. d A discontinuance
may also occur where the plaintiff has allowed too long a
time to elapse between any of the stages of his pleadings,
but every order entered in a cause is such a continuance of
it that the party cannot be held to have let fall his action
until a year and a day has elapsed from the entry of the
last order.6
If none of these collateral proceedings are adopted, but
the parties are ready, and intend to try the issue, it is
necessary then to have the evidence upon which they rely,
in readiness before the Court. The evidence must of
necessity be either written or oral, for under one or the
other of these two classes must all the instruments of evi-
dence fall. If the evidence is written, and the party is in
possession of the original document, it is only necessary to
produce it, together with such proof as is necessary to
a State vs. Thomas, 8 Rich., 295.
b Karck vs. Avinger, 3 Hill, 217.
c Fitch vs. Hcise, Cheves, 185 ; Bomar vs. Williams, 2 Rich., 12 ; Lamar, Daniel
vs. Reed, 2 McM., 347 ; Freeman vs. Clark, 3 Strob., 282.
d Harkins vs. Lcrrix, 2 N. & McC, HI.
e Perry vs. Aiken, 3 Rich., 60.
22
establish its validity and genuineness. If a record, and of
the Court in which the trial is had, this is done by calling
the Clerk of the Court from whose custody the record is
taken. If the record is of another Court, then, as the ori-
ginal cannot be taken out of the office in which it is filed,
an exemplification of it under the seal of the Court is
admissible. If the written evidence consists of a deed, its
validity is proved by the subscribing witnesses.
If the original, however, is not in the possession of the
party, but in the possession of the adverse party, the latter
may be compelled, on reasonable notice given in writing, to
produce it at the trial, or admit secondary evidence of its
contents. What is reasonable notice must be regulated by
the circumstances of the case.a If secondary evidence will
not serve the purposes of the party calling for the original,
or is not attainable, a resort to equity by bill of discovery
will procure the production of the document.
If the document sought for is in the possession of a third
party, he may be compelled to produce it by serving him
with a subpmna duces tecum, by which he is commanded to
bring into Court the deed or paper wished for, and the
party issuing such subpoena is entitled to have a return
made to it before he can be compelled to enter upon the
trial of his cause. b If, however, the deed is lost, then, on
proof of the loss of the original, a certified copy from the
record in the register's office is admissible in evidence.0
What is sufficient proof of loss must in general depend on
the circumstances of each particular case, but in general it
is only necessary to show that the deed or paper has been
diligently sought for, where it might be expected to be
found, or was usually kept, and that it could not be found.d
Where the deed is duly proved before a Justice of the
Peace, and recorded, no further proof of its existence or
a Reynolds vs. Quattlebum, 2 Rich., 145.
b Treasurers vs. Moore, 2 Tread., 755.
0 Act of 1731, 3 Stat., 303; Purvis vs. Robinson, 1 Bay, 493; Dingle vs. Bow-
man, 1 McC, 177 ; Act of 1843, 11 Stat., 255.
d Peay vs. Pickett, 3 McC, 322; Floyd vs. Mintsey, 5 Rich., 372.
23
execution is needed: proof of the loss is alone necessary to
the introduction of the copy.a
If the matters relied on are to be established by oral
evidence, the witnesses who are to testify to the facts, must
be served with subpoena, commanding them to attend at the
Court on the day specified in the subpoena. Not more than
four witnesses should be included in any one subpoena writ ;
and subpoena tickets filled out and addressed to each of the
witnesses named in the writ, should be handed to the
Sheriff", together with the writ ; and a witness failing to
obey a subpoena, without sufficient excuse, is guilty of a
contempt, and may be punished by fine and imprisonment.11
If the witness reside without the limits of the district, or
more than thirty miles from the Court House, where the trial
is to be had, or is about to remove without the limits of the
State before the sitting of the next Court, or his presence
cannot be procured by reason of indispensable attendance
on some public, official, or professional duty, or of such
sickness or infirmity as incapacitates him from travel, he
may be examined by commission issuing from the Clerk of
the Common Pleas, and under the seal of the Court, and
directed to three or more commissioners, authorizing them
or any two of them to take the deposition of the witness
unable to attend.0 The practice in obtaining the commis-
sion is as follows : A copy of the interrogatories to be pro-
pounded to the witness, is served upon the adverse party to
the suit, or his attorney accompanied by written notice that
in ten days application will be made to the Clerk of
Court for a commission. It is customary to furnish the
adverse party at the same time with the names of the par-
ties selected as commissioners, so as to enable him to object
to them if necessary. The notice must be served person-
ally on the party or Ids attorney ; leaving a copy in analogy
to service of process, is not sufficient.11 To the inter-
» McLeod vs. Rogers, 2 Rich , 21 ; Darby vs. Huffman, Ibid., 533.
b Johnson vs. Wideman, Dudley, 71
c Act of 1839, 11 Stat., 75.
d Gooday vs. Codies, 1 Strob., 201.
24
rogatories thus served, the adverse party puts in cross
interrogatories, furnishing at the same time the names of
the commissioners, selected by him.a At the expiration of
the ten days the party seeking the commission makes
application to the Clerk accompanying it by affidavit as to
the materiality of the witness and the reasons why his
attendance cannot be obtained, and by proof that the
adverse party has had the requisite notice.b The adverse
party lias the right to show cause before the Clerk why the
application should not be granted. But this right is
limited, it is presumed, to contesting the facts set forth in the
affidavit, or the competency of the commissioners, for if
the objection touches the competency of the witness or the
relevancy or admissibility of the questions propounded,
the objection is properly made when the commission conies
to be read at the trial. It is proper, however, when either
party objects to the questions propounded by his adversary,
that the objection be noted at the time on the interroga-
tories.0 The commission being granted and signed and
sealed by the Clerk, the interrogatories, cross interroga-
tories and interrogatories in reply, together with all such
papers as are to be read to the witness, or are referred to
in the interrogatories, are to be attached to the commission,
which is then ready to be sent forward to the commissioners.
Notwithstanding, however, the issuing, execution and
return of the commission, if it is found that the witness
examined is within the district or nor more than thirty
miles from the Court House where the trial is to be had,
either party may, on two days' notice given, obtain a rule to
compel his personal attendance.'1
With regard to the mode of executing the commission,
the printed instructions endorsed on the commission are so
full and accurate that little need be said. The commission
should be executed by at least two of the commissioners,
although it seems by the case of Mosely vs. Graydon, 4
a Dogan vs. Ashby, 1 Strob., 436. ° Teague vs. S. C. R. R. Co., 8 Rich., 155.
b Gooday vs. Corlies, 1 Strob., 201. * Act of 1839, 11 Stat., page 75.
25
Strob., 7, that a commission may under peculiar circum-
stances be validly executed by one ; but since the case of
Dogan vs. Ashby, 1 Strob., 436, directing the Clerk to see
that commissioners representing each party are named in
the commission, no difficulty can arise except from the
default of one of the parties to the suit.
If the commission is to be executed in a foreign country,
and the answers to the questions are in a foreign language,
it is advisable that a sworn translation of the answers accom-
pany the return of the commission, simply as a test of the
translation made by the interpreter before the Court."
When commissions issue from any Court of any other of
the United States, or from any Court in this State, to
examine a witness, the commissioners in order to obtain
the attendance of the witness before them, shall produce
the commission to a Judge of the Supreme or County
Court, who, on being satisfied of its regularity and authenti-
city, shall direct a subpmia to issue from the Clerk's office
of the nearest Court of Common Pleas, recpiiring the wit-
ness to attend before the commissioners at a certain time,
and at some place not exceeding fifteen miles from the res-
idence of the witness, and the subpoena shall be served on
the witness personally at least two days before the time at
which he is required to attend, and if the witness fails to
attend, or attending, refuses to answer, an attachment
against him for contempt may be had from the Courts, and
he shall be liable in like manner as a witness subpoenaed
and refusing to attend a Court of record of the State.*
What process the commissioners may employ to procure
the attendance of the witnesses when the commission
issues from Great Britain or any of the Continental States,
does not appear. No provision being made for such cases,
as far as I can perceive.
The evidence being in Court, and the case called, the
plaintiff opens his case by briefly stating to the Court and
jury the matters complained of, his legal rights in the case,
• Kuhtman vs. Brown & Goldsmith, 4 Rich., 479. b Act of 1794, 5 Stat., 248.
26
and the facts lie relies on to sustain them ; and lie then
introduces his testimony producing in the first instance,
everything material to support his case. The defendant
next offers all his evidence in defence and the plaintiff
replies, introducing no new matter, but simply restricting
himself to the introduction of evidence to meet the case
made by the defendant's testimony.1
If at the close of the plaintiff's case he has not proved
his cause of action and right to redress, the defendant's
counsel, in lieu of introducing evidence, may move for a
nonsuit ; or the plaintiff's counsel, if himself satisfied that
he has failed to make out his case, may voluntarily sub-
mit to a nonsuit so as to prevent the defendant from taking
a verdict, the effect of which would be to conclude the
matter. A nonsuit merely puts a stop to the present pro-
ceeding, leaving the plaintiff at full liberty to begin de novo.
The Court, however, proceed with great caution in grant-
ing a nonsuit in invitum,} If the plaintiff omits to call a
witness present in Court to testify to a fact necessary to
maintain the action, either through accident or an impres-
sion that formal evidence of that fact is not essential, it is
in the discretion of the Court to permit him to introduce it
even though a nonsuit has been moved for, argued and
determined against him.0 After the defendant has submit-
ted his case to a jury, by giving evidence and permitting
them to retire, he cannot then move for a nonsuit ;d but a
plaintiff may at any time before the jury have published
their verdict, abandon his case and submit to nonsuit.6
Questions sometimes arise at the trial as to who is enti-
tled to the reply in argument. The legitimate scope and
object of a reply is to answer the argument of the adverse
counsel ; but under the latitude permitted by our Courts,
a Caldwell vs. Wilson, 2 Spear, 79; Clinton vs. MeKenzie, 5 Strob., 41.
b Roger vs. Madden, 2 Bail., 322.
c Campbell vs. Ingraham, 1 Mills, 293; Browning vs. Iluff, 2 Bail., 171; Poole
vs. Mitcbell, 1 Hill, 404.
d MeEwen, vs. Mazyck & Bell, 3 Rich., 215.
e Lawrin vs. Hanks, 3 McC, 558.
27
the reply has none of the characteristics of a reply, hut is
in effect the leading speech in the cause, which the adverse
counsel can neither anticipate nor reply to. This marked
difference between the English practice and ours, as to the
limits of a reply, has materially enhanced its value with us,
and sacrifices are made to obtain it, which not unfrequently
hazard the success of the cause. The general rule is, that
if the defendant introduce evidence, the plaintiff is entitled
as of right to the reply, and calling back plaintiff's wit-
ness, or offering and reading in evidence a letter, the hand-
writing of which is admitted, is such an introduction of evi-
dence, as destroys defendant's right to the reply, (Hagood
vs. Cathcart, Rice, 264 ; Hamilton vs. Feemster, 4 Rich.,
576.) If the defendant introduces no evidence, or admit
the plaintiff's case, and takes upon himself the burthen of
proof, he is then entitled to open and reply ;a but the admis-
sion of plaintiff's right of action must be entered upon the
record.1' When there are several issues, some of which are
to be proved by the plaintiff, and others by the defendant,
the plaintiff is entitled to the general reply, both in evi-
dence and argument.0
The case having been argued and submitted to the jury,
and verdict found and published, it only remains in order to
complete the proceedings, to enter up the judgment. This
is done on the rising of the Court, see 11th Rule of Court.
The object of this rule is to equalize the liens of all judg-
ments obtained at the same term, and to prevent chance or
the accidental position of a case on the docket from giving
a priority of lien. The rule only applies to cases where the
judgment of the Court has been had, for if the defendant has
confessed judgment, whether in term time or in vacation,
the plaintiff may enter up judgment, and issue execution
immediately ; it is immaterial whether the case on which
judgment is confessed is on the docket, or not.d
a 62d Rule of Court.
b Gray vs. Cottrell, 1 Hill, 38; Johnson vs. Wideman, Dudley, 326; See also
Moses vs. Gatewood, 5 Rich., 234.
B Anonymous, 1 Hill, 257.
a Bank vs. Magrath, 2 Spear, 305.
28
If the judgment is not entered up at the rising of the
Court, as provided for in the 11th Rule, it may be entered up
on or before the last day of the term next succeeding, (Rule
10,) and the entry of the judgment thus made, relates back
to the term at which the judgment was had, and as between
the parties is considered as if made during that term ; as
between judgment creditors of the defendant, the judgment
takes effect from the date of the entry.* If the judgment
is not entered up before the expiration of the second term,
it cannot afterwards be entered up without giving a term's
notice to the adverse party, or his attorney of his intention
so to do.b
If the action is on a penal Bond the judgment is entered
up for penalty, and the execution following the judg-
ment expresses the same sum ; there is endorsed, how-
ever, on the execution a memorandum showing the true
amount due on the bond. In all other cases the judg-
ment is entered up for the amount found to be due by the
verdict of the jury, or the assessment of the Clerk.
It is proper here to advert to the practice, in case either
party dies pending the suit, and
1st. Where the death occurs 'prior to interlocutory judgment
had. If the action is by a sole plaintiff, or against a sole
defendant, the action abates by the death ; but if the cause
of action survives, the action may be brought by or against
the personal representatives of the deceased. But where
there are two or more plaintiffs or defendants, and one or
more of them die, if the cause of action survive to the sur-
viving plaintiff, or against the surviving defendants, the
action shall not abate, but the death being suggested on
the record, the suit may proceed for or against the
survivors.0
2d. Where the death occurs after interlocutory judgment, but
before assessment of damages. If the action could have been
■ See Dibble vs. Taylor, 2 Spear, 312: Miller & Leckie vs. Jones, 2 Rich., 393.
b 10th Rule of Court.
c Act of 1746, 7 Stat., 193; Boylston vs. Cordes, 4 McC, 144; Chapman vs.
Mary ant, 2 Spear, 485.
29
originally prosecuted by or against the executor or adminis-
trators of the deceased, the action shall not abate, but a
sci. fa. shall be issued by or against the personal represen-
tatives of the deceased, to show cause why the damages
should not be assessed and recovered ; and if the defendant
or his representatives, (as the case may be) do not appear,
two successive writs of sci, fa. being issued, or appearing,
fail to show cause, a writ of inquiry shall be awarded and
executed, and final judgment entered up,a for or against the
executors or administrators themselves, and not for or
against the original parties. The object of the sci. fa.
being to make the representatives, parties to the suit, in the
place of their decedent.''
The interlocutory judgment spoken of in the Act of
1746, means nothing more than the order for judgment on
default either of appearance or plea.c It may be well to
note that the final judgment entered up as above stated,
does not rank as a judgment in the administration of the
deceased's estate, for the debts of the deceased are to be paid
according to the rank which they occupied at his death, and
an interlocutory judgment not being a judgment, but merely
an authority to have the plaintiff's damages assessed, must
be placed in the rank which it occupies as a cause of action,
not yet come to judgment/
After entering up the judgment, and before issuing exe-
cution, a second sci. fa. is necessary to give the executors or
administrators an opportunity to plead no assets, or other
matter, in their defence.6
. 3d. Where either 'party dies after assessment of damages, and
before final judgment entered. In such case, no sci. fa. is
necessary, for as soon as the verdict has been rendered, writ
of inquiry executed, assessment made by the Clerk, judg-
ment upon demurrer or decree in sum. pro. pronounced, the
» Act of 1746, 7 Stat,, 193.
b Thomas vs. McElwee, 3 Strob., 133 ; Godbold vs. Gordon, 11 Rich., 36.
• Duboso vs. Dubose, Cheves 30; Kincaidvs. Blake, 1 Bail, 20.
d Thomas vs. McElwee, 3 Strob., 135.
e Dibble vs. Taylor, 2 Spear, 313.
30
final consideration of the Court has been had, and nothing
remains but the formal entry of the judgment which is
made, as if the party were alive. a The judgment may be
entered up at any time during the vacation, and since our
Rule of Court (11), prescribing the last day of the term as
the day of entry of judgments, in lieu of the first, as by
the English practice, the vacation doubtless extends to the
last day of the term following the final order, and during
such vacation, no sci. fa. is necessary to have execution
against the defendant.b If the plaintiff allow the vacation
to pass without entering up the judgment, he cannot after-
wards enter it up and issue execution without first serving a
sci. fa. upon the executors or administrators, to show cause
why execution should not issue — for by the lapse of time,
the execution cannot be tested as in the lifetime of the
defendant — and where execution must bear test as of a day
subsequent to the date of defendant's death, then sci. fa. is
necessary to its issuing. It is only when the execution may
be tested as in the lifetime of defendant that a sci. fa. is
unnecessary.0
4th. Where either party dies after final judgment entered, up,
but before execution issued. The only question that can arise
is as to the issuing of the execution, and that will be gov-
erned by the rules already prescribed for the entry of judg-
ment, when the party dies after assessment of damages, and
before final judgment entered.
If either party is dissatisfied with the verdict of the jury,
or the ruling of the Judge, he is entitled to an appeal which
is secured by serving the Judge and opposite counsel on the
day after the decision of the cause, with a notice of the
grounds on which he appeals, but the successful party is at
liberty, notwithstanding the appeal, to enter up judgment
and lodge execution to bind the property. Rules of Court
64 and 77.
a Dibble vs. Taylor, 2 Spear, 312; Miller &, Leckie vs. Jones, Ibid., 319.
b Dibble vs. Taylor, 2 Spear, 314, overruling Verdicr vs. Fishburne, 1 Spear,
348.
« Ibid.
31
The 8 § of the Act of 1856, (12 Stat., 489,) passed for the
purpose of preventing frivolous appeals, allows the appeal to
operate as a stay of execution, only in cases where the Judge
grants an order for the stay of execution, or the appellant
gives bond. This Act only applies, however, to Charleston
district.
Somewhat has already been said as to execution under
certain circumstances, but the general practice as to the
issuing and renewal of executions, remains to be treated of.
At common law, the plaintiff could not issue his execution
after the expiration of a year and a day from the signing of
the judgment, without reviving the judgment by set. fa.; but
by our Acts of 1815, 6 Stat., 5 ; and 1827, 6 Stat., 324, it is
provided that execution can issue at any time within three
years next after the signing or enrolment of the judgment,
and has active energy without renewal, from the time it is
lodged until the regular term of the Court, which shall
follow next after the full completion of four years from its
lodgment. At any time within those four years, it may be
renewed without costs, and at any time within three years
from the expiration of its active energy, it may be renewed
for four years longer, on payment of costs of renewal/ The
plaintiff is not restricted to the renewal of the execution first
sued out, but may issue a ca. sa. as a renewal of nji.fa., or
vice versa.1' It is, however, provided by the Act of 1839, (11
Stat., 76, § 19,) that the Clerk shall not affix the seal of the
Court to any renewed execution, unless the one previously
issued, shall have been delivered up, or unless authorized so
to do by a Judge's order.
It may happen that the defendant does not reside or own
property in the district in which the judgment is rendered;
in that case the execution, instead of being delivered to the
Sheriff of the district in which the judgment is had, should
be sent to the Sheriff of the district in which defendant
resides, or his property is to be found, and is executed by
a See Ancrum vs. Sloan, 1 Rich., 421 ; Carlton vs. Felder, 6 Rich. Eq., 66.
b Robertson vs. Shannon, 2 Strob., 434 ; Douglas vs. Owens, 5 Rich., 534.
32
the Sheriff of that district who makes his return to the
Court whence the process issued, (Act of 1799, 7 Stat., 294 ;
Act of 1785, 7 Stat., 230 ; Rule 12,) for as has already been
seen, process of the Superior Court of the State runs through-
out the State.
The plaintiff has his election to issue fi. fa. or ca. sa., or
both together ; if he elects to issue only one of them, he can-
not until the return of that execution, issue the other.* If
both are taken out together, the Sheriff may proceed suc-
cessively on both, and he need not return a partial levy on the
ji. fa., before proceeding on the ca. sa. ; but as soon as it is
ascertained that the levy is insufficient, the Sheriff may
either make a further levy, or execute the ca. sa} So, too,
an arrest under a ca. sa. is prima facie a satisfaction of the
debt, and suspends the lien of the^. fa. pro. tern.; but if the
defendant dies or escapes, the lien of the fi. fa. is thereby
revived.0
But it may happen that the plaintiff is unwilling to press
his debtor, but at the same time is desirous of preserving his
lien and its priority ; in such case it is proper to lodge the
execution (fi. fa.) with the Sheriff, endorsing on it the words
"wait orders," or "to bind." The endorsement only sus-
pends the active energy of the execution, and does not affect
its lien ; and if a levy is made under a junior execution, the
proceeds will go to the older execution, notwithstanding the
suspension of its active energy.*1
SUM. PRO.
To entitle a writ to issue, the cause of action must exceed
£20, equivalent to $85 71. For the recovery of that amount,
'Jenkins vs. Mayrant, 3 McC, 560; State vs. Guignard, 1 McC, 176.
b Mazyck & Bell vs. Coil, 2 Bail, 101.
0 Mazyck & Bell vs. Coil, 3 Rich., 236 ; Sanders vs. McCool, 1 Strob., 22.
d Vance vs. Red, 2 Spear, 92; Cooper vs. Scott, 2 McM., 155; Gleenwood vs. Nay-
lor, 1 McC, 414.
33
or any sum under that, and above $20, the remedy is by sum-
mary process, according to the Act of 1768, 7 Stat., 200,
which provides "that it may be lawful for the Judges in said
Courts, or any of them to determine without a jury in a
summary way, on petition, all disputes cognizable in said
Courts, for any sum not exceeding X20 sterling, except
where the title of lands may come in question." The Act
further provides for a trial by jury, when demanded by
either party, and that the petition shall contain " the plain-
tiff's charge or demand plainly and distinctly set forth, a true
copy whereof shall be served on the defendant." The prac-
tice in sum. pro. differs but little from cases commenced by
writ. Some few matters, however, require notice, and I shall
allude to them in order, as they regard the jurisdiction, the
pleadings, the interrogatories, and the judgment. The juris-
diction, as has been seen, comprises all sums over $20, and
up to $85 71, inclusive. If the cause of action exceeds this
last mentioned sum, the Court cannot entertain jurisdiction
of it, and plaintiff cannot release part of his debt, or the
defendant part of his discount, in order to bring the amount
due within the sum, pro. jurisdiction of the Court.a It is
immaterial whether the excess is caused by the amount of
the demand, or by the interest accruing on it ; it is in either
event beyond the jurisdiction.15 Where, however, the plain-
tiff sues on a note originally within the jurisdiction, but the
interest accruing since the commencement of the suit swells
it beyond the jurisdiction, the plaintiff may either take judg-
ment to the extent of the jurisdiction, or he may declare, and
transfer the cause to the general jurisdiction.0 If the suit is
on a note or other cause of action, originally beyond the
jurisdiction, but reduced within it by payments or credits, it
is for the defendant to show that the receipts or credits are
colorable.* If the action is on a bond, and the condition is
within the sum. pro. jurisdiction, the plaintiff may sue on
a Simpson vs. McMillion, 1 N. & McC, 192 ; Bents vs. Graves, 3 McC, 280.
» 1 N. & McC, 192.
0 Gracy & Co. vs. Wright, 2 McC, 278 ; Taylor vs. Purvis, 1 Hill, 373.
« Fiske ads. Guerard, 2 MeC.,11; Taylor vs. Purvis, 1 Hill, 373.
3
34
the condition, notwithstanding 'the penalty exceeds the juris-
diction ; a so, too, where the action is on an official bond, and
the damages laid are within the jurisdiction, the suit may he
brought by summary process, regardless of the penalty.b If
the defendant in sum. pro. has a discount which exceeds the
summary jurisdiction, the Court on being satisfied of the
merits, will order the plaintiff to declare in the higher juris-
diction, to enable the defendant to set up his discount ; c but
the Court will not make the order, unless injustice would be
done by refusing the motion, or the law prohibits the dis-
count set up from being tried in that jurisdiction, as e. g.,
where the discount involves the title to land, which by the
Act is exempted from sum. pro. jurisdiction."1
The plaintiff in sum. pro. may insert in his petition
several counts upon the same cause of action, and it is
immaterial that the aggregate amounts exceed the jurisdic-
tion, provided no single count does, but if evidence is given
of a debt beyond the jurisdiction, the plaintiff must fail.6
So, too, the plaintiff may join in the same petition several
distinct causes of action of the same nature, provided the
aggregate does not exceed the sum. pro. jurisdiction.
Where the plaintiff's demand has been reduced below the
sum. pro. jurisdiction by discounts, or by payments made
after suit commenced, the practice is to give a decree for the
balance due/ In all other cases ex contractu, if the debt. is
reduced below the sum. pro. jurisdiction, a nonsuit should
be ordered by the Circuit Court.8
The Act, it will be observed, simply requires that the
"Petition shall contain the plaintiff's charge or demand,
a Lynch vs. Crocker, 2 Bail., 313.
b Treasurers vs. Walker, 2 Hill, 629.
0 Beckham & Eckles vs. Peay, 1 Bail., 121.
d Executors of Lindsay vs. Lindsay, 1 McC, 490; Simpson ads. Kuox, 2 Spear,
632.
e Lee vs. Foot, 2 Bail., 112.
f Steamer St. Matthews vs. Mordecai, 1 McM., 296 ; Vaughan vs. Cade, 2 Rich.,
49 ; Caldwell vs. Garmany, 3 Hill, 203.
s Owens vs. Curry, 3 Strob., 262, overruling Vaughan vs. Cade, 2 Rich., 49;
Goodwin vs. Lake, 2 Rich., 565, and other cases authorizing verdict for defendant
under similar circumstances.
35
plainly and distinctly set forth," and technical precision is
not necessary ; it is essential, however, that the cause of
action should be set out with sufficient certainty to prevent
a surprise on the defendant ; a and as a copy of every deed,
bond, open account, or other writing declared on, must be
annexed to, or endorsed not only on the original petition,
but also on the copy served on defendant,11 a very slight
degree of attention will prevent uncertainty in the statement
of the cause of action. If the body of the process sets forth
the cause of action, specifically, no copy or bill of particu-
lars need be added.0
If the suit is against an endorser, it is sufficient to state
that the defendant is indebted as endorser, and a formal
averment of demand on, and refusal by the maker, and
notice to the endorser is unnecessary. d If on a former judg-
ment, or on a foreign judgment, the plaintiff must annex a
copy of the judgment both on the original and the copy
petition.6
If the plaintiff relies on a specific promise distinct from a
general assumpsit, he must set it forth in his process or evi-
dence of it cannot be admitted/ So, too, if there is a
special defence to the action, it must be specially pleaded,
for notwithstanding the latitude allowed in the sum. jwo.
jurisdiction, special matters of defence cannot be given in
evidence under the general issue.8
The distinctive feature of the sum. pro. jurisdiction is the
right which either party has to purge the conscience of his
adversary by a short-hand bill of discovery. The 34th Rule
of Court provides that " if the plaintiff shall desire to have
the benefit of the defendant's oath, he shall state in writing
the points to which he shall require his oath, and serve him
with a copy thereof, with notice of such intention, at least
n Parker vs. Martin, 1 Bail., 138.
*> 35th Rule of Court.
c Hagood vs. Mitchell, 1 Bail., 124.
d Hilburn vs. Paysinger, 1 Bail., 97.
e Bailey vs. Wilson, 1 Bail., 15; Parker vs. Martin, Ibid, 138.
f McDaniel vs. Scoggins, 2 Mills, 227.
« Bailey vs. Wilson, 1 Bail., 15.
36
one day before the hearing of the cause, and the defendant
may either give his answer in writing, sworn to before the
Clerk, or ore terms in open Court. And if a defendant shall
desire the benefit of the plaintiff's oath, he shall proceed to
require it in the same manner." If either party is absent
from the State, and his evidence is material, the Court will
grant a term's delay, that a commission may issue to exam-
ine him.
The Rule once was as laid down in Wallace k Welbourn
vs. Norrell, 1 Bail., 125, that a party in summary process
cannot compel the opposite party to answer interrogatories
if it appears that there exist legal evidence of the matter
enquired of. That Rule is now changed and the existence
or absence of other legal evidence does not seem to affect the
right of a party to compel the opposite party to answer
interrogatories.* If the party on whom the interrogatories
are served, fails to answer, the matters may be taken against
him pro cowfesso.b In general the party serving interroga-
tories to be considered as in equity, seeking a discovery,
and to be governed by the Rules of equity pleading, and,
accordingly, where to an action the plea is the statute of limi-
tations, the defendant cannot be asked if he has not subse-
quently promised to pay the debt.0 But where the plaintiff
served interrogatories, and the defendant filed his answer
with the Clerk, the plaintiff may, nevertheless, decline to
offer the answer, and rely upon other evidence to establish
his claim ;d if, however, he uses the answer to the interro-
gatories, he must rely upon that alone and cannot resort to
other evidence.6 If the defendant, in lieu of written res-
ponses, answers ore tenus, he can only be required to answer
to the matters propounded in the interrogatories, and can-
not be cross examined by his own counsel/
a Brown vs. Stroud, 8 Rich., 292 ; Harrison vs. Dodson, 11 Rich., 48.
b Walker vs. Mathaney, Harp., 167; Roche vs. Chaplin, 1 Bail., 276; Fillmore &
Gamble vs. Cockfield, 2 Bail., 446 ; Brown vs. Stroud, 8 Rich., 292.
c Holly vs. Thurston, Rice, 282 ; Lewis vs. Kemp., 6 Rich., 515.
d Henkin vs. Gramman, 2 Rich., 365.
* Harrison vs. Dodson, 11 Rich., 48.
f Hill vs. Denny, 1 Strob., 338.
37
The interrogatories must be served personally upon the
party to the record. Service upon the attorney, even
though the principal is absent from the State, is insufficient/
It is not usual to enter up judgment on summary pro-
cess, in regular form. The presiding Judge enters an order
for a decree on the Docket, from whence the Clerk enters
the decree on the minutes of the Court. And that is the
only judgment ever entered up, and is sufficient. b The
entry of the decree on the minutes is the judgment, and
where from any cause the Clerk has failed to enter the
decree on the minutes, there is no judgment, nor will a
motion to amend by entering up judgment nunc -pro tunc be
granted, for there is nothing to amend by, their being no
evidence of a judgment,0 If, however, the judgment is by
confession during vacation, then the confession endorsed on
the process and signed by the defendant, is, it seems, a
sufficient j udgment in such case.d
BAIL.
Having sketched the progress of a suit from its inception
to its termination, I must now retrace my steps for a
moment, to allude to matters connected with the commence-
ment of a suit, which could not be treated of previously
without some confusion. So far the defendant has been
brought into Court by the service upon him of the ordinary
capias ad respondendum, but the plaintiff may desire to have
some security for the defendant's appearance, to answer the
charge. This is accomplished by means of a Bail Writ,
and as the law and practice in matters of bail in this State
differ widely from those of the English Courts, it is neces-
a Bartoline vs. Heath, 2 Bail., 196.
b Gage vs. Santon, 2 Mills. 247; Foster vs. Chapman, 4 McC, 291.
c MeCall vs. B.iatwright, 2 Hill, 438 ; Brown vs. Coward, 3 Hill, 4 ; Evans vs.
Hind, 1 MeM., 493.
d Manning vs. Dove, 10 Rich., 3fl5.
38
sary to be a little more minute in our investigation, than
comports strictly with the design of this sketch.
According to the English law, bail is either common or
special. It is also further divided into bail to the Sheriff
and bail to the action. Common bail, whether to the
Sheriff or to the action, obtains only in matters of small
importance, and consists of mere imaginary persons — the
John Doe and Richard Roe of legal notoriety. But if
the plaintiff will make affidavit that the cause of action
amounts to £20 or upwards, then he may have the
defendant arrested, and committed to jail for safe custody,
or compel him to put in substantial sureties for his appear-
ance at the return of the writ. This is called Special Bail
to the Sheriff, or bail below, and the bond to the Sheriff is
a Bail Bond.
On the return of the writ, the defendant must appear,
and the appearance is effected by putting in bail to the action.
This is done by two or more substantial sureties entering
into recognizance that the defendant, if condemned in the
action, wall pay the costs and condemnation, or render him-
self a prisoner, or that they will pay it for him. This is a
special bail to the action, or bail above, and the recogni-
zance entered into is styled a Bail piece.
If the defendant, having given bail to the Sheriff, fails to
put in special bail to the action, the plaintiff may discon-
tinue his proceedings against the defendant, who by his
failure to put in bail to the action, is not entitled to enter
appearance, and therefore not a party in Court, and take an
assignment from the Sheriff of the bail bond, and proceed
against the bail, or if they are insolvent, he may proceed
against the Sheriff for a breach of duty in taking an insuf-
ficient bond.
Such was the law and practice of this State until the Act
of 1785, 7 Stat., 215. A prior Act, that of 1769, (P. L.
273,) had provided that "no person, except transient per-
sons, shall hereafter be held to bail for any sum less than
£50 current money, ($30 61-100— see 2 McC, 385,) and no
person shall be held to bail for debt unless an affidavit shall
39
be made before, and attested by, some Judge or Justice of
the Peace, and endorsed on, or annexed to, the writ. The
10 § of the Act of 1785, reciting the practice that obtained
in the State of permitting the plaintiff, (on default of defend-
ant to appear,) to discontinue proceedings against the defend-
ant, and commence fresh actions against the bail, enacted
that where the defendant gives bail for his appearance, and
makes default, the suit shall be prosecuted to judgment and
execution against the defendant, before any proceeding shall
be had against the common bail ; and if the Sheriff shall
return non est inventus or nulla bona on executions against the
defendant, the plaintiff may have sci. fa. against the Bail, to
show cause why execution for judgment and costs should not
issue against them. Provided, that nothing herein contained
shall be construed to deprive the common bail in such actions
from appearing and entering himself special bail, at any
time before judgment in such action shall be signed.
This clause of the Act of 1785, introduced the following
alterations in the old law : a
1st. It gave the name of Common Bail to the bail to the
Sheriff, and applied the term Special Bail exclusively to bail
to the action.
2d. It recpiired the plaintiff to prosecute his action to
judgment and execution against the defendant, before he
could resort to the bail.
3d. It gave the common bail the privilege of appearing
and entering himself special bail, at any time before final
judgment against the defendant.
4th. It authorized the plaintiff to proceed against the bail
by scire facias instead of bringing an action on the bond —
the former remedy by action on the bond still, however,
remaining unimpaired by the Act.b
By the Act of 1809, (7 Stat., 309,) the distinction between
common and special bail was still further obliterated, and
may now be considered as entirely destroyed except in the
a Pepoon rs. Mooney, 1 Mills, 314, and Judge Xott's Lecture on Bail, Appendix to
3 Strob.,017.
b Quatcruias ads. Hawkins, 1 N. & McC, 323.
40
single instance of bail for a woman. a That Act provides
that the bail to the Sheriff (the common bail according to
the Act of 1785,) shall be entitled to all the rights, privi-
leges and powers of special bail, and may surrender his
principal in discharge of himself, or the principal surrender
himself in discharge of his bail in the same manner and
to the same extent as special bail are now entitled to ; and
further that "the bail need not obtain a Judge's order for
leave to surrender his principal."
Having shown the Statute law on the subject, I proceed
to the practice. The plaintiff, if desirous of holding the
defendant to bail in an action arising on a contract, must
endorse on or annex to the writ an affidavit, setting forth
the amount really due, and the nature of the debt or
demand.b The office of the affidavit is to furnish reason-
able proof of the nature, amount and justice of the debt,
first to enable the Court to see that the plaintiff has a good
legal cause of action, for a sum certain before a citizen is by
legal process deprived of his liberty; and second, to inform
the defendant of the claim, so as to enable him to admit its
justice and pay it, or to contest it by giving bail and defend-
ing the action.0 It is proper, therefore, to set forth in the
affidavit, concisely but clearly, the nature and amount of the
debt. If on promissory note or bill of exchange, state the
date and place of making, how, where and when payable,
the amount and the nature of the defendant's liability on
the paper whether as maker, drawer, acceptor or indorser.
An affidavit setting forth simply that defendant was indebted
to the plaintiff in the sum of $145 on a promissoiy note
bearing date June 14, 1852, has been held sufficient ; d but it
is proper to avoid the possibility of error by making the
affidavit concisely full and explicit. If for goods sold and
delivered, state the indebtedness as for goods sold and deliv-
a Ancrum vs. Sloan, 1 Rich., 422.
11 Peck & Hood vs. Van Evour, IN. A McC, 580 ; Note, Brisac vs. Moorer, Dud-
ley, 229.
0 Sanders vs. Hughes, 2 Bail., 506.
d Rosenberg vs. McKaiui, 3 Rich., 148 ; Tobias vs. Wood, 1 McM., 103.
41
ered, and in like manner through the various money counts
in assumpsit, and close the affidavit with a general averment
that the said debt remains wholly unpaid, and is still due
and owing to the said plaintiff.
In general the affidavit should be made by the plain-
tiff himself, and he decided and positive in stating the
existence of the debt ; but if the plaintiff resides beyond
the State the affidavit may be made by his agent, and
to the effect that he is informed and believes that the de-
fendant is indebted to the plaintiff, &c. So too, if plaintiff
sues in autre droit, the affidavit need only be as to his belief
and information. When the plaintiff is beyond the State,
the affidavit may (it is presumed), be made by the attorney
in the case, or his agent.a The affidavit being endorsed on
or attached to the writ, the Writ is endorsed, "take bail, see
affidavit annexed, " and is ready for the Sheriff.
If the cause of action arises ex delicto, or for any other
cause than debt, the plaintiff must swear to the circum-
stances of the case and obtain a special order for bail from
a Judge or Commissioner of special bail, specifying the
sum in which the defendant is to be bound.b Every Clerk
of Court is ex-offieio a Commissioner of special bail,c and
where the Clerk cannot act, from sickness, absence, or
interest, any magistrate is authorized to act as Commis-
sioner.11 The order for bail is all that need be endorsed on
the writ and the affidavit, on which the order was granted,
need not appear.6 When the requisites above set forth are
complied with, it is the duty of the Sheriff to arrest the
defendant and commit him to jail, or to take a good and
sufficient bail bond.
If the affidavit upon which the defendant has been held to
bail is defective, the proper method of taking advantage of
it, is for the defendant to move at the return term of the
a Treasurers vs. Barksdale, 1 Hill, 272; Kerr vs. Phillips, 2 Rich., 199.
b Act of 176S, £ 20, 7 Stat., 204 ; for form of order see Miller's Compilation, p. 170.
c Act of 1839, 11 Stat., 78, § 32.
d Act of 1839, 11 Stat., 20, \ 21.
e Brissac vs. Moorer, Dudley, 231.
42
writ, to enter an exoneretur on the bail bond. After plea and
judgment the defendant will not be allowed to object to any
irregularity in the affidavit; nor can the bail object when
the principal himself is precluded,0, for the rule requiring
the cause of action to be set forth in the affidavit is merely
a rule of practice adopted by the Court for the protection of
the liberty of the citizen, and does not extend to protect the
bail. The bail may, however, take advantage of any matter
which renders the order for bail absolutely void. So, too,
the bail may have an exoneretur entered on the bail bond if
there is a variance between the affidavit and the bond, on
making affidavit that he was ignorant that the cause of
action declared on was the one intended to be embraced in
the affidavit ; that he executed the bail bond, believing the
cause of action was different from the one set out in the
declaration, and that he has sustained some injury or preju-
dice thereby. (76th Rule of Court.) The variance to enti-
tle the bail to have the exoneretur entered, "must be by
declaring on a totally distinct cause of action from that
stated in the affidavit. If there is no cause of action stated
in the affidavit there can be no variance." b In such case if
the principal plead to the original action, there is no redress
for the bail, for there is no variance to be taken advantage
of; and the principal having waived the objection by plead-
ing, the bail is estopped also. The case of Sanders vs.
Hughes, already noticed, prescribes the practice afterwards
established in the 76th Rule of Court.
Having shown the manner of obtaining bail, it may not
be altogether superfluous to glance at the liability incurred
by the bail, and the time when that liability becomes iixed.
The undertaking of the bail is in the triple alternative as
has been already stated, viz : that the defendant if con-
demned, will pay the costs and condemnation, or surrender
himself, or that they will pay it for him.
The Act of 1785, (7 Stat,, 215,) commands the plaintiff to
prosecute his suit to judgment, and issue execution against
a Sanders vs. Hughes, 2 Bail., 506. b Sanders vs. Hughes, 2 Bail., 510.
43
the defendant, and gives him the right to proceed against
the bail only on non est inventus, or nulla bona returned on the
executions.
The Act, it will be observed, says, that "if the Sheriff
return upon the execution, that the defendant is not to be
found, or hath no effects whereon to levy the debt, then the
plaintiff may sue forth a scire facias." From this it might
be inferred that a return of nulla bona to nji.fa. would be
sufficient to authorize sci. fa. against the bail ; and such is
in fact the rule, where the principal is a female, and cannot,
according to the Act of 1824, (6 Stat., 237,) be arrested
on ca. sa.;* but in all other cases the liability of the bail is
fixed by the return of non est inventus to a ca. sa. and no fi. fa.
need issue.b
Simple as the proposition appears to be, that bail are fixed
by the return of non est inventus to a ca. sa., great difficulty
has been experienced in determining when the ca. sa. may
be returned, so as to fix the bail. It was the opinion of
Judge Richardson in Davitt vs. Counsel, 2 1ST. & McC,
137, that the ca. sa. could not be returned for the purpose of
fixing bail until the return day of process, which by the Act
of 1799, was fifteen days before the sitting of the Court;
and to the same effect is the opinion of Judge Johnson in
Sanders vs. Bobo, 2 Bail., 492, whilst on the other hand,
Judge O'Neall intimated in Sanders vs. Hughes, 2 Bail., 513,
that the ca. sa. need only remain in the Sheriff's office suf-
ficiently long enough to enable that officer to satisfy himself
that the defendant was not in his bailiwick, and that upon
the return of non est inventus, the plaintiff might proceed
forthwith against the bail. The law thus remained unsettled,
until the case of Ancrum vs. Sloan, 1 Rich., 421, when the
point directly arose, and necessitated a construction of the
Act of 1827, 6 Stat., 324. By that Act, executions were
thenceforth made "returnable according to law," instead of
to a fixed day as previously. The second section of the Act
a See Jarvis vs. Gilberson, Dudley, 223 ; Jarvis vs. Alexander, Cheves, 147.
b Broadus vs. Welsh & Carter, 2 N. & McC, 569; see also Jarvis vs. Alexander,
Cheves, 147.
44
also provided that "the Sheriff shall at each regular term of
the Court, during the active energy of the execution, return
the manner in which he has executed the process, and the
return of the said officer made as aforesaid, shall for the
fixing of bail, have the same legal effect as if the process
had been made returnable to the term succeeding its first
lodgment;" and the Court held that a return of non est
inventus could not be made on a ca. sa., so as to fix the lia-
bility of the bail before the return day of the ca. sa., which
return day was the first day of the term succeeding its first
lodgment with the Sheriff';'1 and as the whole term is in con-
templation of law indivisible, and but a single day,b the bail
cannot be fixed until the close of the return term of the ca.
sa.; and during the whole of that term the bail may dejure
surrender their principal in discharge of themselves.0
When bail are once fixed, the debt of the principal
becomes their debt, and the discharge or death of the prin-
cipal cannot affect their liability.*1
Notwithstanding that the bail are fixed by the return of
the ca. sa., and their right de jure to surrender their princi-
pal gone, they still have ex gratia a longer time within which
they may make the surrender in discharge of themselves.6 In
Davitt vs. Counsel, 2 N. & McC, 137, they were held enti-
tled to the whole of the first term, after service of the writ
upon them, or to the return term of the sci. fa., within which
to surrender their principal^ or such surrender may be
made even after ca. sa. returned and bail bond assigned, and
that without any previous order of the Court ; although if
made after the return of the ca. sa., an order of Court is
necessary to confirm it and give it effect. The reason as
given by Judge Wardlaw,8 is that a render before ca. sa.
returned, may be pleaded in bar of plaintiff's action against
a Ancrum vs. Sloan, 1 Rich., 421.
b Sanders vs. Bobo, 2 Bail., 494.
c Glover vs. Gomillion, 2 Rich., 555 ; Watson vs. Bancroft. 4 Strob., 218.
d Sanders vs. Bobo, 2 Bail., 492 ; Gordon and Spring vs. Liepman, 3 McC, 49.
e Ibid.
f See also Sanders vs. Hughes, 2 Bail., 514 ; and Glover vs. Gomillion, 2 Rich., 557.
8 Glover vs. Gomillion, 2 Rich., 557.
45
the bail; but by the return of the ca. sa., the liability of the
bail is fixed, and the surrender after such return is ex gratia,
and cannot be pleaded in bar, but must be made effective
by a Judge's order showing that the indulgence of the Court
had been granted. The explanation shows the necessity of
an order, and the order is permitted to be subsequent, out
of indulgence to the bail.
In Watson vs. Bancroft,1 the Court advanced one step
further, and considered the right of the bail to surrender
their principal at any time within the term to which the sci.
fa. was returnable as a right dc jure, and not a privilege ex
gratia, and ordered a discontinuance of proceedings against
the bail on payment of costs.b
The distinction between the right of the bail to surrender
their principal, and their privilege to do so ex gratia, was thus
entirely abolished by this case, but the Court revived the
distinction in Breeze vs. Elmore, 4 Rich., 436, by extending
the ex gratia privilege of the bail, and permitting them at
any time before the expiration of the return term of the writ
against them, to move for further time within which to
surrender their principal.
The law may be thus summed up :
1. The bail are fixed at the expiration of the term to
which the ca. sa. is returned non est inventus.
2. They have the right notwithstanding, to surrender
their principal at any time before the expiration of the
return term of the writ against them.
3. That if unable then to surrender their principal, they
may ex gratia obtain from the Court further time within
which to surrender him.
As to the mode and manner of surrendering the princi-
pal, and the precautions necessary to be taken by the bail,
see Moyers vs. Center, 2 Strob., 439.
a 4 Strob., 218 ; see also Breeze vs. Elmore, 4 Rich., 450.
b The ex gratia privilege being converted into a right, is the order of Court now
necessary to give effect to the surrender, as in Glover vs. Gomillion?
46
FOREIGN ATTACHMENT.
The manner of obtaining defendant's appearance in
Court, by the coercive influence ot a bail writ, has been
already shown, but the defendant may be beyond the limits
of the State, so that bail process cannot be served him. In
such case, the plaintiff is provided with a remedy by the
Attachment Law of the State, which enables him to attach
the property of the defendant, in whosoever hands it may
be, so as to compel his appearance in Court, as a party, or
subject his effects to the operation of a judgment.
The Attachment Writ exists with us purely by virtue of
legislative enactment, but the practice relative to it has
been moulded by the decisions of our Courts to a greater
or less degree of conformity to the custom of London.
This has introduced some complexity in our law, and for a
better examination of the subject, I propose to treat
1st. When the attachment may issue ;
2d. What may be attached ;
3d. The practice in Attachments.
1st. The plaintiff is entitled to sue out a writ of Attach-
ment when the party sought to be made defendant resides,
or is, without the limits of the State, and is liable to the
plaintiff on " any judgment bond, bill, note of hand, book
debt, covenant, contract, or assumpsit, whatsoever, or
wheresoever made or entered into, "a or has committed "any
tort trespass or injury to the real or personal property" of
the plaintiff;b and any debtor absconding or concealing
himself, so that process cannot be served upon him for the
space of three months, shall be deemed to have departed
from the State, and his property liable to attachment.0
Such are the statutory provisions regulating the right to issue
an attachment, and under them the Courts have held that
the writ may issue on a judgment before the expiration of
a year and a day from the date of its recovery and that,
a Act of 1744, \ 1, 3 Stat., 017. h Act of 1783, \ 2, 4 Stat., 544.
c Act of 1751, §1,3 Stat,, 731.
47
whether the judgment is of this or of another State." It is
true that when the judgment is of this State, the execution
can, within the year and day, issue upon the effects of the
defendant, but the property may be of that description that
a fi.fa. cannot act upon it, and the absence of the defend-
ant prevents the execution of a ca. sa. by which he might
be arrested, and forced on taking the insolvent debtor's
Act, to make a schedule and assignment. The writ in
attachment alone furnishes a remedy by seizing upon the
property, and subjecting it to the payment of defendant's
liability on the judgment.
A writ of attachment cannot, however, issue against an
absent copartner (on a partnership debt) who has a part
resident in the State ;b nor can it issue to attach the partner-
ship property, even if all the copartners are out of the
State, provided the resident copartner has, before leaving,
published a notice that he is ready to answer any suit that
may be brought against him, or to appear and give bail
to the action;0 for any person about to depart, giving notice
for one month next before his departure, that he is about to
depart, and is ready to answer any suit that shall be brought,
exempts his effects from attachment, § 9, 3 Stat., 620 ; nor
can the writ issue against an absent executor or adminis-
trator f nor for an action of slander, for the torts, trespasses
and injuries spoken of in the Act of 1783, (4 Stat., 544,)
must be actually done to the real or personal property of
the plaintiff.6* It does not embrace injuries to the person
or character, and there being no process of outlawry in this
State, one committing an assault or publishing a slander or
a Clark vs. Conner, 2 Strob., 346; Shooter vs. McDuffie, 5 Rich., 65.
b Bank vs. Broadfoot & McNeill, 4 McC, 30.
o Robinson vs. Crouder, Clough & Co., 1 Bail., 185; Aetofl744, \ 9, 3 Stat, 620.
4 Weyman vs. Murdock, Harper, 125.
e Sergeant vs. Ilelmbold, Harper, 219.
* A conversion would hardly appear to be such a tort actually done to property as
would entitle plaintiff to Writ of Attachment; but the Writ of Attachment can
issue in trover, for otherwise the plaintiff would be deprived of all remedy against
the defendant, should he abscond. (See Gilchrist & King vs. Martin & West, 1
Bail. Eq., 493.)
48
a libel has only to remove beyond the limits of the State to
escape punishment.
2d. What may be attached.
The " money, goods, chatties, debts and books of ac-
count,"'1 "lands leasehold, estates, and chatties real,"b in
the hands of any person or persons whatsoever, and the
attaching of a part in the name of the whole, that is in such
person's hands, power, or possession shall secure and make
the whole liable in law to answer any judgment that shall
thereafter be recovered upon that process.0
Under the words "moneys and debts," is included all
debts due by the garnishee to the absent debtor, whether
evidenced by bond or note or not; and all securities for
money, notes or bonds in suit ; but a mere claim for dama-
ges which is in course of litigation,d or money due on a
note given by garnishee to the absent debtor cannot be
attached.6 Kor can moneys levied under ji.fa., and in the
Sheriff's hands ;f or money in the hands of the Ordinary,6
or in the hands of the United States Marshall,11 or a legacy,
or distributive share of the, absent debtor, in the hands of
the executor or administrator1 be subject to attachment.
Goods and chattels levied on under ji. fa., and in the
Sheriff's hands are, however, subject to attachment.j It is
not easy to perceive why goods the proceeds of a Ji. fa.,
should be subject to attachment, and the money arising from
the sale of these goods exempt, but such is the law.
Where, however, after satisfying the y?. fa. there remains a
balance in the Sheriff's hands, that balance is liable to
•>■ Act of 1744, 3 Stat., 617.
b Act of 1783, 4 Stat., 544.
c Act of 1744, 3 Stat,, 617.
a Burrell vs. Letson, 2 Spear, 388.
e Gaffney vs. Bradford, 2 Bail., 441.
f Blair vs. Canty, 2 Spear, 3f ; Bowden vs. Sehatzell, Bail., Eq., 360.
g Murrell & Footevs. Johnson, 3 Hill, 13.
h Burrell vs. Letson, 1 Strob., 245.
1 Young vs. Young, 2 Hill., 425 ; McElwee vs. Story, 1 Rich., 9 ; see also Kinlocb
vs. Mixer, 1 Spear, Eq., 427 ; Carlton vs. Felder, 6 Rich., Eq., 58.
J Day vs. Beecher, 1 McM., 94.
49
attachment. It is not considered as in the custody of the
law.a
Partnership property may be attached for the individual
debt of one of the copartners,15 but all that the plantiff
attaches is the individual partner's interest in the property,0
which interest is the residue after payment of partnership
debts, and a judgment creditor of the copartnership has a
right to the fund attached, prior to the right of the attach-
ing creditor.6
A Court of Law is, however, from its constitution unable
to ascertain what is the interest of the absent copartner in
the property attached; but the practice of the Court seems
to be to pay over to the attaching creditor the defendant's
proportionate share in the property attached, as one of the
joint owners ; the attaching creditor giving bond to answer
all claims which may be afterwards made on the funds.6
3d. The practice in attachment.
The attachment is effected by serving the person in pos-
session of the property of the absent debtor, (if there be
any one in possession.) with a copy of the Writ of Attach-
ment, upon which copy is endorsed a notice requiring him
to appear before the Judge of the Court of Common Pleas,
to show cause why the effects attached should not be
adjudged to belong to the absent debtor.
The writ must contain the names of the parties to the
suit, and the statement of the cause of action, set forth
with the same accuracy as is required in a capias ad respon-
dendum. The writ being prepared and the copy writ
addressed to the person whom it is intended to serve
as garnishee, the plaintiff applies to the Clerk of Court to
have the writ tested ; and it is the duty of the Clerk before
allowing the writ to issue, to take from the plaintiff or his
agent, a bond to defendant in double the amount for which
I Dickinson vs. Palmer, 2 Rich. Eq., 407.
b Schatzell vs. Bolton; 2 McC, 478.
0 Knox vs. Schepler, 2 Hill, 595.
II Bowdeii v.-. Schatzell, 1 Bail. Eq., 360.
" Knox vs. Schepler, 2 Hill, 595; Schatzell vs. Bolton, 2 McC, 478.
4
50
the attachment issues, to be answerable for all damages the
defendant may sustain, by any illegal conduct in obtaining
or prosecuting the same." The penalty of the bond must
be double the damages if the action is in assumpsit ; if in
debt, and the damages nominal, double the debt ; if the
damages are not nominal, double the debt and damages.1*
The bond may be executed by the attorney at law of the
plaintiff, and no special power authorizing him need be pro-
duced.0 The bond given must, however, be in compliance
with the attachment law of the State, and a mere blank
paper signed and sealed by the plaintiff or his agent, is not
a sufficient execution of a bond to authorize the issuing of
the writ ;d but the objection to the regularity, or even to
the absence of the bond, can only be made by the absent
debtor himself. The garnishee cannot avail himself of it,e
and even the absent debtor is precluded from taking advan-
tage of it after pleading to the merits/ On giving the
bond, the writ issues of common right. (Act of 1799, 7
Stat., 294.)
While upon the subject of the writ, it will be as well to
notice the causes for which it may be set aside or quashed.
It will be set aside on motion, if shown by affidavits that
the defendant was in the State at the time of service of the
writ ,s but if the fact is doubtful the Court will not inter-
fere ;h or if defendant is not liable to that process,1 or if the
fund is not attached/ or if the action is not suiable by
attachment,11 or if the debt is not due,1 or if bond has not
» Act of 1839, 11 Stat., 76, § 21.
» Brown & Stone vs. Whiteford, 4 Rich., 327.
c Dillon vs. AVatkins, 2 Spear, 447, and Byne vs. Byne, 1 Rich., 441, overruling
Myers vs. Lewis, 1 McM., 54.
d Boyd vs. Boyd, 2 N. & McC, 125.
e Camberfordvs. Hall, 3 McC, 345 ; Wigfall vs. Byne, 1 Rich., 413.
1 Gray vs. Young, Harper, 38.
6 Degnau ads. Wheeler & Co., 2 N. & McC, 323; Blake vs. Hawes, 2 Hill, 631.
b Shrewsbury vs. Peareson, 1 McC, 331.
1 Weyman vs. Murdock, Harper, 125.
J Burrell vs. Letson, 1 Strob., 244.
k Sargeant vs. Helmbold, Harper, 219.
1 Walker & Bradford vs. Roberts, 4 Rich., 563.
51
been given. a The attachment will not, however, be set aside
on the ground that the defendant had in a foreign country,
made an assignment of all his effects, prior to the service of
the writ.*
The motion to set aside the writ may be made by the
defendant, or by the junior attaching creditor, but care must
be taken to keep steadily in view the distinction between
illegality in the proceedings and mere irregularity ; for the
former, either the defendant or junior attaching creditor
may move to set aside the writ ; to the latter the defendant
alone can except ;° and even he, as has already been stated,
is precluded by pleading over.d
The writ being duly tested and the bond given, the writ
is delivered to the Sheriff, who must serve it personally upon
the garnishee. The Act of 1744, (3 Stat., 617,) and the Act
of 1839, (11 Stat., 29, § 18,) use the same language that the
Sheriff shall " summon the person in whose hands," &c,
"by serving such person with a cop}^," and in Richardson
vs. Whitfield, 1 McC, 403, it was held that the service
could not be by copy left ; and to the same effect is Day vs.
Beecher, 1 McM., 94, where a writ lodged in the Sheriff's
office, the Sheriff being garnishee was held not to be suffi-
cient service.
If the service of the writ is illegal no lien is created, and
although the defendant, by subsequent pleading waive the
illegality, the waiver cannot relate back so as to defeat the
lien of intermediate attachments.6
The first writ of attachment lodged in the Sheriff's office
has priority of lien, although a writ subsequently lodged is
first served/ There can of course, be no lien where there
is no service, but where both the attachment writs are
a Chambers & Sadler vs. McKee, 1 Hill, 229.
b Crowder, Clough & Co., ads. Robinson, 4 McC, 519.
c landau vs. Arnold, 4 Strob., 292; Walker & Bradford vs. Roberts, 4 Rich., 566:
Camberford vs. Hall, 3 McC, 345 : McBride vs. Floyd, 2 Bail., 208 ; Shooter v.
McDuffie, 5 Rich., 61.
d Gray vs. Young, Harper, 38.
e Gardner "h. Hust, 2 Rich., 601.
f Callahan vs. Hallowell, 2 Bay, 8.
52
served, the priority of lien depends on the priority of lodg-
ment with the Sheriff, and not on the priority of service ;
and this is in effect the real principle decided by the cases
of Growninshield vs. Strobel & Martin, 2 Brev., 80, and
Robertson vs. Forest, Ibid, 460, which at the first glance
appear to contradict the case in 2 Bay.
We pass now to the active energy of the writ. The
operation of the attachment seems twofold.
1st. As fixing a lien on property visible and known as the
property of an absent debtor, whether it be in the posses-
sion of any one or not; and
2nd. As a means of obtaining a discovery by the oath of
the garnishee, whether or not he has in his possession or
power any and what property of the absent debtor, and
whether or no he is in any manner indebted to the absent
debtor." An examination of the the various Attachment
Acts, will, I think, show that their provisions are irrecon-
cilable, except on some such distinction as that here
suggested.
Of course, whenever the writ is served on a garnishee in
possession, it acts in both its capacities ; it fixes a lien on the
known and visible property of the absent debtor, and acts
also as a bill of discovery, by the return, which as will be
hereafter shown, the garnishee must make ; but in many
cases it has the single operation of a bill of discovery.
If there is no one in possession of property, known or
supposed to be the property of the absent debtor, the
Sheriff shall take the same into his custody, and fix up at
the Court House door an account of the effects attached
with a notice requiring all persons claiming the same, to
appear at the return of the writ, and show cause why the
same should not be adjudged to belong to the absent debtor ;>>
and if no one appear, or no cause is shown, the same shall
be adjudged to be the property of the absent debtor.0
a See the case of Parker vs. Parker, 2 Hill Ch., 39. The authority of this case
has however been much weakened by the Act of 1844, requiring the payment to the
assignees, of all moneys, &c, attached.
» Act of 1744, 3 Stat., 618 : Act of 1839, 11 Stat., 28.
° 3 Stat., 618.
53
If there is any one in possession, the Sheriff serves him
personally with a copy of the writ, and if the garnishee
does not on oath claim the property as creditor in posses-
sion, he must surrender and deliver it up to the Sheriff, or
give bond with surety not to waste or eloign the property, to
render a schedule on oath, to make due return to the writ,
and to surrender the property attached when thereto required
by law.8.
If the garnishee claim as creditor in possession, he is
entitled to retain possession of the property attached, with-
out giving hond ;b but as this would leave to the garnishee
the power of removing the effects attached beyond the
State, the second section of the Act of 1844, provides that
if the plaintiff or his attorney will make oath that he lias
just cause to believe that the garnishee is about to move the
property beyond the limits of the State, or to waste or des-
troy the same, the Sheriff may cause such person to enter
into bond with security, in double the amount sued for, tft
make the returns, and surrender the property according to
law.0
But it may, and often does happen, that the plaintiff is
ignorant, whether or no there is any property of the absent
debtor in the State, but has reason to suspect from the
course of trade, or other circumstances, that a certain per-
son has in his possession or power, effects of the absent
debtor, or is indebted to the absent debtor ; to enable the
plaintiff to ascertain that fact, the law provides him witli
the writ of attachment, and the party supposed to be in pos-
session of property of the absent debtor, is served with the
writ, by which he is compelled to appear at the return of
the writ, and discover on oath what sum or sums of money,
debts, goods, chattels, books of account, &c, he has in his
hands, possession or power, to which the absent debtor hath
any right claim or property whatsoever." Act of 1744, 8
Stat., 617.
a Act of 1844, 11 Stat, 290.
» State vs. Berry, Dudley, 218; Moore & Davis vs. Byne & Hust, 1 Rich., 94.
0 Act of 1844, 11 Stat., 290; See also Moore & Davis vs. Byne & Hust, 1 Rich., 94,
and Byne vs. Byne, Ibid., 441.
54
It has already been stated, that one of the objects of the
second section of the Act of 1844, (11 Stat., 290,) was to
provide a security against the eloignment or wasting of the
attached goods, while retained by the garnishee as creditor in
possession ; and such is the construction given to it in Byne
vs. Byne, 1 Rich., 441 ; but the section applies with equal, if
not greater propriety to the case, where the plaintiff believ-
ing the garnishee to be in possession of property of the
absent debtor, seeks protection against the eloignment or
wasting of the property during the interval between the ser-
vice of the writ on the garnishee, and his return to it.
There arc no means of compelling the garnishee to declare,
on service of the writ, whether or no he has in his posses-
sion or power, property liable to attachment, (as there is
where the visible property of the debtor is attached in the
hands of the garnishee, and he compelled to surrender, or
claim on oath as creditor,) and until the return, the plantiff
cannot know whether the garnishee holds any attachable
property ; or the garnishee may in his return deny that he
has any property of the absent debtor, and the plaintiff only
discover the fraud after the property has been eloigned, and
placed beyond the reach of the process.
Prior to this section of the Act of 1844, the plaintiff was
remediless in such case, except against the garnishee person-
ally, which might be equivalent to having no remedy; but
by the second section of the Act, the plaintiff is entitled to
a bond from the garnishee, by which the property is pro-
tected until the return of the garnishee, or while the plain-
tiff seeks evidence to falsity the return. It is proper to
remark, that I have found no case in which the affidavit
was made and bond taken at the issuing and service of the
writ, but the language of the Act seems too clear to admit
of doubt, especially since it prescribes that the affidavit
shall be "annexed to the process," and that " the Sheriff
on executing the process," shall take the bond, &c, evidently
indicating the remedy as moving pari passu with the writ,
whereas when applied to a garnishee claiming as creditor in
possession, it is a subsequent proceeding ; since until scr-
55
vice, the plaintiff can not know whether the garnishee will
surrender or will claim as creditor.
In every case where a garnishee is served with a copy of
the writ, a return must he made. If a discovery is sought,
the return is necessary, so as to inform the Court whether
or no the garnishee has in his possession any attachable
property, and if any, the nature and value of it. If the
garnishee claim as creditor, it is necessary, in order to show
the nature and value of the property attached, and the
amount of the creditor's claim upon it. If the garnishee
does not claim as creditor id possession, but retains the
goods attached, he is bound by the condition of his bond
to make return ; and if he surrender the goods on service
of the writ, he is still bound to make return, for non constat,
that the goods surrendered are all the goods or property of
the absent debtor in his possession ; and the discovery on
oath by his return is necessary as prima facie evidence of
that fact.8 The return of the garnishee should state not
only what goods were in his hands or possession, but also
what were in his power, b and since the Act of 1844, it
should state what were in his " possession, custody, power,
or control."0 It is intimated in Burrell vs. Letson, (1 Strob-
hart's Reports, page 245,) that the words "hands, power,
or possession " are used as of equivalent import, and that
the words "power or possession" do not enlarge the mean-
ing of the words "in the hands of;" but this dictum, it ia
respectfully submitted, is erroneous, and the legislative con-
struction given to the word "power" by the Act of 1844,
which uses the words "power, custody, or control," seems
to have escaped his Honor's attention. The Act of 1844
did not enlarge the powers of Attachment given by the
Act of 1744; it rendered nothing attachable which was not
before attachable, and the words "custody and control"
mentioned in it are only a legislative interpretation of the
word "power," indicating that it is not. synonymous with,
but more comprehensive than, the word possession.
_
a See Hunter and Brown vs. Andrews, 2 Spear, 73.
b Tavel vs. Barre, 2 McC, 201. c See form of Return in Appendix.
56
If the garnishee claim the goods attached as creditor in
possession, he should set forth in his return specifically the
effects attached, and also the amount and nature of the indebt-
edness of the absent debtor to him, and if the effects attached,
were obtained bona fide and legally by the garnishee, he
shall be allowed his debt — he filing his declaration precisely
as if he were plaintiff in the attachment." To entitle the
garnishee to claim as creditor in possession, he should have
a lien for outstanding liabilities incurred on behalf of the
absent debtor,1' or an actionable demand against the absent
debtor at the time of service of the writ. A liability con-
tingent at the time of service of the writ — even though it
become fixed and absolute before the return to the writ —
does not entitle the garnishee to claim as creditor in posses-
sion.0 The later cases lay down the rule that the garnishee
claiming as creditor in possession, stands on the footing of
a plaintiff in attachment, who has secured the first lien by
the first service of a writ.d The distinction between the
cases of The Bank vs. Levy, and Young vs. Linton, is that
in the former there was by the custom of trade a lien, but
none in the latter. As to the possession he should have,
the rule is, that wherever the goods are attachable in his
hands, possession, power or control, there the garnishee has
such possession as entitles him to claim to retain them as
creditor in possession. (See Mitchell vs. Byrne, 6 Bich.,
182.)
The return must be under oath, except where the gar-
nishee is a corporation, in which case it is sufficient, if
under the seal of the corporation.6 Properly, the return
should be made " at the return of the writ, or during the
sitting of the Court next after the return of the writ."
(3 Stat., 617.) The Court may, however, on good cause
» 3 Stat, 619, g 6.
b Bank vs. Levy, 1 McM., 436.
c Martin vs. Solomons, 10 Rich., 533.
d Walker & Bradford vs. Roberts, 4 Rich., 561 ; Mitchell vs. Byrne, 6 Rich.,
171 ; Young vs. Linton, Ibid, 278.
e Callahan vs. Hallo well, 2 Bay, 10.
57
shown, permit the return to be made at the second term,a
or- the Court may, in its discretion, even after judgment
had against the absent debtor, permit a garnishee to amend
his return. b
Should the garnishee neglect or refuse to make the return,
upon motion made in open Court, after two days' notice
thereof served personally upon the garnishee, or in case of
garnishee's absence posted-on the Court House door, judg-
ment shall be entered up against the garnishee, and execu-
tion issued ;c but judgment must be first had against the
absent debtor before any proceedings can be had against
the defaulting garnishee.d The usual practice is to enter
an order that the plaintiff have leave to enter up judgment
against the garnishee, and when there are several gar-
nishees, there should be. separate judgments entered, and
separate executions issued against each. (Pringle vs. Car-
ter, 1 Hill, 58.) This case was prior to the Act of 1844, but
that Act, except so far as regards the notice required, does
not vary from the Act of 1744.
It is proper, though not usual, for the attorney of the
garnishee to move, on the coming in of the return, or during
the term, that the garnishee be discharged. The motion is
useful as forcjmg the plaintiff to his election, and informing
the garnishee whether or no he will be called on to substan-
tiate his return. (See Martin vs. Parham, 1 Hill, 215.) If
plaintiff does not dispute the correctness of the return, the
garnishee, on delivering up the property to the assignee
appointed by the Court, as will hereafter be shown, is
discharged.6
If the plaintiff is not satisfied of the correctness of the
return, he is entitled to contest it, by filing suggestions, to
be tried by a jury, in which he must set forth the particu-
a Creach vs. DeLane, 1N.4 McC, 191 ; Green vs. McDonnell, 1 Bail., 304; Hun-
ter & Brown vs. Andrews, 2 Spear, 74.
b Horsey & Co. vs. Palmer, 9 Rich., 124.
c Act of 1844, g 3, 11 Stat,, 290.
d Act of 1744, 3 Stat,, 618 ; Richardson vs. Whitfield, 1 McC, 403.
e Chambers & Sadler vs. McKee, 1 Hill, 229.
58
lars in which the return is defective or false, and in addition
to the allegations that at the time of the service of the
writ, the garnishee had in his possession, power or control,
certain property not embraced in the return, the suggestions
should charge such increase by interest, hire or damages,
or other circumstances subsequent to the attachment as
may enable the jury to ascertain the value, at the time of
the verdict, of the property omitted. a If the garnishee, or
any third person, claim property in the things attached, the
truth is to be ascertained by a feigned issue, in which the
garnishee or party claiming is actor.1'
When the return of the garnishee is so insufficient,
vague, or imperfect, that the plaintiff cannot file sugges-
tions contesting it, and a more full and explicit return is
required, the practice is for the plaintiff in attachment
to file the grounds of his exceptions to the return, and
two days' notice being personally served on the garnishee,
or, in his absence, posted on the Court House door, to
move the Court for an order compelling the garnishee to
file a full and complete return on or before a day named in
the order, and that in the event of garnishee's default, that
the plaintiff have leave to enter up judgment against the
garnishee as if no return had been made.0 When the full
return is made in obedience to the order, the plaintiff, if
objecting to its corrections, may then file suggestions con-
testing the return.
The suggestions may be filed, as of course, at any time
during the return term of the writ, or the vacation follow-
ing; if not filed before the second term, it can then only
be filed by leave of Court on cause shown. If not filed
within a year and a day from the return of the writ, the
plaintiff is out of Court, and cannot afterwards obtain leave.
If the suggestion is filed during the return term of the
writ, the garnishee may be put to plead, and try the same
a Act of 1744, 3 Stat., 618; Gage vs. Wilburn, 2 Brev., 485 j Cohen ads. Sherman.
2 Spear, 534.
b Groldthwait & Evans vs. Bryant, 1 McM., 452.
c See Act of 1844, \ 3, 11 Stat,, 290.
59
forthwith, or the Court, in its discretion, may appoint a
future term for the trial of the issue.a On the trial of the
issue, the jury are limited to finding the truth or falsity of
the return, upon the allegations contained in the sugges-
tions;15 and if the jury find specific chattels in the hands of
the garnishee to belong to the absent debtor, they should
also find the value of them.0 The finding of the jury in
favor of the plaintiff is equivalent to an amendment of the
garnishee's return, and no execution issues (except for costs)
against the garnishee, but simply an order of Court direct-
ing him to deliver up the property — obedience to which is
enforced by an attachment for contempt.*1
What effect the death of the defendant pending the suit
has upon the garnishee, is uncertain. If the defendant dies
after the expiration of the rule to plead, when, as has been
previously shown [ante, page 28), judgment by default is
entered, it only remains for plaintiff to issue sci. fa. to the
personal representations to show cause why the damages
should not be assessed. The proceedings against the gar-
nishee hold good,6 but if defendant dies before the expira-
tion of the rule to plead, it is doubtful what effect the death
has. In Hitchborn vs. Radcliffe, (3 Brev., 23, S. C; 1
Treadw., 83,) it was held that the action would abate, but
the decision in that case manifestly turned upon the point
that the proceeding by attachment was a proceeding in per-
sonam— a position refuted by all the subsequent cases, (see
Fife vs. Clark, 3 McC, 347,) and in The Bank vs. McRae,
2 Spear, 641, the Court, although recognizing the error of
Hitchborn and Radcliffe, declined to lay down any rule on
the subject.
The death of the garnishee pending the proceedings does
not abate the action, but a judgment entered up against the
garnishee after his death, is irregular, and may be set aside.
(Parker vs. Parker, 2 Hill Ch., 38.)
a Martin vs. Parham, 1 Hill, 213 ; Burrell vs. Letson, 1 Strob., 244.
b Westmoreland vs. Tippens, 1 Bail., 514.
e Sherman vs. Barrett, 1 Rich., 457
d Cohen ads. Sherman, 2 Spear, 534; same case, 2 Strob., 556.
• Bank vs. MeRae, 2 Spear, 641.
60
Upon the return to the writ, either by the Sheriff or the
garnishee, the Court of Common Pleas, or any law Judge
at chambers, may appoint one or more assignees, with full
power to receive and take from the Sheriff or garnishee all
the property attached; to take possession of any land,
leasehold estates or chattels real, attached, and to receive
the rents of the same ; to sue in the name of the absent
debtor for all monies due him, and to give receipts therefor;
such assignees giving bond for faithful conduct. (Act of
1844, 11 Stat., 291, § 6 and 7.) If there should be any arti-
cles, perishable or expensive to keep, among the effects
attached, any law Judge, on application made, and proper
cause shown, may grant an order for the sale of such
property, (Act of 1744, § 7, 3 Stat., 619;) apparently, the
application may be made either by plaintiff or assignee.
The declaration should be filed within two months after the
return of the writ, unless cause shown for further time ; a
but if filed before the expiration of a year and a day from
the return of the writ, it will preserve the first attaching
creditor's lien, unless a junior attaching creditor shall rule
him to declare, and on his default, enter up against him a
judgment of non pros* At the time of filing the declara-
tion, the plaintiff should make oath of the debt or sum
demanded, and that no part of it has been paid, and that he
does not in any way stand indebted to the defendant.0 The
affidavit need not, however, be made at the precise time of
filing the declaration/ nor need it be filed with the declara-
tion or recorded ; e and if the affidavit is altogether omitted,
the objection cannot be taken by the defendant, after plead-
ing to the merits/
On filing the declaration, the plaintiff should serve the
wife or attorney of the defendant, if either are known to be
a Act of 1744, I 2, 3 Stat., 618.
b Stephen vs. Thayer, 2 Bay. 272 ; McBride vs. Floyd, 2 Bail.. 209.
c Act of 1744, g 5, 3 Stat., 619.
d Creagh vs. Delane 1 N. A McC., 189.
• Foster vs. Jones, 1 McC, 116.
' Stoney vs. McNeill, Harper, 156.
61
within the State, with a copy of the declaration, with a
special order of Court endorsed thereon, ordering when
such absent debtor shall plead to the action ; and the Court
may allow any time for the same, not exceeding a year and
a day; and in case the absent debtor has neither wife nor
attorney within the State, notice for him to appear and
plead shall be published once every three months in the
public gazettes, and if the debtor does not " appear and make
his defence within a year and a day from filing the declara-
tion, final and absolute judgment shall be forthwith given
and awarded for the plaintiff in attachment." a Such is the
language of the Act, but by the construction given to it in
the case of Williams vs. Ilaseldon, (10 Rich., 50,) the absent
debtor may, after the expiration of the year and day, appear
and put in special bail, and at the succeeding term set aside
the interlocutory judgment, dissolve the attachment and
obtain leave to plead to the action.
The wife of the absent debtor cannot appear and plead to
the declaration, b and formerly the defendant could not
appear in person or by attorney, and defend the action,
without entering special bail ; e but by the Act of 1843, (11
Stat., 256,) the defendant may at any time before the expi-
ration of the usual rule to plead, appear by attorney and
plead to the declaration, without putting in bail to the
action : provided, that a warrant of attorney, duly executed
by defendant, shall be first filed in the office of the Clerk
issuing the attachment. The Actd contains another and
most important provision, by which, in a case where the
absent debtor appears and defends the action by attorney,
authorized by a warrant, not only is the lien of the attach-
ment preserved, but on judgment had against the defendant,
execution may be levied on all his estate and effects. The
same rule obtains if the defendant appear by attorney, and
puts in bail to the action; but if defendant fails to appear,
the judgment had against him only operates on the property
1 Act of 1744, g 2, 3 Stat., 618. ° See Acock vs. Linn, Harper, 368.
"Vana vs. Frederick, 2 Bail., 303. d Act of 1843,11 Stat., '-'..7.
62
attached, which shall, on final judgment had, he delivered
to the plaintiff.8
The reason for the distinction drawn by the Act between
cases where the defendant appears by attorney authorized
by warrant, or by bail put in, and where the defendant fails
to appear, is manifest; for by his own appearance and
defence, or the appearance and defence of one authorized
to act for him, the proceeding is no longer ex parte, but the
case is fairly presented and regularly adjudicated upon, and
it is no hardship to the defendant that the remedy of the
plaintiff, (by means of his execution,) should be extended to
property other than that attached. It is presumed that where
the defendant appears in person and defends the action,
without putting in bail, the same rule would obtain, and the
plaintiff not only receive the fund attached, but also have
execution either of Ji. fa. or ca. sa. against the property or
person of the debtor. The Act only provides that no judg-
ment against "an absent debtor" shall operate against any
other than the property attached. The debtor, by appear-
ing, is no longer absent, and cannot claim a protection from
the attachment, which he would not have had without it.
The doctrine of the earlier cases, that the process cannot be
against the person and the property of the defendant at the
same time,b has been altered by the Act of 1843, which
gives the plaintiff a right to the funds attached, and to exe-
cution of Ji. fa. and ca sa. against all the property and the
person of the defendant, in cases where he defends the
action by attorney ; and it is difficult to perceive the reason
why a different rule should obtain, when the suit is defended
b}" an attorney authorized by warrant, than obtains where
the defendant himself in person defends the suit.
The Courts were formerly forced to declare the attach-
ment dissolved by the appearance of the defendant; but
since the decision that the process could not be against
» Act of 1843, 11 Stat,, 256, and Act of 1844. \ 4, 11 Slat.. 291, repealing £ 3 of
Act of 1744, 3 Stat., 618; Wigfall vs. Byne, 1 Rich., 413 ; Sliooter vs. McDuffie, 5
Rich., 63.
b Acock vs. Linn, Harp., 369; Fife & Co. vs. Clark, 3 MeC, 347.
63
the person and the property at the. same time have been
overruled, what obstacle is there to holding (in cases where
the defendant appears in person) that the judgment is good
against all the effects of the defendant, and the lien of the
attachment undisturbed. It would reconcile the language
of the Statute with the reason of the rule laid down by the
Court, (in Harper, 369, and 3 McC, 347,) and prevents the
anomaly of a defendant's controlling the scope and effect of
a judgment by his mode of appearing and defending the
action.
When the defendant appears in person, and puts in special
bail, the attachment is dissolved. The proceeding hitherto
in rem becomes, by the putting in of bail, converted into a
proceeding in personam, and the suit progresses as if the
defendant had been originally arrested on a bail writ and
given bail.a
INSOLVENT DEBTORS AND PRISON BOUNDS
ACTS.
We have traced the progress of a suit from the writ to
the execution, and ordinarily the suit there ends, but there
is an occasional supplemental proceeding. The debtor may
pray the benefit of the Insolvent Debtor or Prison Bounds
Act, and to omit all notice of the practice under these Acts
is to leave the history of a suit unfinished. The difficulty,
however, of giving anything like a clear systematized view
of these Acts, is so great as almost to deter from the attempt.
It is hazarding little to say, that no two Acts of the Legisla-
ture have ever given so much embarrassment, or so much
perplexed the bench and bar as to their true import and
effect. But the very difficulty of the undertaking furnishes
a Act of 1744, £ 7, 3 Stat,, 620 ; Fife vs. Clarke, 3 McC., 347 ; Crosbie vs. Reed,
2 McMv 15 ; Shooter vs. McDuffie, 5 Rich., 63.
64
the strongest reason why the attempt should be made. To
leave the matter untouched hecause difficult, is to desert the
student where assistance is most needed, and although well
aware that the following sketch is open to many objections,
and is possibly, in many respects deficient, I have neverthe-
less, concluded (in the absence of any other treatise on the
subject) to publish it, with the hope that if it does not fur-
nish all the explanation required, it may yet serve to point
the student to the sources whence a better knowledge may
be desired, and perhaps stimulate others more competent
for the task, to furnish something better worthy of reliance.
Stating thus candidly my doubts, I proceed to examine the
Aets.
These two Acts cannot be construed so as to form one
regular and consistent system. a They furnish to persons
confined for debt three different modes of relief unlike in
substance and differing in effect. The construction is thus
rendered doubtful and obscure, and there seems to be not
only inconsistencies but actual repugnancies. The only
intelligible arrangement, perhaps, will be to classify the
various provisions and clauses of the several Acts under
three distinct heads.
1. The benefit of the Rules.
2. The benefit of the Insolvent Debtor or Ninety Day
Act.
3. The benefit of the Prison Bounds or Ten Day Act.
Prior to the Act of 1788, an applicant for the benefit of
the Insolvent Debtor's Act was obliged to go to jail and
there remain until the Court decided on the merits of his
application ;b but by the Act of 1788 it was enacted from
motives of humanity, that the prisoners confined for debt,
whether on mesne or on final process, (see § 1 and 3,) shall
be entitled to the prison rules or limits, (which rules were
extended three hundred and fifty yards in every direction
from the prison walls, and subsecpiently by the Act of 1841,
11 Stat., 153, so extended as to comprise the judicial
» Brevard's Digest, vol. 2, p. 157. b See the Oath, # 1. Act. of 1769, 4 Stat,, 87.
65
district,) on condition of giving bond with security to the
Sheriff, not to transgress the limits.
If the prisoner is arrested on mesne process the condition
of the bond is simply as above stated, viz : Not to go
beyond the prison rules. If arrested on final process the
condition of the bond is not to go beyond the rules, and,
-'also, to render within forty days from the date thereof a
schedule on oath of his whole estate, or of so much as will
pay and satisfy the sum due on the writ of execution, and
shall also at the expiration of the notice prescribed under
the Insolvent Debtors and Prison Bounds Acts respect-
ively, assign and surrender" the property mentioned in the
schedule.*
It will thus be seen that it is perfectly immaterial whether
the prisoner arrested intends taking the benefit of the
Insolvent Debtors or the Prison Bounds Act, the mode of
obtaining the rules is the same. The rules are in effect
nothing but a release of the prisoner from actual confine-
ment, and do not in any way prejudice his right afterwards
to elect which Act he will take the benefit of.
There are, however, some distinctions between the rights
of prisoners arrested on mesne process, and prisoners
arrested on final process, which it is proper to notice.
1st. A prisoner arrested on mesne process, may at any
lime apply for the rules,b whilst a prisoner on final process
must apply " within forty days after being taken in execu-
tion." (§ 3, 1788.) A prisoner on execution may, however,
remain in actual confinement up to the fortieth day and
then give bond for the rules, and proceed to take the benefit
of the Act, filing his schedule within forty days from the
date of his bond.0
2d. A prisoner on mesne process can file his schedule at
any time, whilst a prisoner on final process must file it within
a See form of bond, Miller's Compilation, 227, 228; Act of 1788, g 2 and 3, 5 Stat..
78; Muldrow vs. Bacot, 2 McM., 363.
h Act of 1788, g 2. See Brevard's Digest, vol. 2. p. 148, note.
<■■ See \ | and 6 of Act of 1788, and Walker vs. Briggs, 1 Hill, 121.
66
forty days from the date of his bond, or he debarred the
benefit of the rules and the Insolvent Debtors Act."
The rules being granted, the next question for the
prisoner to decide, is for what Act lie will apply, the Insol-
vent Debtors or the Prison Bounds. If his arrest was on
final process, then by the terms of his bond he has until the
expiration of forty days from the date of his bond in which
to deeide. If, however, the defendant was arrested on final
process and has not taken the benefit of the rules, then he
must apply for the benefit of the Insolvent Debtors Act
within forty days from his arrest, for if he remains in actual
confinement on execution above forty days, he is debarred
the benefits of the Act.b *
If his arrest was on mesne process, he may, I presume,
apply at any time for either Act ; (see § 4, 1788, and
Brevard's Digest, vol. 2, 148, notes,) for I have not been
able to find any positive authority on the point.
Having shown the manner of obtaining the rules, we
come to the Insolvent Debtors Act, and, 1st. Who are
entitled to it.
"Any person," free persons of color included,0 "sued,
impleaded or arrested for any debt, duty, demand, cause, or
thing whatsoever," " unless sued, impleaded or arrested for
damages recovered in an action for wilful maihem or wilful
and malicious trespass, or for damages recovered in any
action for voluntary and permissive waste, or for damages
done the freehold,"11 is entitled to the benefit of the Act.
A defendant imprisoned under execution in case of slan-
der,6 or in an action of assault and battery/ or for damages
a Act of 1788, # 7, 5 Stat., 78; and Stover vs. Duren, 2 McCord, 266.
*> Act of 1788, % 6.
* In the former edition, it was laid down that the defendant being in actual con
finernent on execution above forty days, deprived him of the benefit of the Act, and
that it therefore was necessary to take the rules in order to secure the benefit of the
Act. The better construction is the above, which limits the forty days' confine-
ment to that preceding the application for the Act.
c Rodgers ads. Norton, Harp., 5 ; Glenn vs. Lopez. Ibid, 105.
d Act of 1759, # 8, and Act of 1788, \ 7.
eWallingsvs. Jennings, 1 McC, 10.
f Bampfield vs. Elland, 2 McC, 182.
67
recovered in an action for malicious prosecution, a or for
damages recovered in an action of trespass, quare clausum
fregit is entitled to the benefit of the Act, the term "damage
to the freehold," being restricted to damages in the nature
of waste.b So, too, under the term "wilful and malicious
trespass," are included only such cases as by the Statutes
22 and 23, Charles II, c. 7, fall under the head of malicious
mischief.0
A debtor is, however, excluded from the benefit of the
Act, if lie hath given more than one hundred pounds proc-
lamation money to any of his children on their marriage, —
unless he show himself clear of debt at the time; or have
lost in any one day the sum of £5 proc, or in all, the sum
of X20 proc, within the space of twelve months preceding
his petition, by gambling, horse racing, or betting ;d or hath
been confined on execution above forty days ; e or hath ren-
dered in a false schedule of his effects ;f or hath been seen
without the prison rules ; g or shall have spent more than two
shillings and sixpence a day; or who shall have within three
months before his confinement, or at any time since, paid or
assigned his estate or any part thereof to one creditor in
preference to another, or fraudulently sold, conveyed or
assigned his estate to defraud his creditors.11*
The cases upon the latter clause of fraudulent preference
are numerous and conflicting, and it is difficult to deduce
from them any general rule. The distinction, however, is
clearly drawn between paying a creditor and preferring him
to the prejudice of others. The mere fact of paying one
a Walker vs. Briggs, 1 Hill, 130.
* Smith & Blair vs. Hogg, 2 Kich., SO.
« Braker ads. Knight, 3 McC, 80.
a Act of 1759, §8.
' Act of 1788, § 6.
f Act of 1788, § 10.
e See Glenn vs. Lopez, Harper, 105.
h Act of 1788, $ 7. — This section, although a part of the Prison Bounds Act,
applies equally to cases under the Insolvent Debtors' Act. See Dobson vs. Teasdale,
■4 McC, 81, and Glenn vs. Lopez, Harper. Ids
* See, however, po«< page 74.
68
creditor within three months before the confinement of the
debtor, does not of itself exclude the debtor from the benefit
of the Act — to do that, the payment must have been made
with a view to a fraudulent preference of that creditor, or in
the terms of the Act, it must have been an "undue prefer-
ence."11 The mere intentional preference, even, is not suf-
ficient to constitute a fraud — it must be such an intentional
preference as altogether to delay, defeat or hinder another
creditor from being paid.1'
The preference must not only be undue and fraudulent,
but it must also have been made by the defendant within
three months before his confinement, or since, and by the
term confinement is meant not the arrest on mesne process,
but the confinement from which he petitions to be dis-
charged.0 This limitation as to time does not, however,
extend to cases where the debtor has "fraudulently sold,
conveyed or assigned his estate to defraud his creditors" —
such conveyance or assignment, whenever made, is inopera-
tive; and even, where from circumstances the conveyance
might be good and valid in the hands of the alienee, the
fraud deprives the debtor of the benefit of the Act, which
provides the means of discharge only for the honest, fair-
dealing insolvent.11
Although fraud in the assignment or preference by the
insolvent will deprive him of the benefit of the Act, a fraud
committed in obtaining the goods, for the value of which he
was arrested, has not the same effect. It is not a fraudulent
purchase of the goods, but a fraudulent assignment of them
which excludes from the benefit of the Act;6 so, too, a
mere attempt to defraud, not consummated, is insufficient
to deprive the applicant of the benefit of the Act,
a Creytor & Sloar vs. Dickcrson, 3 McCord, 438 ; Stover vs. Duren, 2 MeCord,
266; Dobscm vs. Teasdale, -i M Cord, 81.
b See Walker vs. Briggs, 1 Hill. 126; Smith, Wright & Co. vs. Campbell, Rice.
367 : Weed & Fanning vs. Evans. 2 Spear, 237; Crenshaw vs. Wetsel, 2 Hill, 418;
McKensie, Cadow & Co. vs. Gran son, 10 Rich.. 238.
c Bulwinkle vs. Grube, .'; Rich., 293.
'' See Heming vs. Close, 3 Stat., 365 ; Wiley, Banks & Co. vs. Lawson.'' Rich., 155.
t: Mairs vs. Smith, Harper, 128.
69
If the plaintiff at whose suit the debtor was arrested,
discharge him, he cannot obtain the benefit of the Act,
even though he may have applied for the Act, and given
the notice required.11
A defendant who has been arrested on mesne process, and
given bail, and then procured his bail to surrender him, may
take the benefit of the Act.b
Having shown Avho is entitled to the benefit of the Act,
we come to the second branch of the subject — the manner
of obtaining it.
The debtor having made his election, to take the benefit
of the Insolvent Debtors Act, must file his petition. A
petition is only necessary when the Insolvent Debtors Act is
applied for,0 and must be addressed to the Justices of the
Court, whence the process issued, a Commissioner of special
bail having no jurisdiction under the Insolvent Debtors Act.d
A form of the petition will be found in the appendix.
The petition is filed with the Clerk, the applicant notify-
ing him of what Act he prays the benefit of, and thereupon
the Clerk gives the necessary notice, calling on the creditors
to appear at a certain day, and show cause, if any they have,
why the insolvent should not be discharged.6 The applica-
tion for the benefit of the Act must not of necessity be made
at the next term of the Court succeeding the filing of the
petition, even though ninety days intervene between the
filing of the petition and the sitting of the Court; the peti-
tioner is in time if the notice required by the Act is given
to the second term, and the application may then be made.*
The notice must be published for three months in a gazette,
unless a different mode of publication is authorized by a,
special order of the Court.g On filing his petition, the
a Clarke vs. Simpson, 1 McM., 287.
b Ex parte, Ridgill, 5 Rich., 427.
c Muldrow vs. Bacot, 2 McM., 36:4.
d Act of 1759, I 1; Spears vs. Terry, 1 Treadway. 499.
o Muldrow vs. Bacot, 2 McM., 363 ; Betha vs. Nixon. 1 Strob., 148; ex parte-
Cantey, 11 Rich., 525.
f Ex part| bantey, 11 Rich., 520.
8 Act of 1759, # 1 ; Mordecai vs. LaRissey, 1 Rich., 192.
70
applicant must render in on oath, a schedule of his whole
estate." Until sworn to, the plaintiff may treat any schedule
filed as mere blank paper ; b but if the applicant omits to
swear to it when filed, he may on good cause shown, be
permitted to swear to it nunc pro tunc.0
When the applicant has been arrested on final process, the
schedule must be filed within forty days from the date of his
bond, and in computing the time, the day of the date of the
bond is excluded.d If not filed within that time, the appli-
cant is debarred the benefit of the Act, whether the omis-
sion was accidental or fraudulent.6 If, however, sickness
intervene, so as to prevent the applicant himself, or the
attorney with whom he has left the schedule, from filing it,
such sickness is a sufficient excuse for the neglect/
When the applicant has been arrested on mesne process, he
may, as has already been stated, file bis schedule at any
time.6
The schedule must contain an account of the real and
personal estate of the applicant, with the dates of the secu-
rities, wherein any part of it consists, and the deeds, notes
or vouchers relating thereto, and the names of the witnesses
to the same, as far as his knowledge extends. (1 §, 1759.)
A contingent interest, whether by executory devise, or
remainder in real or in personal property, is such property
as should be included in the schedule.11 In short, the
schedule must contain the whole estate of the insolvent
debtor, as it existed at the time of making the schedule —
his interests in expectancy as well as his interests in posses-
sion being included.
If the applicant has, through inadvertance, ignorance or
mistake, omitted to include in his schedule, property in
I 2 4, 1788; see oath taken by applicant, -J 1, 1759.
b Walker vs. Briggs, 1 Hill, 124.
c Brevard vs. Wylie, 1 Rich., 41.
d McElwee vs. White, 2 Rich., 96.
e Storer vs. Duren, 2 McCord, 266.
f Crovat vs. Coburn, 3 McCord, 14; Blackwell vs. Wilson, 2 Rich., 323.
s See ante p. 65.
II Clerry vs. Spears, 2 Spear, 6S7; Hutchinson vs. Love, 1 Spear, 145.
71
which he has any interest, he may be permitted to amend
his schedule, after it is tiled ; a and even after suggestions
impeaching the schedule have been filed ;b the granting of
leave to amend the schedule, is within the discretion of
the Court, but satisfactory proof should be made by affida-
vit, that the omission arose from ignorance, inadvertance or
mistake. If it arises from fraud,0 or if the motion is not
made until the issue made up to test the validity of the
schedule, is about to be tried;'1 or if the motion operates to
surprise, or delay the creditors, permission to amend will
not be granted. When the amendment of the schedule
removes the objection set forth in the suggestions, there is
then nothing to go to the jury, and the commissioner may
grant an order of discharge.6
When the applicant is permitted to amend his schedule,
the plaintiff has the same right to examine him, touching
the new matter, as he had to examine him on the original
schedule, (Hyatt vs. Hill, 2 McM., 56,) and by parity of
reasoning the plaintiff has the right to file additional sug-
gestion of fraud, based on the new matter.
The schedule being filed, and the notice published on the
day appointed, the applicant and the creditors appear before
the Court. If the creditors do not appear, there must be
proof made by affidavit, of the due publication of the notice,
before the matter can proceed/ The creditors appearing, or
the publication of the notice being proved, the Court pro-
ceeds in a summary way to examine into the matter of the
petition, and hear what shall be alleged for or against the
discharge of the petitioner^ who being sworn to answer
truly, may be examined touching the truth of his schedule,
and touching the nature and extent of his property, rights
and credits, liable to be assigned for the benefit of his credi-
a Bingley vs. Smart, 1 McC, 29; Prescott vs. Hubbell. 2 McC, 64.
b Craig vs. Pinson, 2 Spear, 179.
c Bingley vs. Smart, 1 McC, 29.
d Sherman & DeBruhl vs. Barrett, 1 McM., 150.
e Craig vs. Pinson, 2 Spear, 179; Bowen vs. Holleyman, 9 Rich., 66.
f BettisTs. Nixon, 1 Strob., 151.
*g 1, Act 1759.
72
tors; and the refusal of any such applicant to answer fully
and directly all or any proper questions put to him in the
course of such examination, shall prevent his discharge, if
otherwise entitled thereto, until he shall have fully answered
the same, (Act of 1836, § 1, 6 Stat., 556,) and if it appear on
such examination, that he has kept books in relation to his
trade or occupation, he may be compelled to produce them,
if in his power to do so, (§ 2, Ibid.) If on such examina-
tion, the Judge is satisfied that the applicant has been guilty
of fraud, he is bound to refuse the application ad interim^ and
order a suggestion to be filed, and an issue made up, in
which the creditor shall be actor, so that the matter may be
tried by a jury.8. This course has been adopted since Zilstra's
case, (2 Bay, 147,) from a construction in favor of the liberty
of the subject, rather than from any direct legislative enact-
ment. If the Judge is not satisfied of the fraud of the
applicant, but the creditor opposes the discharge, either for
fraud appearing in the schedule, or for fraud discovered on
the examination, or because the applicant has given an
undue preference, or made a fraudulent assignment, or gone
without the prison rules, the creditor may by leave of the
Court, file suggestions of fraud, or the Judge may in his
discretion empanel a jury to try the facts alleged.b In
Zilstra's case, (2 Bay, 149,) it was held that "affidavits ought
in all cases to be produced to warrant the Court in sending
the case to a jury, on a suggestion of fraud," and the same
principle was decided in Baker vs. Bushnell, 1 McM., 67,
but in Sherman & DeBruhl vs. Barrett, it was held that
"whenever the right of a prisoner to be discharged, is
resisted on the ground of fraud, there is nothing which
recpiires that there should be any showing on oath," but
that if the result of the allegation would be to "delay the
hearing of the debtor's application," then affidavits might,
in the exercise of a sound discretion, be required by the
Judge.
The applicant, however, after pleading to the sugges-
a Roser vs. Moye, 1 Rich., 64.
" I 7, Act of 1788; Creyton & Sloan vs Dickerson, 3 McC, 43S.
73
tions, cannot, except to the want of affidavits, the pleading
over cures the defect.*
Hitherto it has been considered that the suggestions were
filed after the examination, but it is allowable for the plain-
tiff to file suggestions as soon as the schedule is filed, and
before any examination had ; and sometimes it is expedient
to do so, as the issue is thereby made up for the ensuing
session of Court, and a term saved.
The suggestions are drawn up in the nature of a declara-
tion, but need not be in accordance with the strict rules of
pleading ; it is sufficient, if they set out in a plain, intelli-
gible manner, the grounds of the complaint, and defendant
is only required to set forth his defense in the same plain,
intelligible manner.b After the issue is made up between
the parties, no new specification can be added, unless as
has been above shown, amendments to the schedule are
made.0
The issue being made up, the cause is to be tried by a jury,
at the next ensuing session of Court, or unless objections
are interposed, it may be sent to the jury then in attendance
on the Court.
In general the debtor should be present at the rendering
of the verdict upon his application, and if the plaintiff
should then desire to have the body of the debtor recom-
mitted to prison, the Judge may make the order.
If the applicant is convicted of fraud, or is out under
bond for the rules, it is proper for the Circuit Judge to hear
and determine a motion for his arrest, although such order
does not seem to be absolutely necessary. The liability of
the sureties on the bond for the rules continues until the
defendant is retaken.3
If either party is dissatisfied with the finding of the jury
empanelled to try the suggestions or with the order of the
a Baker vs. Bushnell, 1 McM., 67, and Ibid, 161.
b Blair & Co., vs. Thomas Dudley, 291: Gray vs. Schroder. 2 Strob.. 136.
c Bentley vs. Page, 2 McM., 53; Morein vs. Solomons, 7 Rich., 105, and see ante
page 7 1 .
d Mack & Smith vs. Garrett, 10 Rich., 79.
74
Judge, they have a right of appeal. If the creditor appeals,
the insolvent has the right to go at large pending the appeal,
but as soon as the order of the Cireut Court is reversed, he
must surrender himself or forfeit his right to a discharge.*
If the insolvent appeals, he has the right to remain within
the prison hounds, pending the appeal. b If he abandons
his appeal he should surrender himself, or be surrendered by
his sureties to the bond for the rules. If this is not done,
an order for his re-arrest may he had from the Circuit Judge
at the term next succeeding the abandonment of the appeal,
reasonable notice of the motion being served upon the
insolvent.0
If the defendent is found guilt}' of rendering a false
schedule, he is forever deprived of the benefit of the Act,
for the relief of insolvent debtors, and also of the Prison
Bounds Act, and may be remanded to jail, and is further
liable to suffer the penalties of wilful perjury.d
If guilty of a fraudulent preference, or of any of the
offences specified in the seventh section of the Act of 1788,
he shall not be discharged, " without fully satisfying the
action or execution on winch he is confined."
It is a generally received opinion, even among the pro-
fession, that a fraudulent preference committed within three
months before confinement, deprives the applicant of the
benefit of the Insolvent Debtors Act, and the language of
the cases seems to confirm that opinion,6 but the seventh
section of the Act only provides that in case of fraudu-
lent preference, the applicant shall not be discharged, "with-
out fully satisfying the action or execution on which he is confined."
Suppose the debtor to have been found guilty of an undue
preference, but that after the verdict he fully satisfies the
action or execution on which he is confined ; by the terms of
the Act he is entitled to his discharge ; but what is the effect
* Baker & Co., vs. Bushnell, 1 McM., 274.
b Bulwiukle vs. Grube, 5 Rich., 295 ; Mack & Smith vs. Garrett, 10 Rich.. 82.
c Mack & Smith vs. Garrett, 10 Rich., 79.
d g 15, Act 1759 ; § 10, Act 1788; see Bulwinkle vs. Grube, 5 Rich., 295.
e See 1 McM., 161, 7 Rich., 472; Harper, 108; 1 Hill, 126; Rice, 367; 2 McC
266.
75
of that discharge ? Is it to be considered as a discharge
under the Act, or merely a discharge at common law, arising
from the satisfaction of the claim on which the debtor was
arrested? The debtor has taken the rules, filed a schedule,
and applied for his discharge under the provisions of the
Act — an objection, rendered valid by the Act is made against
his discharge — he removes it in the manner specified by
the Act, (by satisfaction) the preference is no longer " to
the prejudice of the plaintiff," and he is discharged. Since
all the proceedings have been under the Act, why should
not the discharge which is the result of those proceedings
be equally referred to the Act, and the discharge be a
release from the claims of all suing creditors and a protec-
tion from all other creditors for the space of twelve months.
If all the suing creditors had taken bail, nothing would be
gained, but if any of them had omitted so to do, their
claims would be wholly gone.
But concede that the discharge is merely a discharge at
common law. It still operates as a protection to the
debtor, for on any subsequent application for the Act, the
fraudulent preference of which he was found guilty cannot
be complained of; for as the first application necessarily
required three months' notice, the preference cannot on the
second application, be alleged as committed " within three
months before confinement," and by the term confinement
is meant " the confinement from which the applicant has
petitioned to be discharged. (Bulwinkle vs. Grube, 5 Rich.,
293,) and thus, although the insolvent may have been guilty
of a fraudulent preference, his creditors cannot avail them-
selves of it to prevent his discharge.
If the examination before the Judge is satisfactory, or the
jury find a verdict of not guilty on the suggestions of fraud,
the applicant is permitted to take the oath prescribed, (see §
1, 1759, and Miller's Compilation, p. 172,) which must be done
in open Court. Upon the applicant's taking the oath, the
Court may deliver up to him so much of his bedding, wear-
ing apparel, tools, &c, as they shall deem suitable, and also,
the homestead and fifty acres of land, according to the pro-
76
visions of the Act of 1851, (12 Stat., 85,) in cases where
that Act applies, which order is entered on the minutes of
the Court,* and " immediately thereupon" the Court shall
order the applicant "by a short endorsement on the back of
his petition," to assign the effects contained in his schedule
to the creditor at whose suit the debtor stands charged, or
to such other person as the Court may direct.1* If the debtor
refuses for the space of ten days to make the assignment
pursuant to the order of the Judge, he forfeits his right to
the prison rules and may be recommitted to close confine-
ment, provided he was taken " in execution on final pro-
cess."0 If the applicant has been arrested on mesne process,
then, if he refuse to assign and surrender the property men-
tioned in his schedule, at the expiration of the notice pre-
scribed for the Insolvent Debtors and Prison Bounds Acts
respectively, he is in like manner deprived of the benefit of
the rules and his bond forfeited.*1
The applicant must not only make the assignment re-
quired, but he must also deliver into the possession of the
assignee the effects assigned, and he is not entitled to his
discharge until he does.6 If all the effects mentioned in the
schedule are not within his power, so as to be delivered up,
he must deliver all that he can and within six months after
his discharge, must deliver up all " such as shall be after-
wards in his power to deliver," or be remanded to jail.'
The property thus assigned and delivered vests in the
assignee in trust for such creditors as shall be willing to
receive a dividend, and shall present their demands within
twelve months after the filing of the petitions The assignee
is impowered to sue for and collect all debts due the appli-
cant, and any debts paid to the debtor after his discharge
may be recovered from the payer, the debtor's receipt being
a Act of 1759, § 1 : and see Miller's Compilation, p. 173. b Ibid.
c See Act of 1840; 11 Stat., 121.
d Act of 1841: 11 Stat., 153.
e Act of 1759, I 1: Burns vs. Evans, 3 Hill, 296,: Act of 1841, 11 Stat., 153:
Walker vs. Riley, 10 Rich., 87.
f Ibid. s Ibid.
77
no discharge.' The duties devolving on the assignees are
set forth in the third section of the Act of 1759. See also
Cleverly vs. McCollough, 6 Rich., 519.
The assignees take the property subject to all incum-
brances, liens, &c, to which it was subject in the hands of
the assignor. (Mairs, et at, vs. Smith, 3 McC, 62; Assignees
of Cohen vs. Assignees of Grier, 4 McC, 509.) It is the
balance only after payment of incumbrances which is vested
in them. (Lowrie's Assignees vs. "Williamson, 3 McC,
247). It is necessary, however, for the parties to whom
the insolvent has assigned, mortgaged, or conveyed in trust
any part of his property, or their authorized agents to
appear before the Court at the time appointed by the notice
for the hearing of the applicant's petition, and render in on
oath a true account of the moneys due on such assignment,
mortgage, or conveyance; and if the property appears to be
worth more than the debt due upon it, the Court shall
order it to be sold by the assignees of the insolvent, and to
apply the proceeds first to the discharge of the sums due
such assignee, mortgagee, or person to whom the convey-
ance was made, and to apply the residue in like manner as
the rest of the insolvent's estate is to be applied. (§ 4,
1759.) Notwithstanding the mortgage, or other incum-
brance, the assignee of the insolvent is entitled to the pos-
session of the property assigned, mortgaged, or conveyed
in trust, and if it is withheld by the incumbrancer, trover
will lie by the assignee. See McLeish vs. Tylee, 4 Strob.
The fifth and sixth sections of the Act of 1759 simply
provide further time for absent or sick assignees, mortgagees,
&c, to come in and prove their liens, and the seventh sec-
tion enacts, that if they do not come in and prove the bona
fide nature of the debt for which such assignment, mort-
gage, or conveyance in trust, was made as security, they
shall lose their lien, and the mortgage, assignment, or con-
veyance be deemed fraudulent and void.b
a Act of 1759, g 17; Tibbets vs. Weaver, 5 Strob., 144.
b Purtenus vs. Sullivan, 1 McC, 397.
78
The effects mentioned in the schedule having been
assigned and delivered to the assignee. The applicant
is discharged and is entitled to receive his certificate of
discharge, (for form of discharge see Miller, page 173.)
The discharge releases the insolvent from all suing credi-
tors, and from such other creditors as shall come in within
twelve months and present their claims and accept a divi-
dend of the assigned effects/
As to creditors who do not accept under the assignment.
they are restricted from suing on their claims for twelve
months after the discharge,6 but as a protection to such
creditors the insolvent can never plead the Statute of Limi-
tation against such claims/' and the creditors, in order to
prevent loss by the failure of testimony, may prove their
debt against the insolvent at the time of the discharge; it
is not obligatory on them, however, to do so. (King vs.
Westendorff, Dud., 245, and Sinclair vs. Lynah, 1 Spear,
246.)
We now come to the Prison Bounds Act, and as no person
is entitled to the benefit of the Prison Bounds Act who is
not entitled to the Insolvent Debtors Act, (State vs. Gee
1 Bay, 163,) a reference to the cases under the latter Act is
all that is necessary on this point.
The mode of obtaining the benefit of "the rules" has
already been shown, and as to them, there is no difference
whether the prisoner intends taking the benefit of the
Insolvent Debtors, or of the Prison Bounds Act, but the
same distinction exists as to the time within which the
defendant must apply for the Prison Bounds Act, when he
has been arrested on mesne, and when he has been arrested
on final process, that has already been shown to exist in
cases under the Insolvent Debtors Act.
A prisoner confined on mesne process may at any time
during his confinement render his schedule, whereas if
confined on final process the terms of his bond compel him
a Act of 1759, \ 1; Wall vs. Court of Wardens, 1 Bay, 434; Crane vs. Martin.
4 Rich., 252.
b Act of 1759, £ 2. c Act of 1759, glO.
79
to render schedule within forty days from the date of his
bond.
The schedule filed need not contain an account of the
applicant's entire estate, it need only contain sufficient to
satisfy the sum really due on the action on which he may
be confined, and whether it is sufficient is a matter in the
first instance for the determination of the Judge or Com-
missioner of special bail, who may in his discretion allow
the schedule to be amended.a
The property included in the schedule should be visible
property, if the prisoner is possessed of any such, if not,
then of choses in action.b
No petition is necessary under the Prison Bounds Art.
but the schedule is filed under oath with the Clerk of the
Court, "who within ten days after the receipt thereof"0
shall give "public notice, that the prisoner will be liberated,
and the property assigned, unless satisfactory cause is shown
to the contrary," before the Judge or Commissioner of special
bail.d The notice must also be given for ten days,6 and is
usually by advertisement in some gazette of the vicinity,
but where there was a written notice served on the plaintiff,
who appeared by his attorney, it was held that the public
notice was waived ;f so too, exceptions filed by the plaintiff
to the defendant's schedule constitute a waiver of the want
of legal notice.*5
On the day specified in the notice the plaintiff and the
prisoner appear before the Judge or Commissioner of special
bail, and if no satisfactory cause is shown against the
prisoner's discharge, the Judge or Commissioner shall
order an assignment of the effects in the schedule "to be
made to the plaintiff,11 and by the Act of 1840, (11 Stat-,
a Parravicene vs. Sehwach, Harper, 22-t : Craig vs. Pinson, 2 Spear, 179.
h $ 5, Act of 1788.
c Muldrow vs. Bacot, 2 McM., 363.
a g 4, Act of 1788.
e Thornton & Hodges vs. Ferguson, 2 Bail.. 198.
• Mulligan vs. Prince; Rice Digest. — Insolvent Debtor, No. 42.
s Rice vs. Seins, 3 Hill, 5.
h I 4, Act'of 1788.
80
121,) if the prisoner has been arrested on final process, and
refuses to make an assignment for the space of ten days
after the order to that effect, he may be " committed to
close confinement" until he does, why the same provision
does not extend to prisoner's applying for the act on mesne
process does not appear. The prisoner, however, is not
entitled to his discharge, until the property contained in
the schedule is delivered up to the assignee, if it be, or has
been in the power of the prisoner to deliver up the same at
any time since his arrest.*
If the plaintiff shows cause against the prisoner's dis-
charge, or desires further time for information, the Judge
or Commissioner of special bail before whom the applica-
tion is heard, has the power to remand him, and appoint
another day for his appearance. If the prisoner is accused
by the plaintiff of fraud, or of having given an undue
preference to one creditor, to the prejudice of the plaintiff,
or of having gone without the prison rules, it shall be
lawful for the Judge or Commissioner of special bail to
empanel a jury to try the issue.b Prior to the Act of 1833,
it was considered that there was a distinction as to the
power of the Commissioner, on mesne and on final process ;
that in cases arising on the former, he could, under the
fourth section of the Act of 1783, himself pass upon the
sufficiency and fairness of the schedule, but that in cases
on final process he must, under the seventh section of the
same Act, empanel a jury to try the issue. (See McClure
vs. Vernon, 2 Hill, 433.) This distinction is obviated by
the Act of 1833 ; and now, as soon as the prisoner is
accused of fraud, it is the imperative duty of the Commis-
sioner to empanel a jury.0 The seventh section of the Act
of 1788 applies equally to the Insolvent Debtors and the
Prison Bounds Acts, and as what constitutes a fraudulent
preference has already been shown,d a reference to those
«■ I 6, Act of 1833 ; 6 Stat,, 493.
b I 7, Act of 17S8; g 1, Act of 1833 ; 6 Stat., 491.
0 Arrants vs. Dimlap, Cheves., 28, and see Blease vs. Farrow, 9 Rich, 46.
11 See ante page 67.
81
cases is sufficient. The mode of making up the issue by
suggestions, and the rules governing the trial of the issue
are also the same.
If there is no cause shown against the prisoner's discharge,
or the cause shown is tried and proved insufficient, the
Judge or Commissioner grants to the prisoner an order of
discharge. The verdict in favor of the prisoner is not ipso
facto a discharge — the order of the Commissioner or Judge
before whom the application is made is necessary to give it
effect.a
Strictly speaking, there is no appeal from the decision of
the Commissioner; if he errs in matters of law, the error
is to be corrected by certiorari, although the same error
committed under like circumstances by a Judge, could be
corrected by the simpler process of appeal.1'
If the Commissioner's order is sought to be corrected by
certiorari, pending the appeal, the prisoner, if appellant, must,
remain within the prison bounds;0 if, however, the order is
in his favor, and the creditor appeals, the prisoner is, it
seems, entitled to go at large until the order is reversed.4
The only right of appeal given is from the verdict of the
jury on the issues submitted to them under the Act of 1833.
If that is in favor of the prisoner and the creditor appeals,
the prisoner is entitled to go at large pending the appeal, on
giving bond with sureties to the plaintiff to be forthcoming
and to abide by the decision of the Court of Appeals.6 If
the appeal is decided against the debtor, then in order to
protect his sureties on the bond, he must, in accordance with
the Act, be surrendered or appear before the first day of the
Circuit Court next succeeding the determination of the
appeal. The surrender is the act of the sureties, and is to
the Sheriff; the appearance is the act of the debtor, and
:l Ilnvlev vs. Neilson, 1 Rich.. 4 SI',.
'' Graham vs. Beckner, Rice, 17: Caldwell & Co. vs. Metze, 2 Spear, !V> : Martin
& Walker vs. Striding, [bid, 67.
0 Hall vs. Taggart, Dudley. 370.
d See the case of Bulwinkle vs. Grube, 5 Rich., 295.
" Act of is:;:;, g i, r, Stat, 492.
6
82
should be made to the tribunal which has cognizance of the
case. The sitting of the Circuit Court is regarded as
merely fixing the period within which the surrender or
appearance must be made.a
If the verdict of the jury is against the prisoner and he
appeals, he must continue to occupy the position in which
he was in at the time of the trial.1'
The effect of a discharge under the Prison Bounds Act is
to release the debtor from confinement. If the property
assigned in the schedule is sufficient to satisfy the sum due
on the actions on which he is confined, it is of course satis-
faction, and the debt destroyed. If, however, it is not suffi-
cient, any property that the prisoner may afterwards acquire
is liable to satisfy the demand,0 but the debtor cannot be
again arrested on the same cause of action.6 The clause of
the Act rendering liable, after acquired, property, shows the
existence of another distinction between cases arising on
mesne and cases arising on final process. Where the pris-
oner has been arrested on final process, there is, of course,
a judgment, and after acquired property may be reached
either by ji. fa. or by sci.fa. on the judgment;0 but where
the prisoner has been arrested on mesne process, by what
means is the after acquired property to be reached, and for
what amount is it liable ?
This closes our review of the provisions of the two Acts.
The leading distinctions between them are — ■
1st. In the different tribunals before which they are res-
pectively tried. Cases under the Insolvent Debtors Act
being cognizable only by a Judge and in open Court, whilst
under the Prison Bounds Act, they may be tried by a Judge
or Commissioner of special bail.
2d. In the summary nature of the proceedings, only ten
days' notice being required under the Prison Bounds Act.
3 Ibid, State vs. Farrow, 9 Rich., 446.
*> Hall vs. Taggart, Dudley, 370 ; State vs. Farrow. 9 Rich.. 446.
c I 5, Act of 1788.
d Akin vs. Moore, 1 Hill, 435.
e Akin vs. Moore, 1 Hill, 435.
83
3d. In the limited effect of the discharge under the
Prison Bounds Act, operating, as it does, simply as a dis-
charge from the suit under which the debt is confined, and
without preventing other creditors from immediately arrest-
ing the debtor and enforcing their claims.
4th. A petition is necessary under the Insolvent Debtors
Act, but not under the Prison Bounds Act.
5th. The schedule must, under the Insolvent Debtors
Act, contain all the debtor's estate, whilst under the Prison
Bounds Act, it need only contain sufficient to satisfy the
sum due on the action on which he may be confined.
6th. Under the Insolvent Debtors Act, the assignment is
to some creditor, but need not necessarily be to the plaintiff'.
Under the Prison Bounds Act, the assignment must be to
the plaintiff.
7th. A debtor remaining in confinement, "on execution"
above forty days before making application, is deprived of
the benefit of the Insolvent Debtors, but not of the Prison
Bounds Act.
This closes our sketch of these Acts. If they are re-
garded as constituting a system for the relief of the insol-
vent and the protection of the creditor, they must be con-
sidered as eminently defective. The difficulty, complexity
and embarrassment which attends the creditor in prosecu-
ting his claims cannot be overrated, and operate to discour-
age him from the prosecution of his rights, and to embolden
the fraudulent, by the hope of escape through the many
flaws and intricacies which they present ; while, on the
other hand, the power of punishment given to the creditor
when he has succeeded in convicting the debtor of fraud,
is at variance with all pre-conceived ideas of justice.
Crimes against the State have their allotted term of
punishment, but the insolvent being convicted of fraud, the
creditor becomes his jailor, and may continue him in prison
as long as he has the inclination to punish, and the means
wherewith to gratify it. The observations of Mr. Burke,
upon th& punishment of insolvency under the debtor law
of England, apply with equal force to our punishment of
fraud :
84
" The next fault is, that the inflicting of that punishment
is not on the opinion of an equal and public Judge ; but is
referred to the arbitrary discretion of a private, nay inter-
ested, and irritated, individual. He, who formerly is.
and substantially ought to be, the Judge, is in reality
no more than ministerial, a mere executive instrument of a
private man, who is at once Judge and party. Every idea
of judicial order is subverted by this precedure. If the insol-
vency be no crime, why is it punished with arbitrary
imprisonment? If it be crime, why is it delivered into
private hands to pardon without discretion, or to punish
without mercy and without measure ?"
What remedy there should be for a system so complex,
so insufficient for the protection either of creditor or debtor,
and leading to results so anomalous, it is the province of
the Legislature to decide. The subject is of sufficient
importance to merit attention, and that it may receive it,
must be the wish of all who having examined the present
system are aware of its defects.
THE UNITED STATES COURTS.
Before tracing the progress of a suit in the Courts of the
United States, the preliminary question occurs: What are the
suits which may be prosecuted in the Courts of the United
States; for the government of the United States being one
of limited powers, the judicial power can exist no farther
than is granted by the Constitution.
By the third article of the Constitution, it is provided that
''the judicial power shall extend to all cases in law and
equity, arising under this Constitution; the laws of the
United States and treaties made or which shall be made
under their authority; to all cases affecting ambassadors,
other public ministers and consuls; to all cases of admi-
ralty and maritime jurisdiction; to controversies to which
85
the United States shall be a party; to controversies between
two or more States, between a State and citizens of another
State, between citizens of different States, and between a
State or the citizens thereof, and foreign States, citizens or
subjects."
This section of the Constitution received an elaborate
exposition in the celebrated case of Chisolm vs. The State
of Georgia,* and the Chief Justice of the United States
analyzing its provisions, declared that the judicial powers of
the United States extended to ten descriptions of cases. 1st.
To all cases arising under this Constitution, because the
meaning, construction and operation of a compact ought
always to be ascertained by all the parties, not by authority
derived from only one of them. 2nd. To all cases arising
under the law of the United States, because, as such laws
constitutionally made are obligatory on each State, the
measure of obligation and obedience ought not to be
decided and fixed by the party from whom they arc due, but
by a tribunal deriving authority from both the parties. 3rd.
To all cases arising under treaties made by their authority,
because, as treaties are compacts, made by and obligatory on
the whole nation, their operation ought not to be affected or
regulated by the local laws or Courts of a part of the nation.
4th. To all cases affecting ambassadors or other public min-
isters and consuls, because, as these are officers of foreign
nations, whom this nation are bound to protect and treat
according to the laws of nations, cases affecting them ought
only to be cognizable by national authority. 5th. To all
cases of admiralty and maritime jurisdiction, because, as the
seas are the joint property of nations, whose right and privi-
leges relative thereto are regulated by the law of nations
and treaties, such cases necessarily;belong to national juris-
diction. 6th. To controversies to which the United States
shall be a party, because, in cases in which the whole people
are interested it would not be equal or wise to let any one
State decide and measure out the justice due to others. 7th.
• — : : .
» 2 Dallas. 419.
86
To controversies between two or more States, because,
domestic tranquility requires that the contentions of States
should be peaceably terminated by a common judiciary, and
because in a free country justice ought not to depend on the
will of either of the litigants. 8th. To controversies between
a State and the citizens of another State, because, in case a
State, (that is all the citizens of it,) has demands against
some citizens of another State, it is better that they should
prosecute their demands in a national Court, than in a
Court of the State to which those citizens belong — the
danger of irritation and criminations arising from appre-
hensions and suspicions of partiality being thereby obvi-
ated ; because, in cases where some citizens of one State have
demands against all the citizens of another State, the cause
of liberty and the rights of men forbid that the latter should
be the sole judges of the justice due to the latter, and true
republican government requires that free and equal citizens
should have free, fair and equal justice. 9th. To controver-
sies between citizens of the same State, claiming lands
under grants of different States, because as the rights of the
two States to grant the land are drawn into question, neither
of the two States ought to decide the controversy. 10th.
To controversies between a State or the citizens thereof,
and foreign States, citizens or subjects, because, as every
nation is responsible for the conduct of its citizens towards
other nations, all questions touching the justice due to for-
eign nations or people, ought to be ascertained by and
depend on national authority.
The clause extending the judicial power of the United
States to controversies "between citizens of different States,"
seems to have escaped the attention of the Chief Justice.
Its object, probably, was as stated by Mr. Justice Johnson,8
to establish " an harmonious distribution of justice through-
out the Union, to confine the States in the exercise of their
judicial sovereignty to cases between their own citizens : to
prevent in fact that very power over the rights of citizens
a Ogden vs. Saunders, 11 Wheat., 359.
of other States which the origin of the contract might he
supposed to give to each State, and thus to obviate that
eonflictus legum, which, any one who studies the subject will
plainly perceive, it is infinitely more easy to prevent than
to adjust."
By the eleventh amendment to the constitution, adopted
in consequence of the decision in the case of Chisolm vs.
the State of Georgia, the judicial power of the United
States over controversies " between a State and citizens of
another State" was limited, and it was provided that the
judicial power should "not be construed to extend to any
suit in law or equity commenced or prosecuted against one
of the United States by citizens of another State,, or by
citizens or subjects of any foreign State."
These constitute the limits of the judicial power granted
to the United States, and unless a case can be brought
under one or the other of the classes enumerated above,
the United States Courts cannot entertain jurisdiction of it.
The exercise of the judicial power of the United States
within the limits above prescribed is delegated to three
Courts — the Supreme, the Circuit, and the District Courts.
The first of these is established by the constitution,51 while
the other two are established by act of Congress, passed in
pursuance of the eighth section of article second of the
Constitution, empowering Congress "to constitute tribunals
inferior to the Supreme Court."
The purpose of this sketch is to trace the progress
through the Courts of the United States, of a suit at law
between individuals, and I shall, therefore, pass unnoticed,
the power of the Supreme Court as a Court of original
jurisdiction, the jurisdiction of the District Court, which is
principally exercised upon causes of admiralty and mari-
time nature, and that portion of the jurisdiction of the
Circuit Court which is exercised as an appellate Court in
admiralty causes, and confine myself to an examination of
the jurisdiction ot the Circuit Court as a Court of original
*
a Art. 3. 'i 1.
88
jurisdiction ; as it is in that Court that all controversies
between individuals must originate.
Originally, the Circuit Court was composed of two asso-
ciate Justices of the Supreme Court and the District Judge
— and the associate Justices changed their circuits each
term, but subsequently by acts of Congress, amending the
judicial system, the associate Justices were made stationary,
attending always the same circuit, and the Circuit Court
was composed of the associate Justice for such circuit and
the District Judge — and power was given to the District
Judge to hold the Circuit Court in the absence of the
associate Justice. Nominally and in theory the Circuit
Court is composed of the associate Justice and the District
Judge, and all the proceedings are addressed to the Judges
of the Circuit Court, but owing to the large number of
appeals, and the length of the session of the Supreme Court
at Washington, the associate Justices rarely attend these
circuits, except for the purpose of hearing appeals from
the rulings of the District Judge in admiralty, ami in
causes in the District Court, and practically, the Circuit
Court is held by the District Judge alone.
By the Act of 1789, a establishing the Circuit Courts, it
was enacted that " the Circuit Courts shall have original
cognizance, concurrent with the Courts of the several
States, of all suits of a civil nature at common law or in
equity, when the matter in dispute exceeds, exclusive of
costs, the sum or value of five hundred dollars, aud the
United States are plaintiffs or petitioners, or an alien is a
party, or the suit is between a citizen of the State where
the suit is brought and a citizen of another State."
The jurisdiction of the Circuit Court thus depends upon
the amount involved, and the character of the parties
litigant. Both must concur to give the jurisdiction. The
matter in dispute must, in the words of the Act, " exceed,
exclusive of costs, the sum or value of live hundred dol-
lars." It has been frequently determined that the damages
■ § 11, 1 U. S. Stat,, 78.
89
laid in the declaration give the jurisdiction as to the matter
in dispute.1 The defendant may, by pleading in abatement
to the jurisdiction, contest the value of the matter in dis-
pute, but until some judicial proceedings have taken place,
showing upon the record that the sum demanded in the
writ and declaration is not the matter in dispute, that sum
will be considered by the Court as the matter in dispute in
an action for damages.1? The fact that the judgment is for
less than five hundred dollars does not affect the jurisdic-
tion; it only deprives the plaintiff of costs, or subjects him
at the discretion of the Court to the payment of costs.0
Where the demand in the declaration is not for money,
and the nature of the action does not require the value of
the thing demanded to be stated in the declaration, the
practice of the Court is to allow the value to be given in
evidence.*1
The jurisdiction depends not only on the amount in
dispute, but also on the character of the parties litigant, and
they must be either —
1st. The United States as plaintiffs or petitioners ; or,
2nd. An alien as a party ; or,
3rd. The parties must be citizens of different States.
So far as regards the United States as plaintiffs or peti-
tioners, the jurisdiction is easily determined.
As to aliens, the Act gives jurisdiction to the Circuit
Court where "an alien is a party;" and it has been held
that the other party to the suit must be a citizen of the
United States. That the Constitution did not give to the
Court of the United States jurisdiction over suits between
aliens, but only over suits between aliens and citizens.6
Alien heirs, though claiming through an ancestor who
a Muns vs. Dupont de Nemours, 2 Wash. C. C, 463: Gordon vs. Longest, 16
Peters. 104; Sherman vs. Chirk, 3 McLean, ill.
b Kanouse vs. ."Martin. 15 Howard, 208.
c Ibid. 10 How., 208; 111 Peters, 104 : Green vs. Liter. 8 Cranch, 242.
d Ex parte^Bradstreet, 7 Peters, 0)7.
e Mossmanvs. lligginson, 4 Dud., 12: Jackson vs. Tweutyinan, 2 Pet., 136; Mon-
talet vs. Murray. 4 Cranch, 46.
90
was a citizen of the same State as the defendant, may sue in
the United States Court.8, So, also, suits may be main-
tained in the United States Courts between citizens of the
same States, if the plaintiffs are only nominal parties, and
sue for the use of an alien, b for in both these cases the
aliens are the real parties in interest; and as was said by
the Court in the case of Mc^Nutt vs. Bland,0 the Court looks
to things not names, to the actors in controversies and suits,
not to the mere forms or inactive instruments used in con-
ducting them, by virtue of some positive law.
An alien does not it seems lose his right to sue or be sued
in the United States Courts, until he has taken the oath of
citizenship ; his declaration of intention under the naturali-
zation laws does not prevent him from being regarded as the
citizen of a foreign State, within the meaning of the clause
of the Act of 1789, d nor is it material in a suit between an
alien and a citizen, that the alien is a resident of the same
State with the other parties to the suit.6
Jurisdiction dependent upon the character of the parties
litigant, arises in the third place where the suit is between
a citizen of the State where the suit is brought, and a citi-
zen of another State.
The citizenship intended by the Constitution, and the
Acts of Congress in reference to the jurisdiction of the
Courts of the United States, is nothing more nor less than
residence or domicile in a particular State, the person claim-
ing to be a citizen of such State, being at the same time a
citizen of the United States/
Executors and administrators citizens of a State, can sue
debtors to the estate residing in the same State in which
their testator or intestate formerly lived,g for executors and
» Weems vs. George, 13 Howard, 190.
b Brown vs. Strode, 5 Cr., 303.
c 2 Howard, 14.
d Baird vs. Byre, 3 Wallace. Jr.
e Breedlove vs. Nicolet, 7 Pet., 428.
fRead vs. Bertrand, 4 Wash. C. C. 516: Prentiss vs. Barton. 1 Brock., 389:
Shelton vs. Tiffin, 6 Howard, 163.
s Clarke vs. Mathewson.12 Peters, 171 ; Childress vs. Emory, 8 Wheaton, 668.
91
administrators are not mere nominal parties in interest.
the personal property of the decedent being vested in them;
but they cannot sue debtors residing in the same State with
themselves, notwithstanding that their testator or intestate
was a citizen of another State, for as the executors and
administrators are the real parties in interest, the suit would
in such case be between citizens of the same State. a
Where there are two or more joint plaintiffs, or two or
more joint defendants, each of the persons concerned in
interest must be competent to sue, or liable to be sued in
the Courts of the United States, in order to give jurisdic-
tion ;'' but formal parties or nominal parties united with the
real parties in interest, will not oust the United States
Courts of jurisdiction if the citizenship or character of the
real parties be such as to confer jurisdiction within the 11th
section of the Act of 1789. So, too, where the citizenship of
the parties gives jurisdiction, and the legal right to sue is in
the plaintiff, the Court will not inquire into the residence of
those who may have an equitable interest in the claim.0 .
With reference to corporations, the rule originally was
that a corporation could not sue or be sued in the Courts of
the United States if any of the members of the corporation
were citizens of the same State with the adverse parties liti-
gant;11 but since the decision of the Supreme Court in the
case of the Louisville Railroad Company vs. Letson,6 it
has been uniformly held that for all purposes of litigation
in the Courts of the United States, a corporation created by
a State is to be deemed to all intents and purposes a person
and to be regarded as a citizen of that State, as much as a
natural person, and therefore all investigation or enquiry
into the citizenship of its component parts is immaterial/
a Dodge vs. Perkins, 4 Mason, 436.
'' Strawbridge vs. Curtis, 3 Cr., 267.
c Bouafee vs. Williams, 3 How., 574 ; Irvine vs. Lowry, 14 Peters, 298.
d Bank vs. Willis, 3 Sumner, 472; Wilson vs. City Bank, 3 Sumner, 423 : Breit-
liaupt vs. Bank of Georgia, I Peters, 238: Devereux vs. Bank of United States, 5
Cranch, 57.
e 2 Howard, 497. f Ibid, 2 Howard, 55S.
92
So, too, although the Circuit Courts of the United States
cannot entertain jurisdiction of a cause where a State is a
party to the record ; yet where a State becomes a member of
a corporation, the Circuit Courts can entertain jurisdiction of
the cause, notwithstanding that the State is a party in inter-
est and affected by the result, for the State in becoming a
corporator or a partner in a trading company does not com-
municate to the corporation or company its' sovereign privi-
leges or character, but on the contrary abdicates its sover-
eignty and becomes pro hoc vice a private citizen. a
Where one of the parties to a suit, 'pendente lite removes to
and becomes a citizen of the same State with the other
party, the jurisdiction having once attached is not ousted by
the removal,b but the party is allowed to go on and com-
plete his proceeding. So, too, when from the amount
involved and the character of the parties, the jurisdiction
has once attached, it cannot be divested by any subsequent
events. Thus, where suit was brought by a plaintiff, a
citizen of one State, against a citizen of another State, and
pending the suit the plaintiff died, his executors, although
citizens of the same State with the defendant, were allowed
to continue the cause. It was conceded that they could not
have instituted the suit, but being instituted they could
maintain it.0
This was in accordance not only with general principles,
but was also by virtue of the 31 § of the Act of 1789,
which provides that where, in any suit pending in the
Courts of the United States, either of the parties shall die
before final judgment, the executor or administrator of
such deceased party who was plaintiff, petitioner or defend-
ant, in case the cause of action doth by law survive, shall
have full power to prosecute or defend any such suit or
action until final judgment. The continuance of the cause
to the next term is granted to the executors, and other
* Bank of the United States vs. Planters Bank of Georgia, 9 Wheat., 907.
11 Morgan vs. Morgan, 2 Wheat., 290 : Mollan vs. Torrance, 9 Wheat,, 537.
c Clark vs. Mathewson, 12 Peters, 171.
93
auxiliary provisions are made by the same section to carry
the enactment into effect.
The Judiciary Act above cited, (1789,) not only gives to
aliens and the citizens of different States the right to sue
and be sued originally in the Courts of the United States,
but it provides by the 12th section, that " if a suit be
commenced in any State Court against any alien or by
a citizen of the State in which the suit is brought
against a citizen of another State, and the matter in dispute
exeeeds the aforesaid sum or value of five hundred dollars,
exclusive of costs, to be made to appear to the satisfaction
of the Court, and the defendant shall at the time of enter-
ing his appearance in such State Court, file a petition for
the removal of the cause for trial into the next Circuit
Court to be held in the district where the suit is pending,
and offer good and sufficient surety for his entering in such
Court on the first day of its session, copies of said process
against him ; and, also, for his there appearing and entering
special bail in the cause, if special bail was originally
requisite therein, it shall then be the duty of the State
Court to accept the surety and proceed no further in the
cause, and any bail that may have been originally taken
shall be discharged, and the said copies being entered as
aforesaid in such Court of the United States, the cause shall
there proceed in the same manner as if it had been brought
there by original process. And any attachment of the
goods or estate of the defendant by the original process
shall hold the goods or estate so attached to answer the
final judgment in the same manner as by the laws of such
State they would have been holden to answer final judg-
ment, had it been rendered by the Court in which the suit
commenced. And if in any action commenced in a State
Court, the title of land be concerned, and the parties are
citizens of the same State, and the matter in dispute exceeds
.the sum or value of five hundred dollars, exclusive of costs,
the sum or value being made to appear to the satisfaction
of the Court, either party before the trial shall state to the
Court and make affidavit if they require it, that he claims
94
and shall rely upon a right or title to the land under a
grant from a State other than that in which the suit is
pending, and produce the original grant or an exemplifica-
tion of it, except where the loss of public records shall put
it out of his power, and shall move that the adverse party
inform the Court whether he claims a right or title to the
land under a grant from the State in which the suit is pend-
ing ; the said adverse (party) shall give such information,
or otherwise not be allowed to plead such grant or give it
in evidence upon the trial, and if he informs that he does
claim under such grant, the party claiming under the grant
first mentioned, may then, on motion remove the cause for
trial to the next Circuit Court to he holden in such district ;
hut, if he is the defendant, shall do it under the same regu-
lations as in the before-mentioned case of the removal of
a cause into such Court by an alien, and neither party
removing the cause shall be allowed to plead or give evi-
dence of any other title than that by him stated as aforesaid,
as the ground of his claim."
This section of the Act, it will be perceived, designates
three distinct classes of cases in which the right of removal
from a State to an United States Court may be exercised ;
provided the amount in dispute exceeds the sum of five
hundred dollars, viz :
1st. Suits by a citizen against an alien.
2nd. Suits by a citizen of the State where the suit is
brought against a citizen of another State.
3d. Suits between citizens of the same State, concerning
the title of land in which the party petitioning for removal
claims under a grant from a State other than that in which
the suit is pending.
In the first two classes of cases the right of removal is
limited to the defendant. In the third class the right of
removal may be exercised by either party.
When the right to remove exists, the application for
removal must be made by filing the petition for removal at
the time of entering appearance in the State Court, accom-
panied with an offer of good and sufficient security that
95
the defendant will, on the first day of the ensuing session
of the United States Circuit Court, enter in said Court
copies of the process against him, and that he will appear
therein, and (if bail had been originally demanded) that he
will enter special bail.
The petition must be filed in the State Court, having
cognizance of the cause, and must recite the existence of
the action, and state the ground upon which the right of
removal is claimed, and it must be the petition of all the
defendants, otherwise the United States Court will not
entertain jurisdiction of the cause."
The petition being filed in the State Court, and the offer
of security approved, the order is entered in the State
Court that the security be accepted, that the cause be
removed to the Circuit Court of the United States in and
for the district of , and (if bail has been put in) that
the bail be discharged. Such order being entered, all
further proceedings in the State Court are suspended as
coram non judice,h and at the term of the Circuit Court to
which the cause is removed, a certified copy of the order
made in the State Court is presented to the Court, and an
order taken that the cause be entered therein, and the case
then proceeds as if originally commenced in the United
States Court.
Having shown the class of cases over which the United
States Circuit Courts exercise original jurisdiction, it is
proper now to regard the limitations which are placed upon
the exercise of the jurisdiction. It is provided by the
eleventh section of the Judiciary Act, that no person shall
be arrested in one district for trial in another, and that no
suit shall be brought " against an inhabitant of the United
States by any original process in any other district than
that whereof he is an inhabitant, or in which he shall be
found at the time of sending the writ." By this clause, it
will be perceived that suits in the United States Court must
be commenced by service of the writ on the defendant, and
a Smith vs. Rhines. 2 Sum., 339. b Gordon vs. Longest, 16 Pet.; 97.
96
that the defendant cannot be made a party in Court by the
process of foreign attachment.*
But when the suit has been commenced in the State
Court by foreign attachment, and the defendant appears
and removes the case into the United States Court, in the
maimer prescribed by twelfth section of the Judiciary Act,
no objection can be taken to the mode of commencing the
suit, or to the fact that defendant was not found in the
district at the time of serving the writ, for by appearance
the defendant waives the objection, and places himself
precisely in the position he would have been in had pro-
cess been served upon him,b and by the words of the Act,
" Any attachment of the goods or estate of the defendant
by the original process, shall hold the goods or estate so
attached to answer the final judgment, had it been rendered
by the Court in which the suit was commenced."0
The eleventh section of the Judiciary Act contains, also,
another limitation upon the jurisdiction of the Court, in
the provision that, " no District or Circuit Court shall have
cognizance of any suit to recover the contents of any
promissory note or other chose in action in favor of an
assignee, unless, a suit might have been prosecuted in such
Court to recover the said contents if no assignment had
been made, except in cases of foreign bills of exchange."
The statute, it will be perceived, refers to the assignee,
and it has, in the construction given to it by the Courts,
been limited to an assignee in the strict technical sense of
the word; therefore, when the note is payable to "bearer,"
the transfer is by delivery, not by assignment, and the
bearer is not in the sense of the Act an assignee, and may
maintain suit upon it in the Circuit Courts/
The object of the statute seems to be to deny to the
» Toland vs. Sprague, 12 Pet.. 327 ; Piequet vs. Swan, 5 Mason, 35; Hollinge-
worth vs. Adams, 2 Dall . •')'.''(!.
» Pollard vs. Dwight, I Cr., 121.
° 12 Sec, 1789 j 1 U. S. Stat., 78.
<> Bell vs. Bullard, 1 Mason, 251; Bonnafee vs. Williams, 3 How., 574.
97
assignee any greater right by virtue of the assignment than
his assignor had.
Thus, where the payee and maker of a promissory note
are citizens of the same State, the payee cannot sue the
maker in the United States Courts, and as the payee cannot,
no subsequent endorsee or assignee can. So, too, an endor-
see cannot sue the first or other remote endorser in the
United States Courts, unless the intermediate endorsers,
through whom he deduces his title, could sue in the United
States Courts ;a but where the citizenship and the amount
warrant it, the assignee or endorsee can sue his immediate
assignor or endorser in the United States Court, irrespec-
tive of the citizenship of the other parties to the paper, for
as between them it is a new contract, the parties to which
are citizens of different States.1'
The rule then is, that to entitle an assignee to bring an
action in the United States Court on a promissory note or
chose in action, he must not only be entitled to sue by virtue
of the citizenship of himself and the defendant, but he must
also show that those through whom he claims were entitled
to sue by virtue of their citizenship. It is immaterial that
the parties through whom he claims could not have originally
sued in the United States Com't. It is sufficient. if at the
time of assignment they possessed the right to sue upon the
paper in the United States Courts; thus when the payee and
maker were citizens of the same State, and subsequently the
payee removed to another State and then endorsed the paper
over, the endorsee was held to be entitled to sue the maker
in the United States Courts."
Having shown the jurisdiction of the Circuit Court, it is
proper to add a few words as to the proper mode of stating
the jurisdiction.
The Circuit Courts, as has been already stated, were cre-
ated by Congress under that clause of the Constitution
empowering them to constitute tribunals inferior to the
Mollan vs. Torrence, '.I When!., 537. '' Young vs. Bryan, 6 Wheat.. 146.
c Kirkman vs. Hamilton, 0 Pet., 22.
98
Supreme Court; but though the Circuit Court is an inferior
Court, in the language of the Constitution, it is not so in
the language of the common law; nor are its proceedings
subject to the scrutiny of those narrow rules which the
caution or jealousy of the Courts at Westminster long
applied to Courts of that denomination, but are entitled to
as liberal intendments or presumptions in favor of their
regularity, as those of any Supreme Court. A Circuit
Court although not an inferior Court, is, however of limited
jurisdiction, and has cognizance not of eases generally, but
only of a few specially circumstanced, amounting to a small
proportion of the cases which an unlimited jurisdiction
would embrace. And the fair presumption is, (not as with
regard to a Court of general jurisdiction, that a cause is
within its jurisdiction, unless the contrary appears, but
rather,) that a cause is without its jurisdiction till the con-
trary appears. This renders it necessary, inasmuch as the
proceedings of no Court can be deemed valid further than
its jurisdiction appears, or can be presumed, to set forth
upon the record of a Circuit Court the facts or circum-
stances which give jurisdiction either expressly or in such
manner as to render them certain by legal intendment.
Among those circumstances it is necessary where the
defendant appears to be a citizen of one State, to show that
the plaintiff is a citizen of some other State, or an alien ; or
if the suit be upon a promissory note, by an assignee, to
show that the original promisee is so, for by a special pro-
vision of the statute, it is Ins description as well as that of the
assignee, which effectuates jurisdiction. a
It must therefore appear upon the record that the amount
involved and the character of the parties litigant, support the
jurisdiction. b If citizens, it must be stated on the record
that they are citizens, and of what States they are citizens,
and it is not sufficient to style them inhabitants or residents.0
a Turner vs. Bank of North America, 4 Dall., 10.
b Montalet vs. Murray, 4 Cr., 46.
c Bingham vs. Cabot, 3 Dallas, 382 ; Abererombie vs. Dressius, 1 Cr., 343 ; Brown
vs. Keeue, 8 Peters, 112.
99
If aliens, not only must the fact of alienage be averred upon
the record, but it must also be stated of what foreign State
the alien is a subject.4 If the suit is by or against a corpo-
ration, it must be averred on the record that the party is a
corporation, and was created a corporation by the law of
some State.b
It is not, however, necessary in any case to state on the
record, in addition to the fact of citizenship or alienage, that
the defendant is an inhabitant of the district, or that he was
found therein at the time of serving the process.0 The
objection, if it exists, may be taken advantage of by notice
to set aside the process, or by plea in abatement.
But even where the pleadings fail to show the jurisdic-
tion of the Court, the judgment rendered in the cause is not
a nullity. It is of course erroneous, and may be reversed by
writ of error or on appeal, but until reversed, it is binding on
all the world/ and even where the record clearly fails to show
jurisdiction, the defendant may by his laches lose the right
to except to it, and to reverse the judgment. In the case of
Skillern's Executors vs. May's Executors,6 the case had been
carried to the Supreme Court by writ of error, and re-
manded back to the Circuit Court; and upon again coming
before the Circuit Court, it was discovered that the plead-
ings failed to show jurisdiction. The Supreme Court, how-
ever, ruled that it was then too late to except to the juris-
diction.
It has already been seen that when the jurisdiction de-
pends on the citizenship of the parties, that citizenship
must be averred, and originally it was held that the aver-
ment must be proved on the general issue, and as a conse-
quence of this view, if at any stage of a cause it appeared
that the plaintiff's averment of citizenship was not true, he
a Wilson vs. The City Bank, 3 Sumner, 422.
" Marshall vs. Baltimore & Ohio R. II. Co., 10 How., 314: Philadelphia & Balti-
more R. R. Co. vs. Quigley, 21 How., 207.
c Graeic vs. Palmer, 8 Wheat., 699.
d Ex parte, Watkins, 3 Pet., 207 ; MxCormk-k vs. Sullivant, 10 Wheat., 199.
e 6 Cranch, 207.
100
failed in his suit, but it is now held and lias been held for
many years, that if the defendant disputes the allegations of
citizenship, he must plead the fact in abatement and plead in
the order of the common law ;a and, indeed, all matters which
go to defeat the jurisdiction of the Court over the particular
cause must be pleaded in abatement, otherwise the plea of
the general issue will operate as a waiver of the plea to
the jurisdiction. '' This must be understood, however, as
applying only to cases where the record shows jurisdiction,
for it is evident that on the question of jurisdiction two
classes of cases may arise.
1st. Where the record fails to show jurisdiction, there
being no averment or an insufficient averment.
2d. Where the record shows jurisdiction but the facts of
the case do not sustain the averment.
In the first class of cases the objection to the jurisdiction
may be taken at an}' stage of the cause prior to a decision
on the case in the Supreme Court, and it may be taken
without any formal plea, for if the attention of the Court is
directed to the record and the record fails to show jurisdic-
tion of the cause in the Court, the proceedings are coram non
judice and the case must be dismissed.
In the second class of cases the record shows jurisdiction,
but the objection is to the truth of the averment and must
therefore be taken by plea, and the plea must show that the
objection or defect of jurisdiction existed at the time the
action was brought and not merely at the time of plea
[•leaded, for as has been already seen, if the jurisdiction
existed at the time of action brought it is not divested by
subsequent occurrences.0
Having shown the class of cases over which the Circuit
Courts of the United States exercise jurisdiction, it is prop-
er now to advert to the law by which the judgment of the
Court is regulated in deciding the cases submitted to it,
The 34th section of the Act of 1789, provides that the
Jones vs. League, IS How., SI. b 11)1.1 : Gracie vs. Palmer, 8 Wheat., 699.
c Mollaw vs. Torrance, 9 Wheat., 537.
101
laws of the several States, except where the Constitution,
treaties or statutes of the United States shall otherwise
require or provide, shall be regarded as rides of decision in
trials at common law in the Courts of the United States in
cases where they apply.
This section of the Judiciary contemplates the adminis-
tration of the local laws of the State, through the instru-
mentality of the United States Courts, and the parties liti-
gant in submitting a cause to the decision of the United
States Court, change the tribunal, but not the law by which
the cause is to be decided.
It is a generally recognized principle that the Judicial
department of every government is the appropriate organ
for construing the legislative Acts of that government, and
on this principle the construction given by the United
States Court to the Constitution and laws of the United
States, is received by all as the true construction, and the
construction given by the Courts of the several States to the
legislative Acts of those States, is received as true, unless
they come in conflict with the Constitution, laws or treaties
of the United States,a but this principle is limited in its
application to State laws strictly local, that is to say to the
positive statutes of the State, and the construction given
to those Statutes, by the State tribunals, and to rights and
titles to things having a permanent locality, such as the
rights and titles to real estates and other matters immovable.
and intra territorial in their nature and character.1'
Not only do the United States Courts conform themselves
to State decisions on the construction of statutes, holding
that the tixed construction of the statute, makes in fact a
[•art of the statute law of the State,0 but they also conform
themselves to the State decisions on the common law when
they are tixed rules of property/1
•-1 Sec Ellmendorf vs. Taylor, 10 Wheat., 160.
b Swift vs. Ty<on, 1(5 Pet.. 18.
0 Shelly vs. Guy, 11 Wheat., 367 j McKeen vs. DeLancy. 5 Crunch.. 22 : Polk's
Lessee vs. Wmdal, 9 Cranch., 98.
d Jackson vs. Chew. 12 Wheat., 167.
102
The close adherence of the Courts of the United States to
this principle of adopting the local laws of the State when
they are rules of property, and the importance which they
attach to it, are strikingly manifested in the case of Green
vs. Lessee of !N"eal.a The United States Courts, it is well
known, adopt the Acts of limitations of the several States,
and give to them the same effect as is given in the State
Courts. b A case involving the construction of the statute
of limitations of the State of Tennessee was before the
Supreme Court of the United States, and was decided in
conformity to the decision of the State. Some years after
the decision of the Supreme Court, the State Court of Ten-
nessee in an elaborate opinion reviewed and reversed their
prior decisions, and settled a different construction of the
Act of limitations. In this position of the law the case of
Green vs. Lessee of Neal came up to the Supreme Court of
the United States, and the question was whether the
Supreme Court should adhere to its own decision or yield
to that of the judicial tribunals of Tennessee. The question
was novel and of grave importance and after a review of the
cases, and a careful consideration of the principle which
had governed the action of the Court, it reversed its own
decision and adopted that of the State Court. " A refusal
to do, says the Court, would in effect establish two rules of
property in the State."
This principle applies, not only to the rules of property,
but to the rules of evidence; and the statutes, and deci-
sions of the State on the admission or rejection of evidence
furnish the rule of decision for the United States Courts
in civil cases.0
But the thirty-fourth section of the Judiciary Act, adopt-
ing the laws of the several States as rules of decision for
the Courts of the United States in those States, does not
apply to questions of a more general nature not dependent
upon local statutes or local usages of a fixed and permanent
6 Pet, 298. b McLuny vs. SilKman, 3 Pet,, 277.
c McNeill vs. Holbrook, 12 Pet., 89.
103
operation, as for example, the construction of ordinary
contracts or other written instruments, and, especially, to
questions of general commercial law, the true interpretation
and effect of which are to be sought, not in the decisions
of the local tribunals, but in the general principles and
doctrines of commercial jurisprudence.*
It has been seen that the Courts of the United States, to
a oreat extent, administer the law according to the statutes
and decisions of the respective States within which they
exercise jurisdiction. The code of practice in the Courts
of the United States is in like manner closely assimilated
to the practice of the State Courts. This was accomplished
at the institution of the United States Courts by the adop-
tion of the State practice as a rule of proceeding.
It is evident, however, that State laws cannot proprio
vigore control the exercise of the powers of the national
government, or in any manner limit or affect the operation
of the process or proceedings in the national Courts. b They
can be obligatory only so far as they have been directly or
indirectly adopted by Congress, and Congress, mindful of
the changes that might occur in the practice of the State
Courts, has carefully provided the means of enabling the
Courts of the United States to conform to any change in
the State Courts, and thus preserve the uniformity of
practice in the respective Courts.0
The fourteenth section of the Judiciary Act of 1789d
empowers the Circuit Court to issue writs of scire facias,
habeas corpus, and all other writs not specially provided for
by statute, which may be necessary for the exercise of their
resj iective jurisdictions, and agreeable to the usages of law.
The Process Act of 1789e * expressly adopted the forms
a Swift vs. Tyson. 16 Pet., IS : Watson vs. Tarpley. 18 How., 520.
b See opinion of Johnson, J., in Ogden vs. Saunders, 12 Wheat., 213 : Waynian
vs. Southard, 10 Wheat,, 1; Bank vs. Halstead, 10 Wheat.. 01.
0 Beers fs. Houghton, 9 Peters, 359. d 1 U. S. Stat., 81. e 1 U. S. Stat., 92.
*It enacted, "That the forms of writs and executions, except their style and
modes of process in the Circuit Courts in suits at common law, shall be the same in
each State respectively as are now used or allowed in the Supreme Courts of the
ame."
104
of writs and modes of process of the State Courts in suit*
at common law. This Act was by its terms to continue
in force only until the end of the next session of Congress.
The Process Act of 1792a prescribed, section first, that all
writs and processes issuing- from a Circuit Court should
bear test of the Chief Justice of the Supreme Court, or (if
that office shall be vacant) of the associate Justice next in
precedence.
The second section of the Act permanently continued
the " forms of writs, executions, and other processes, and
the forms and modes of proceeding" then in use by virtue
of the Process Act of 1789, but, with this important
difference, that they were "subject to such alterations and
additions as the said Courts respectively shall, in their
discretion, deem expedient, or to such regulations as the
Supreme Court of the United States shall think proper
from time to time by rule, to prescribe to any Circuit Court
concerning the same."
The Judiciary Act of 1793, section seven1' empowers
the Circuit Courts to make rules and orders "directing
the returning of writs and processes, the filing of decla-
rations and other pleadings, the taking of rules, the
entering and making up judgments by default, and other
matters in the vacation and otherwise, in a manner
not repugnant to the laws of the United States, to regulate
the practice of the said Courts respectively, as shall be lit
and necessary for the advancement of justice, and especially
to that end to prevent delays in proceedings."
There was thus the direct adoption by Congress of the
forms of writs and modes of proceeding of force in the
respective States in 1789, and at the same time a vesting
in the Circuit Court a power to alter and mould the process
of the Courts for the future. The explanation of this legis-
lation is to be found in the difficulties which were inherent
in the subject itself, and the wisdom of the legislation has
been vindicated by Chief Justice Marshall in the case of
a 1 U. S. Stat., 275. » 1 U. S. Stat., 335.
105
Way ma n vs. Southard, 10 Wheat., 47, "a judicial system,*'
says the Chief Justice, "was to be prepared, not for a
consolidated people, but for distinct societies, already pos-
sessing distinct systems, and accustomed to laws, which,
though originating in the same great principles had been
variously modified. The perplexity arising from this state
of things was much augmented by the circumstance that,
in many of the States, the pressure of the moment had
produced deviations from that course of administering
justice between debtor and creditor, which consisted, not
only with the spirit of the constitution, and consequently
with the views of the government, but also, with what
might safely be considered as the permanent policy, as well
as interest, of the States themselves. The new government
could neither entirely disregard these circumstances, nor
consider them as permanent. In adopting the temporary
mode of proceeding with executions then prevailing in the
several States, it was proper to provide for that return to
ancient usage, and just, as well as wise principles, which
might be expected from those who had yielded to a sup-
posed necessity in departing from them. Congress probably
conceived that this object would be best effected by placing
in the Courts of the Union the power of altering the
"modes of proceeding in suits at common law," which
includes the modes of proceeding in the execution of their
judgments, in the confidence that in the exercise of this
power the ancient, permanent and approved system would
be adopted by the Courts, at least, as soon as it should be
restored in the several States, by their respective Legisla-
tures. Congress could not have intended to give permanence
to temporary laws, of which it disapproved, and, therefore,
provided for their change in the very Act which adopted
them."
By the Act of 1828a (1 Sec), the provisions of the Process
Act of 1789 and 1792 were extended to those States admit-
ted into the Union since the twenty-ninth day of September,
1789, and the third section of the Act (of 1828), applying
. • _
M U. S. Stat.. 278.
106
equally to the original thirteen States, and to those sub-
sequently admitted into the Union, provided, that "writs
of execution and other final process issued on judgment
and decrees rendered in any of the Courts of the United
States, and the proceedings thereupon shall be the same,
except their style, in each State respectively, as are now
used in the Courts of each State ; "provided, however, that it
shall be in the power of the Courts, if they see fit in their
discretion, by rules of Court, so far to alter final process in
said Courts, as to conform the same to any change which
may he adopted by the Legislatures of the respective States
for the State Courts.
And by the Act of 1842, the provision of the Act of
1828 were made applicable to such States as have been
admitted into the Union since the nineteenth of May, 1828.
These several sections embrace all that has been enacted by
Congress relative to the issuing executions and mode of
proceeding upon process, mesne and final.
In order, therefore, to determine a question of practice,
we are to ascertain : 1st, Whether Congress or the Supreme
Court of the United States has prescribed any rule upon
the subject. 2d, If not, whether the United States Court,
in which the question arises, has laid down a rule upon it.
If not, then, 3d, We are to inquire into the practice of the
Supreme Court of the State in which the Circuit Court
sits. And, lastly, If none of the above sources of informa-
tion furnish the rule, resort must be had to the practice of
the Courts at Westminster.
In applying the third test, however, it is not the practice
of the State Courts at the time the question arises which
furnishes the rule ; but the practice which existed in the
State Courts at certain periods fixed by statutes of the
United States. Thus, if the question arises on mesne process,
or the forms and modes of proceedings, and it is in one of
the original thirteen States, the practice in force in the
State Courts in 1789, furnishes the rule of decision.
If it is in a State admitted into the Union prior to 1828,
the practice of the State on the nineteenth day of May,
1828, furnishes the rule. If in a State admitted after 1828,
107
and prior to 1842, the practice of the State on the first day
of August, 1842, furnishes the rule.
If the question arises on final process or the proceedings
thereon, and in one of the original thirteen States or in a
State admitted into the Union prior to 1828, the practice of
the State Court on the 19th day of May, 1828, furnishes
the rule.
If it arises in a State admitted since 1828, the practice of
the State on the 1st day of August, 1842, furnishes the rule.
The constitutional validity and extent of the power thus
given to the Courts of the United States, to alter the pro-
cess of the Court and modes of proceedings has heen fre-
quently considered and has been uniformly sustained by the
Supreme Court of the United States. It has been further
held* that the power to alter and add to the process and
modes of proceeding in a suit embraced the whole progress
of such a suit, and every transaction in it, from its com-
mencement to its termination, and until the judgment
should be satisfied, and that it authorized the Courts to
prescribe and regulate the conduct of the ofiicer in the exe-
cution of final process in giving effect to its judgment ; and
it was emphatically laid down that " a general superintend-
ance over this subject seems to be properly within the
judicial province, and has always been so considered; and
that "this provision enables the Courts of the Union to
make such improvements in its forms and modes of pro-
ceeding as experience may suggest, and especially to adopt
such State laws on this subject as might vary to advantage
the forms and modes of proceeding which prevailed in
September, 1789. "b The result of this doctrine as practically
expounded and applied in the case of the Bank of the Uni-
ted States vs. Halstead,0 is that the Courts " may, by their
rules, not only alter the forms, but the effect and operation
of the process, whether mesne or final, and the modes of
proceeding under it, so that it may reach property not liable
in 1789 by the State laws to be taken in execution, or may
a Beers vs. Haughton, 9 Pet, 360. b Wayman vs. Southard, 10 Wheat., -12.
c 10 Wheat.. 51.
108
exempt property which was not then exempted, but has
been exempted by subsequent State laws."* These deci-
sions of the Supreme Court in the eases of Wayman vs.
Southard, and Bank vs. Ilalstead, were in 1825, and in 1828
the Act was passed by Congress conforming executions and
other final process, and the proceedings thereupon in the
Courts of the United States, to the practice in the State
Courts, but the principle of these cases remains of force.
The only effect of the Act of 1828, so far as regards execu-
tions and the proceedings thereupon, has been to change
the point of departure and to make the State law of force in
1828 the rule in the place of that which was in force in 1789.
Exercising the power thus given, rules were, at an early
period, prescribed by the Circuit Court for this District.
These rules are contained in Miller's Compilation. They
modify the practice of our State Courts in but few particu-
lars, and are so clear and precise, that little or no difficulty
can be experienced in construing or applying them, and I
shall therefore only notice such of them as concern the
ordinary institution and progress of a suit.
Rules are held in the Clerk's office on the first Monday in
every month. The writ (a form of which is found in the
Appendix,) is tested in the name of the Chief Justice of the
United States, and of some day in the preceding term of
the Circuit Court. In this respect it differs from the writ
in the State Court, which is tested in the name of the Clerk
and of the day it issues.
The writ may he made returnable to the next term of the
Court, or to the rules, on the first Monday of the month
next ensuing its lodgment with the Marshal ; the latter is
the course generally adopted, as the plaintiff" can thereby
ordinarily have the pleadings made up and the case ready
for trial at the next term.
If the Marshal is unable to serve the writ, and return it
to the Clerk's office at the rules next ensuing its lodgment
with him, he returns it to the next succeeding rule day, and
to accomplish this no order of Court or alteration in the
writ is necessary.
a Beers vs. II;ui-;hton, 0 Pet., 360.
109
As soon as the writ is returned executed, the declaration
may be immediately filed. The practice is to have the dec-
laration prepared, and to file it with the Clerk on the rule
day to which the writ is returnable, provided the writ has
hern duly returned executed. Where the declaration is filed
on a rule day, no rule to plead is necessary, hut it some-
times occurs that to postpone the filing of the declaration to
the rule day, would prevent the case being ready for hearing
at the next term, in such eases it is proper not to wait until
the rule day, hut as soon as the 'writ is returned to tile the
declaration, and serve the rule to plead on the defendant or
his attorney. The form of the rule is the same as in the
State Courts.
There is in the United States Court for this District no
imparlance term. The time within which a defendant must
plead to the declaration is prescribed by the 6th Rule of
Court. a If defendant fails to plead within the time allowed
by the rule, the plaintiff may enter up at the rules before
the Clerk an order for judgment by default; but the judg-
ment thus obtained may be set aside at the next rules on
motion before the Clerk.1' If not then set aside, the case is
docketed on the enquiry docket; but it is still competent
for the defendant within the first two days of the next term
on special cause shown, to move to set aside the judgment
by default and for leave to plead.6
Where the action is on a bill of exchange or promissory
note and the plea is non est factum or non assumpsit, the
defendant should file with his plea an affidavit of the truth of
it, otherwise the execution of the note or bill is admitted,
and plaintiff need not prove it.d The 55th, 56th, 57th, 58th
and 60th Rules also contain important regulations relative
to pleas, but as these rules are to be found in Miller's Com-
pilation, they need not be repeated here.
The pleadings being made up and the cause docketed, the
next matter that requires attention is the production of the
evidence. The witnesses may be summoned to attend by
subpoena, issuing in like manner as from the State Courts,
1
a Miller, 69. » Rule 7. « Rule 7. d Rut? 59.
110
and the subpoena runs throughout the district and into _
other districts, but in civil causes, witnesses -vrifrtHipnw nv
out of the district in which the Court is holden who live at a I
greater distance than one hundred miles from the place of
holding the Court,a cannot be compelled to attend in obedi-
ence to the subpoena.
"When the attendance of a witness cannot be obtained by
a subpeena, his testimony may be taken by deposition de
bene esse or by a dedimus potestatem or commission, the power
to issue which is given to the Courts by the 30th section
of the Act of 1789,b which provides that "when the testi-
mony of any person shall be necessary in any civil cause
depending in any district in any Court of the United States,
who shall live at a greater distance from the place of
trial than one hundred miles, or is bound on a voyage to
sea, or is about to go out of the United States, or out of
such district, and to a greater distance from the place of
trial than as aforesaid before the time of trial, or is ancient
or very infirm, the deposition of every such person may be
taken de bene esse before any Justice or Judge of any of the
Courts of the United States, or before any Chancellor,
Justice or Judge of Supreme or Superior Court, Mayor or
Chief Magistrate of a city, or Judge of any County Court
or Court of Common Pleas of any of the United States, not
being of counsel or attorney to either of the parties, or inter-
ested in the event of the cause, provided that a notification
^ from the Magistrate before whom the deposition is to be
taken to the adverse party to be present at the taking of the
same, and to put interrogatories, if he thinks fit, be first
made out and served on the adverse party or his attorney,
as either may be nearest, if either is within one hundred
miles of the place of caption, allowing time for their attend-
ance after notified, not less than at the rate of one day,
Sudays exclusive, for every twenty miles' travel. And every
person deposing as aforesaid, shall be carefully examined
and cautioned, and sworn or affirmed to testify the whole
a Act of 1793, 6 §, 1 Stat., 335.
Ill
truth, and shall subscribe the testimony by him or her given
after the same shall be reduced to -writing, which shall be
done only by the Magistrate taking the deposition, or by
the deponent in his presence. And the depositions so taken
shall be retained by such Magistrate until he deliver the
same with his own hand into the Court for which they are
taken, or shall together with a certificate of the reasons as
aforesaid of their being taken, and of the notice, if any
given to the adverse party, be by him, the said Magistrate,
sealed up and directed to such Court, and remain under his
seal until opened in Court. And any person may be com-
pelled to appear and depose as aforesaid, in the same
manner as if to appear and testify in Court." It is also by
this section further provided that evidence thus taken may
be used on the trial of any cause, if "it shall appear to the
satisfaction of the Court that the witnesses are then dead,
or gone out of the United States, or to a greater distance
than as aforesaid, from the place where the Court is sitting,
or that by reason of age, sickness, bodily infirmity, or im-
prisonment, they are unable to travel and appear at Court,
but not otherwise."
This mode of taking the testimony of a witness being
ex parte, and in derogation of the rules of the common
law, has been condemned by the Supreme Court, as liable
to great abuse, "except in cases of mere formal proof (such
as the signature or execution of an instrument of writing),
or of some isolated fact (such as demand of a bill or notice
to an endorser), and is now but rarely used, a dedimus po-
testatem, or commission, being the mode usually adopted.*
The practice in issuing commissions from the Circuit
Court of the United States is regulated by the fifty-fourth
Rule of Court.15 Care should be taken in framing the com-
mission, for it is a special authority delegated by the Court
to the Commissioners, and must be strictly pursued.0
Ordinarily, a summons from the commissioners is suffi-
a Walsh V3. Rogers, 13 How., 287. b Miller's Compilation.
0 Armstrong vs. Brown, 1 Wash. C. C, 43.
112
cient to secure the attendance of the witness, but should
the witness prove refractory, the means of compelling his
attendance before the commissioners are given in the first
section of the Act of 1827, a which provides that, "when-
ever a commission shall be issued by any Court of the
United States for taking the testimony of a witness or
witnesses at any place within the United States, or the
territories thereof, it shall be lawful for the Clerk of any
Court of the United States, for the district or territory
within which such place may be, and he is hereby enjoined
and required, upon the application of either of the parties
in the suit, cause, action or proceeding, in which such
commission shall have been issued, his, her, or their
agent or agents, to issue a subpoena or subpoenas, for such
witness or Avitnesses, residing or being within the said
district or territory, as shall be named in the said commis-
sion, commanding such witness or witnesses to appear and
testify before the commissioner or commissioners in such
commission named, at a time and place in the subpoena
to be stated, and if any witness, after being duly served
with such subpoena, shall refuse or neglect to appear, or,
after appearing, shall refuse to testify, (not being privileged
from giving testimony), such refusal or neglect being proved
to the satisfaction of any Judge of the Court, whose Clerk
shall have issued such subpoena or subpoenas, he may
thereupon proceed to enforce obedience to the process,
or to punish the disobedience in like manner as any Court
of the United States may do in case of disobedience to
process of subpozna ad testificandum issued by such Court,
and the witness, or witnesses, in such case shall lie allowed
the same compensation as is allowed to witnesses attending
the Courts of the United States ; Provided, That no witness
shall be recpiired to attend at any place out of the county
in which he may reside, nor more than forty miles from
his place of residence, to give his deposition under this
law."
» 4 Slat., 1117.
113
When it is desirable that the witness should produce
books or papers before the commissioners, the means of
compelling the attendance of the witness and the produc-
tion of the books and papers are given by the second
section of the Act of 1827, which provides, that, "when
ever either of the parties in such suit, cause, action, or
proceeding, shall apply to an}7 Judge of a Court of the
United States, in the district or territory of the United
States, in which the place for taking such testimony may
be for a subpoena duces tecum, commanding the witness
therein to be named, to appear and testify before the said
commissioner or commissioners, at the time and place in
the said subpoena to be stated, and also to bring and carry
with him or her, and produce to such commissioner or
commissioners, any paper, writing, or written instrument,
or book, or other document, supposed to be in the posses-
sion or power of such witness, such Judge being satisfied
by the affidavit of the person applying or otherwise, that
there is reason to believe that such paper, writing, written
instrument, book, or other document, is in the possession
or power of the witness, and that the same, if produced,
would be competent and material evidence for the party
applying therefore, may order the Clerk of the Court, of
which he is a Judge, to issue such subpoena duces tecum
accordingly, and if such witness, after being duly served
with such subpoena duces tecum, shall fail to produce any such
paper, writing, written instrument, book, or other docu-
ment, being in the possession or power of such witness,
and described in such subpoena duces tecum, before and to
such commissioner or commissioners, at the time and place
in such subpoena stated, such failure being proved to the
satisfaction of the said Judge, he may proceed to enforce
obedience to the said process of subpoena duces tecum, or to
punish the disobedience, in like manner as any Court of the
United States may do in case of disobedience to a like pro-
cess, issued by such Court, and when any such paper, writing,
written instrument, book, or other document shall be pro-
duced to such commissioner or commissioners, he or they
8
114
shall, at the cost of the party requiring the same, cause to
be made a fair and correct copy thereof, or of so much
thereof as shall he required by either of the parties:
" Provided, That no witness shall be deemed guilty of
contempt for disobeying any subpoena directed to him by
virtue of this Act, unless his fees, for going to, returning
from, and one day's attendance at the place of examination,
shall be paid or tendered to him at the time of the service
of the subpoena. "
Thus far the modes of procuring testimony in the United
States Courts are in close resemblance to those employed
in our State Courts, but the 15th section of the Act of
1789 contains provisions of a more stringent nature than
are known to our State practice. In our State Court when
a party, after due notice, fails to produce a paper, the only
remedy for the party calling for the paper is to introduce
secondary evidence of its contents, but the 15th section of
the Act of Congress of 1789, provides that "all Courts of
the United States shall have power in the trial of actions at
law, on motion and due notice thereof being given, to
require the parties to produce books or writings in their
possession or power, which contain evidence pertinent to
the issue in cases and under circumstances where they
might be compelled to produce the same by the ordinary
rules of proceeding in chancery, and if a plaintiff shall fail
to comply with such order, to produce books or writings, it
shall be lawful for the Courts respectively, on motion, to
give the like judgment for the defendant, as in cases of
nonsuit, and if a defendant shall fail to comply with such
order, to produce books or writings, it shall be lawful for
the Courts respectively, on motion as aforesaid, to give
judgment against him or her "by default."
This section, it has been held, does not destroy the right
to introduce secondary evidence of the contents of a paper,
but furnishes an additional means of securing the produc-
tion of the paper.a When, therefore, a party in a cause
a Iasigi vs. Brown, 1 Curtis, 402.
115
wishes the production of papers supposed to be in the
possession of the other, he must give him notice to produce
them. If they are not produced, lie may give secondary
evidence of their contents, or may draw inferences from
their non-production unfavorable to the party not producing
them, or he may move for a non-suit or judgment by
default as the case may be. But to entitle the party call-
ing for the production of papers to a judgment by default
or nonsuit, he must show that the papers contained evidence
pertinent to the issue, and are in the possession of the
opposite party, and that he had given notice to the opposite
party, that if the papers were not produced, he would move
the Court for an order upon the party in possession to pro-
duce them, or on failure so to do, to award a nonsuit or
judgment by default/ The motion for a nonsuit or judg-
ment by default can only be made after a non-compliance
with the order of the Court for the production of the
papers.b The application for an order to produce papers
may be made on notice before trial, and in such case the
correct practice seems to be, after the moving party has
made a prima facie case, to enter an order upon the opposite
party to produce at the trial the papers described in the
motion, or to show cause at the trial why the same are not
produced.0
The party in possession of papers cannot, however, be
compelled to produce them until the trial has commenced.11
The party called on to produce papers may reply by his
own affidavit denying his possession of the papers, and this
may be met by contrary proof, according to the rules of
equity.6
The defendant has the right in the State Court to move
for a nonsuit, when in his opinion the plaintiff has failed to
show a legal right to maintain the action ; but in the case
a Bas vs. Steele, 3 Wash. C. C, 381.
* Thompson vs. Selden, 20 How., 197.
0 Iasigi vs. Brown, 1 Curtis C. C, 402.
d Hylston vs. Brown, 1 Wash. C. C, 298 ; Iasigi vs. Brown, 1 Curtis C. C, 402.
e Bas vs. Steele, 3 Wash. C. C, 381.
116
of Elmore vs. Green, 1 Pet,, 469, it was held that a Circuit
Court had no authority to order a peremptory nonsuit
against the will of the plaintiff. That the plaintiff had a
right hy law to a trial by jury, and to have the case sub-
mitted to them. He might agree to a nonsuit, but if he did
not so choose, the Court could not compel him to submit to
it. It is competent, however, for the plaintiff in the United
States Court, as in the State Court, voluntarily to take a
nonsuit at any time before the verdict is published ; and the
defendant has the right when the plaintiff has closed his
case, to move the Court to instruct the jury that if the evi-
dence is believed by the jury to be true, the plaintiff is not
entitled to recover, and in the language of the Court, such
an instruction " makes it imperative upon the jury to find
a verdict for the defendant." a The defendant thus obtains
a better result from the granting of his instruction than he
would from the granting of the nonsuit, as that would only
abate the particular action, while the verdict under the
instructions would destroy the cause of action. It is proper
also to note the difference which exists between the practice
of the United States Court, and that of the State Court rela-
tive to the reply in argument, The practice in the State
Court is as has been seen, that the defendant omitting to offer
evidence, entitles himself to the reply in argument.* A simi-
lar practice does not obtain in the United States Court, but
the plaintiff' opens and closes whether the defendant intro-
duces testimony or not. Such is the rule in this District,
The practice, however, varies in the different Districts.
All judgments obtained at the same time have equal rank,
provided the judgment is entered up within five days after
the party is entitled to the same. It may, however, be
entered up at any time before the second term after, to take
precedence from date. If not entered before the second
term, they cannot be entered up without a motion at rules
or in open Court.0
The judgment when duly entered up is a lien on real
a Parks vs. Ross, 11 Howard, 362. b Ante, 26. c Rules 12 and 13.
117
estate or chattels real, in the same manner as judgments of
the State Court, and cease to be liens in the same manner
and at like periods as the judgments of the State Courts. :l
The preparatory step by which the judgment is obtained
and the lien established, depend upon the practice of the
Court, and that practice is settled by the Federal Courts
under the power given, as has already been seen by the Acts
of 1792 and 1828; but the judgment once obtained, the lien
of it arises under and is regulated by the State laws. The
lien is considered as a rule of property, and a rule of deci-
sion under the 34th § of the Judiciary Act; and as we have
already seen,1' the United States Courts conform to the rules
of property established by the State laws.0
Interest is also allowed on the judgments, when by the
laws of the State interest would be allowed on judgments in
the State Courts.d
The judgment being entered up, the execution issues on
the rule day next after the setting of the Court at which the
judgment was obtained.6 The plaintiff may take out a ca.
sa. in the first instance ;f or may issue ji. fa. and ca. sa.
together, and proceed in such manner as to the issuing and
renewal of executions, as is prescribed by the State laws of
force in 1828. The 22nd Rule of Court, adopts the provi-
sion of the Act of the State of 1839, and provides that no
new execution shall issue until that previously issued has
been returned, except by special order of a Judge.
The execution is tested in the name of the Chief Justice
of the United States and of the day of the adjournment of
the Court, and is returnable to the next term of the Court.
The form of the writ is the same as in the State Court.2
The executions run throughout the district, and under it
a Act of 1840, £ 5, Stat,, 393.
b Ante page 101.
c Clements vs. Berry, 11 Howard, 111 ; Massingill vs. Downs, 7 Howard, 760.
rt 1S42, 8 £, 5 Stat,, 518.
c 21st Rule of Court.
f Act of 1?02, 2 £, 1 Stat,, 270.
s Act of 1828, 3 I, 4 Stat., 281 ; see Appendix for form of writ.
118
a levy may be made on any property subject to levy by the
State laws of force in 1828.
The 43d and 44th Rules of Court prescribe the duties of
the Marshal in making sales of property, and for defaults in
his official duty, the Marshal may be ruled in like manner
as the State Sheriff; and is, in like manner, liable on his
official bond to the parties injured. (See Act of 1789, § 27,
1 U. S. Stat., 87; Act of 1800, § 3, 2 U. S. Stat., 61 ; and
Act of 1806, 2 TJ. S. Stat., 372, as to office and duties of
Marshals.)
Subject to the exceptions above pointed out, the practice
of the United States Court conforms to that of the State
Court, and a reference to the preceding part of this work
will indicate the proper course of proceeding in the differ-
ent stages of a cause. The Rules of the Circuit Court for
this District are contained in Miller's Compilation, and an
examination of them will show how slightly they vary from
those prescribed to the State Courts.
BAIL.
The right to hold to bail is left by the laws of Congress
to be determined by the local laws and practice in each
district. The local laws and practice which govern in this
district, are such as were in force at the passage of the Pro-
cess Act of 1792, subject of course to such modifications as
have been introduced by Rule of Court.3,
There is not, I believe, any difference between the prac-
tice of the Courts of the State and the Courts of the United
States for this District, as to the proceedings to hold to bail.
In cases "sounding in contract," there must be an affi-
davit of the sum actually due attached to the writ, and an
order endorsed thereon requiring bail to be taken. b The
order of the plaintiff's attorney is sufficient. In all special
cases the order of a Judge shall be obtained. The Act of
Congress of 1812° gives to the commissioners appointed by
a Miller's Compilation, p. 75. b Sixty-second Rule, Ibid.
c 1 £, 2 Stat., 679; see also Payne vs. Drew, 4 East., 523; Hogan vs. Lucas, lg
Pet., 400; Taylor vs. Caryl, 20 Howard, 594; Ex parte, Dow, 3 Howard, 103.
119
the Circuit Court the same power to take acknowledgments
of bail, as is possessed by the Judges, but there is no power
as yet given to the commissioners to make an order for bail.
Although the right to hold to bail and the proceedings to
hold to hail are the same in the Courts of the United States
as of the State, there is a restriction upon the exercise of
the right which arises in cases where jurisdiction of the
State Court and of the United States Court attaches upon
the same person. The fundamental principle upon which
Courts entertaining jurisdiction over the same subject-
matter act, is, that when there is equal jurisdiction, that
which first attaches is exclusive, consequently when the
defendant is in custody of the law under a process issuing
from a State Court, lie cannot be arrested by process issuing
from the Court of the United States. In the case of Good-
win vs. Cohen & Cohen, a the defendants were arrested under
ca. sa. issuing from State Court, and gave prison bounds
bonds, and applied for insolvent debtors Act ; subsequent
to these proceedings, they were arrested on ca. sa. issuing
from the United States Court. They moved to set aside the
arrest, and it was held that the arrest was irregularly made ;
that the defendants were to be considered as in the posses-
sion of the Sheriff, under process of a Court of competent
jurisdiction ; that the possession of the Sheriff was exclu-
sive, and that the execution of the ca. sa. by the United
States Marshal could only be by an actual arrest of the body
of the defendant, which arrest would interfere with the pos-
session and impair the custody of the Sheriff. The motion
was accordingly granted, and the arrest by the Marshal set
aside.
The same principle was enunciated in the case of Lane &
Co. vs. Bethea.b The defendants were in custody of Sheriff
under ca. sa., issuing from the State Court. A bail writ
issuing from the United States Court, was directed to the
Marshal, who arrested the defendant and took a bail bond
A motion was made to set aside the arrest and cancel the
bond, and it was held that in conformity to the principles
•
» MSS. Decision per Magrath, J., 1858. b MSS. Decision per Magrath, J., 1858.
120
declared in Goodwin vs. Cohen & Cohen, that the Marshal
had no [tower to make the arrest, and if none to make the
arrest, none to require the bond, which is of course but a
substitute for the body. The arrest was accordingly set
aside, and the bail bond cancelled.
In the above cases the defendant was in custody of the
Sheriff under ca. sa. at the time the process of the United
States Court was executed upon them, and of course the
positive authority of a decision is co-extensive only with
the facts upon which it is made. The principle will, how-
ever, it is apprehended, apply to all cases where the defend-
ant is in custody of the Sheriff, under process of the State
Court, whether mesne or final, at the time that the process
of the United States Court is executed.
The governing principle applicable alike to the Courts of
the State and of the United States, is non-interference by
either with the custody exercised by the office of the other
under appropriate legal process directed to them, and
whether the process is mesne or final, whether the defend-
ant is in custody under bail writ or ca. sa. is, it is presumed,
immaterial, for in either case there is an arrest, and if a
subsequent arrest under process of another Court was per-
mitted, the custody under the first arrest would of necessity
be disturbed.
Although it has not been decided, and therefore cannot
be laid down as law, I think it may be safely said that a
defendant in custody of one Court, or under bail bond to
appear and answer to that Court, cannot be arrested by
process issuing from the other.
It is probable, however, that although the arrest could not
be made, the process if lodged with the officer having cus.
tody of the defendant, would operate as a detainer, and it
would be in abeyance so long as the prior arrest was in full
force, but resume its active energy as soou as that prior
arrest was discharged.
Bail are fixed by a return of non est in renins to a ca. sa. or
nulla bona to afi.fa. against the principal.11 This is at vari-
a 64th Rule of Court.
121
ance with the existing State law. The validity of the rule
was called in question before the Circuit Court for South
Carolina in the case of Ross & Leitch vs. Mclntyre." It was
held, however, that the bail bond and the proceedings upon
it were not included in the proceedings upon writs of execu-
tion and other final process within the meaning of the Act
of Congress of 1828, but were included in the " forms and
modes of proceedings in suits at common law," according
to the Act of Congress of 1792, and that to determine the
epiestion presented, resort must be had to what was the law
of the State fixing the liability of the bail at that time, and
that by the State law of 1785,b the plaintiff might on the
return of non est inventus to a ca. sa. or nulla bona to a fi. fa.
have a sci. fa. against the bail, and accordingly the sixty-
fourth Rule was sustained as in conformity to the State law
at the passage of the Act of Congress regulating the pro-
ceeding. Subsequent changes in the State law cannot as
has already been stated, furnish any rule of operation for
the Courts of the United States until such changes have
been adopted by Act of Congress or the Rules of the Court.
APPEAL.
The party dissatisfied with the result of the suit may
appeal, either by motion in arrest of judgment, or by
motion for a new trial, or by writ of error.
The motion in arrest of judgment is addressed to the
Circuit Court which heard the case, and is governed by
the principles of the common law. A reference, therefore,
to the standard text books on practice in Common Law
Courts will furnish all that will be needed upon the subject.
The time within which a motion in arrest of judgment can
be made is limited by the fifteenth Rule of the Circuit
Court for the District of South Carolina,0 which prescribes
that notice of the motion and the grounds thereof must be
given within two days after the rendition of the verdict.
•
a MSS. Decision per Magrath, J., 1858. b 7 S. C. Stat., 215.
c See Miller's Compilation.
122
The motion for a new trial is by virtue of the Judiciary
Act of 1789, a which provides "that all the said Courts of
the United States shall have power to grant new trials in
cases where there has been a trial by jury, for reasons for
which new trials have usually been granted in Courts of
Law." The motion is addressed to the discretion of the
Court which heard the cause, and from its judgment, grant-
ing or refusing a new trial, there is no appeal. b
The practice in moving for new trials is regulated by the
Act of 1789,° which provides that, "when judgment upon
a verdict in a civil action shall be entered, execution may,
on motion of either party, at the discretion of the Court
and on such conditions for the security of the adverse party
as they may judge proper, be stayed forty -two days from
the time of entering judgment, to give time to file in the
Clerk's office of said Court a petition for a new trial. And
if such petition be there filed within said term of forty-
two days, with a certificate thereon from either of the
Judges of such Court that he allows the same to be filed,
which certificate he may make or refuse at his discretion,
execution shall of course be further stayed to the next
session of the said Court."
The fifteenth Rule of Court requires that notice of a
motion for a new trial, and "the grounds thereof," shall
be given within two days after verdict. This rule, in con-
nection with the subject of new trials, has never, so far as
I am aware, received judicial construction, but it is clearly
repugnant to the statute above cited. The rule recpiires
notice, and the grounds of the motion within two days
after verdict, and if the rule is valid, the omission to give
the notice within the required time would deprive the
defeated party of his appeal, but, on the contrary, the
statute gives the right to appeal by motion for new trial,
even after judgment "shall be entered;" the only limita-
tion being that the execution shall not be stayed to allow
a § 17, 1 U. S. Stat., 21.
*>Life Insurance Co. vs. Wilson, 8 Pet., 303; U. S. vs. Daniel, 6 Wheat., 543 J
Barr vs. Gratz, 4 Wheat., 215, • Henderson vs. Moore, 5 Cranch, 11.
c I 18, 1 Stat., 83.
123
the petition to be filed more than forty-two days from the
time of entering judgment. The rule only allows the
defeated party two days within which to allege the grounds
upon which he moves. The Act allows forty-two days.
In practice the fifteenth Rule of Court is ignored and the
directions of the Act implicitly followed.
The petitions required by the Act should set forth clearly
and distinctly the grounds upon which the party considers
himself entitled to a new trial. When prepared, it is pre-
sented to the Judge who heard the cause, and it is in his
discretion to allow it to be filed, or to refuse it. If he
allows it, he signs it, and it is then filed in the Clerk's
office, and the motion docketed for hearing at the next
term.
The motions in arrest of judgment and for a new trial
may be made simultaneously, but no motion in arrest of
judgment will be heard after a new trial once granted/
Both these motions are irrespective of the amount involved
in the litigation.
According to the English practice, a motion for a new
trial is a waiver of a writ of error, and in some of the
Circuits of the United States there is a rule to this effect,
but the better doctrine seems to be, that a new trial is not
a waiver of a writ of error, and even where by the rules of
Court it is a waiver, effect can only be given to the rule by
entering the waiver on the record before the motion for a
new trial is heard.b
The third mode of appeal is by writ of error, and the
appeal is addressed, not as in the two preceding modes to
the Court which heard the cause, but is to the Supreme
Court. The Judiciary Actc provides, " that final judg-
ment and decrees in civil actions and suits in equity in a
Circuit Court, brought there by original process, or removed
there from Courts of the several States, or removed there
by appeal from a District Court, where the matter in
dispute exceeds the sum or value of two thousand dollars,
a Rule 15. >' U. S. vs. Hodge, 6 How., 284. c 1789, § 22, 1 Stat., S3.
124
exclusive of costs, may be re-examined, and reversed or
affirmed in the Supreme Court upon writ of error, whereto
shall be annexed and returned therewith, at the day and
place therein mentioned, an authenticated transcript of the
record, an assignment of errors, and prayer for reversal,
with a citation to the adverse party, signed by a Judge of
the Circuit Court or Justice of the Supreme Court, the
adverse party having at least thirty days' notice."
From this Act, it will be perceived that to entitle a party
to carry a case up to the Supreme Court, two things must
concur. The judgment must be a final judgment, and the
matter in dispute must exceed the sum of two thousand
dollars, exclusive of costs.
A final judgment is one which determines the particular
cause; it need not finally determine the right,8 and any
proceeding in which a right is litigated between parties in
a Court of Justice is a suit.b
The matter in dispute must exceed the sum of two
thousand dollars, -exclusive of costs. The amount actually
in dispute between the parties at the time of the judgment
is the criterion of the jurisdiction",6 and the subsequent
accrual of interest cannot be relied on to bring the sum
within the jurisdiction. d When the plaintiff sues on a
money demand, and claims in his pleadings more than two
thousand dollars, and obtains a judgment for a smaller sum,
the amount for which judgment is rendered is the only matter
in dispute where the defendant appeals by writ of error.
But if the plaintiff brings the writ of error, the amount
claimed in the pleadings is the matter in dispute, for if the
judgment of the Circuit Court is reversed, non constat that
he may not recover the amount claimed in the declaration.0
a Weston vs. City Council of Charleston, 2 Peters, 449; Holmes vs. Jennison, 14
Peters, 540.
b Ibid.
c Grant vs. McKee, 1 Peters, 24S; Gruner vs. the U. S., 11 How., 163.
d Knapp vs. Banks, 2 How., 73.
e Gordon vs. Ogden, 3 Peters, 33; Knapp vs. Banks, 2 How., 73; Bennett vs.
Buttenvorth, 8 How., 124.
125
Originally the writ of error issued from and was returnable
to the Supreme Court, but it having been found inconveni-
ent to apply to the Clerk of the Supreme Court for the
writ to be issued to remote parts of the Union, it was pro-
vided by the Act of 1792a that the Clerk of the Supreme
Court should transmit to the Clerks of the several Circuit
Courts the form of a writ of error, to be approved by any
two of the Judges of the Supreme Court, and the Clerks
of the Circuit Courts were authorized to issue wrrits of error
agreeably to such form, under seal of the Circuit Court,
returnable to the Supreme Court. ~Zctr&
The writ of error must be brought within £ve- years after
rendition of the judgment complained of, or, in case the
person entitled to the wnt.be non compos mentis, feme covert,
or imprisoned, then within-irve years, as aforesaid, exclusive
of the time of such disability ;'' and the Judge, on signing
the citation on any writ of error, shall take good and suffi-
cient security that the plaintiff in error shall prosecute his
writ to effect and answer all damages and costs if he fail to
make his plea good.
In the ordinary course of proceeding, the judgment
would be enforced by execution, and the debt satisfied
before the cause could be heard by a Supreme Court. To
prevent such a result, it is provided that the writ of error
may operate as a supersedeas or stay of execution where
a copy of the writ of error is lodged for the adverse party
in the Clerk's office where the record remains, within ten
days (Sundays excepted) after the rendition of the judgment
complained of, and until the expiration of the above term
of ten days, executions shall not issue in any case where a
writ of error may be a supersedeas."
The security which the Judge is required to take, before
signing a citation on any writ of error, must be in the
words of the Act, "good and sufficient security," and it is
thus left to the Court to determine the sufficiency. The
security taken is in the form of a bond, with approved
a I 9, 1 Stat., 278. » 22 g, 1789, 1 Stat.., 84 c 1789, 23 g.
126
sureties, to the defendant in error or appellee. Where the
writ of error operates as a supersedeas of execution, the
penalty of the hond must he sufficient to cover the amount
of the judgment, the costs, and any damage which may be
adjudged against him, should he fail in his appeal. a Where
the writ does not operate as a supersedeas, the penalty need
only he sufficient to cover the costs that may he awarded to
the defendant in error. b
The writ is returnable to the Supreme Court, and there
must be returned with it an authentic transcript of the
record, an assignment of errors, and prayer for reversal.
The errors which are corrected by the Supreme Court are
errors in law. All that pertains to the facts, to the weight
of testimony, the amount of damage, or to the conduct of
the Jury, are matters cognizable only in the Court below
on a motion for a new trial. In the Supreme Court, the
rulings of the Judge upon points of law alone are subject to
revision, and the Supreme Court will regard nothing else.
It is, therefore, incumbent on the party who intends to seek
in the Supreme Court a revision of the law applied to the
case on the trial, to take care to raise the questions of law
to be revised, and put the facts on the record for the informa-
tion of the appellate tribunal, and if he omits to do so in
any of the methods known to the practice of such Courts,
he must abide the consequences of his neglect. Whatever
the error may be, and in whatever stage of the cause it may
have occurred, it must appear in the record, else it cannot
be revised in a Court of Error, exercising jurisdiction
according to the course of the common law.0 It is, there-
fore, necessary to allude now to the proper mode of assign-
ing the errors for the correction of which the case is to be
carried to the Supreme Court, and of incorporating into the
record the facts necessary to a proper comprehension of the
legal points submitted for revision.
Where there is no dispute as to the facts, and consequently
no necessity for any ruling of the Court in admitting or
a Cartlett vs. Brodie, 9 Wheat., 553. b Act of 1789, £ 22.
" Suydam vs. Williamson, 20 How., 433.
127
rejecting evidence, the facts may appear on the record by a
special verdict, in which the jury find the facts and refer the
law arising thereon to the Court, or a statement of them
may he agreed upon by the parties and entered on the
record, and submitted directly to the Court for its decision,
without the intervention of a jury; or a general verdict
may be taken subject to the opinion of the Court upon the
facts agreed upon ; and in either case the aggrieved party
may bring error after final judgment, and have the questions
of law, arising upon the facts thus placed upon the record,
re-examined.
From what has been above stated, it will be seen that
a writ of error will lie upon a judgment entered on an
agreed statement of facts, signed by the counsel and
entered on the record in the Court below. In this respect,
the practice of the United States Court differs from the
practice of the English Courts, for according to the latter, a
writ of error will not in such case lie. The reason of the
difference is, that according to the United States practice,
the statement of facts is entered on the record, and the writ
of error carries it up to the appellate tribunal ; but by the
English practice, there is nothing on the record but the
general verdict, and consequently no means of ascertaining
how far the rulings of the Court below are correct.'-1
In all of the modes of carrying up a case for revision
above stated, the facts of the case are agreed upon, but it
is evident that serious and embarrassing questions may fre-
quently arise as to the admission or rejection of evidence to
establish the facts, or upon the instructions of the Court to
the jury, and it maybe desirable to submit the rulings of
the Court below upon these matters to the revision of the
appellate tribunal. This can only properly be done by a
bill of exceptions, which is the safest as it is the most com-
prehensive method of carrying up to the appellate tribunal
for revision the errors supposed to have occurred on the
trial below.
a 3 Blaekstone Com., 2T5; Tidd's Practice: United States vs. Eliason, 10 Peters,
299 ; Stimpson vs. Baltimore Railroad Company, 10 Howard, 329.
128
At common law, bills of exception on account of any
incorrect conduct on the part of the Judge who had tried
the cause at assize or nisi prius, were probably unknown or
but little in practice.
The misdirections or mistakes of the Judge could, it is
true, be corrected by a new trial, to be granted by the
Judges in banc; but as the report of the Judge who had
heard the cause was in practice conclusive as to what pro-
ceedings had been had at the trial below, it is evident that
there was no protection to the suitor from the wilful or
inadvertent misstatement of the proceedings by the Judge
in his report.
To remedy this defect in the administration of justice, the
statute of Westminster the 2nda enacted that "when one
that is impleaded before any of the Justices doth allege an
exception praying that the Justices will allow it, which if
they will not allow, if he that alleged the exception do note
the same exception and recpiire that the Justices will put to
them seals for a Avitness, the Justices shall do so; and if one
will not, another of the company shall. And if the King,
upon complaint made of the Justices cause the record to
roiue before him, and the same exception be not found in
the roll, and the plaintiff show the exception written with
the seal of a Justice put to, the Justice shall be commanded
that he appear at a certain day either to confess or deny his
seal ; and if the Justice cannot deny his seal, they shall pro-
ceed to judgment according to the same exception as it
ought to be allowed or disallowed."
Since that statute, if the Judge at nisi prius either in the
admission or rejection of testimony, or in his directions or
observations to the jury misstates the law, the counsel on
either side who consider that such a mistake may prejudice
his client, should immediately respectfully object or remon-
strate, and state the grounds of his objection, referring briefly
to authority or reasoning on the subject to show that the law
is as he claims it to be. Should the opinion of the Court
a 13 Ed. 1 c, 31.
129
still be adverse, the counsel may then publicly require the
Judge to seal a hill of exceptions, stating the point on which
he is supposed to err, or if he refuse so to do, the party
may have a compulsory writ against him, commanding him
to seal it, a if the fact alleged he truly stated, and if he
return that the fact is untruly stated, when the ease is other-
wise, an action will be against him for making a false return.
The bill of exceptions is in the nature of an appeal, exam-
inable not in the Court out of which the record issues, for
the trial at nisi prius, but in the next immediate Superior
Court upon a writ of error, after judgment given in the
Court below.1
Originally adopted as a means of obtaining from the
Judge who presided at the trial on circuit, a fair and correct
report of the proceedings, and of guarding against wilful or
unintentional error, Bills of exception are now chiefly valu-
able as presenting in a concise form to the appellate tribu-
nal the exact point for judicial determination, and constitute
in the Courts of the United States the proper and appro-
priate mode of correcting the error of a Judge on the trial
of a cause in the Circuit Court.
It lies in general for the improper admission, or rejection
of evidence,0 but if the case is not tried by a jury, the ad 'mis-
sion of evidence, which was objected to, is not the subject
of a bill of exceptions/ although the rejection of evidence
which was tendered, is ; the distinction being, that if evi-
dence is improperly admitted, the appellate tribunal will
reject it, but if the evidence is improperly rejected, the appel-
late tribunal has no means of ascertaining what it is or what
would have been its influence on the case.6
It is however, the duty of a party excepting to the admis-
sion of ( \ idence on the trial, to point out with precision the
:> Ex parte, Crane, 5 Pet., 190.
b Chitty gi neral Practice, 4 vol., page 1; 3 Blackstone, 372; Suydam vs. William-
sun. 20 Howard, 428.
c Chitty's Practice, 4—1; 2 Institute, 427.
d Field vs. The United States. 9 Pet., 202.
e Arthurs vs. Hart, 17 Howard, 12.
9
130
part objected to, so that the attention of the Court may be
drawn to it, for if the exception cover any admissible evi-
dence, it will be overruled;8 and in framing the bill of
exceptions, it is not sufficient simply to state that the evi-
dence was objected to, but the nature and grounds of the
objection must be stated.'' And the appellant will be
restricted in examining the admissibility of testimony, to
the specific objection taken to it below, as the attention of
the Court was only called to the objection then made, and
on that alone was the ruling made.0
But in addition to the objection taken by counsel to the
admission or rejection of testimony, there may be supposed
error in the summing up of the Court, or in the instructions
given by it to the jury, and a bill of exceptions is the proper
mode of carrying their errors up to the Appellate Court for
revision/
The practice is for the counsel on each side at the close
of the testimony and before argument, to submit to the
Court a copy of the instructions which the Court will be
asked to give the jury upon the law of the case, and the
argument is then directed to establish the legal correctness
of the instructions prayed for and their applicability to the
facts. The Court may refuse to instruct the jury as re-
quested, or may modify the instructions prayed for. In
either case the counsel whose instructions are refused or
modified, and who deems the refusal or modification injuri-
ous to his client, may except to the rulings of the Court in
such particular and tender his bill of exceptions to the
Court,
It is in no manner obligatory upon either party to pray for
special instructions. It is optional with them to do so, or to
leave the matter to the Court upon the arguments, and then
file exceptions to the instructions given by the Court. But
it is advisible to ask for special instructions wherever an
appeal is contemplated, for thereby the legal proposition
which counsel think applicable to the case are distinctly
a Moore vs. Bank, 13 Pet., 302. c Camden vs. Doremus, :; Howard, 515.
b Hinde vs. Lingworth, 11 Wheaton, 210. d See form in Appendix.
131
stated, the attention of the Court is specially called to them,
and their correctness is argued to the Court, and in the
event of a refusal to give them, there is no uncertainty as to
what was asked. It is advisible also for another reason, for
if a party does not ask the Court to instruct the jury upon a
particular point of the case, it is no error that the Court
omitted to so instruct them.a In order therefore to lay a
foundation for an appeal, the party should ask the Court
for the particular instruction, and if refused, the correct-
ness of the refusal can then he tested before the appellate
tribunal.11 The instructions which are asked of the Court,
should he on points of law pertinent to the issue,0 for the
Court cannot be asked to give opinions upon abstract legal
propositions/1 or on hypothetical questions which do not
belong to the case.6 It is only in the application of legal
propositions to the testimony of the case that the Court can
be asked to charge the jury, or exception taken to the ruling
of the Court, nor ran either party assume certain facts to
be established and ask the Court to instruct the jury on
those facts, for that would be to withdraw the decision on
the facts from the jury. All that the Court can properly be
asked to do, is to lay down the rule of law to be applied by
the jury, according as they find the facts/ Great care should
be taken by the counsel in framing the instructions, not only
to present all the legal views which may be taken of the
testimony in his favor, but to present them in an unobjec-
tionable form ; and when the foundation of the appeal is
the refusal of the Court to grant a particular instruction
prayed for, the highest caution is necessary, for it is not
error in the Court to refuse the instruction prayed for, unless
it ought to have prevailed in the very terms in which it was
made.5
a Pennock vs. Dialogue, 2 Pot.. 1.
'■ Smith vs. Carrington, 4 Cranch, 71.
° Ibid.
d Brooks vs. Marbury, 11 Wheat., 94.
« Elleiy vs. Bank of United States, 11 Wheat., 7.3.
1 Patterson vs. Jenks, 2 Pet., 226.
eViolett vs. Patton, 5 C'r.. 142: Brooks vs. Marbury. 11 Wheat.. 94: Buck v-.
Chesapeake Insurance Co., 1 Pet.. 151.
132
When the Exception should be Tendered. — It is a
settled principle that no bill of exceptions is valid which
is not for matter excepted to at the trial, and it must appear
by the manuscript of the record not only that the instruc-
tions were given or refused at the trial, but also that the
party who complains of them excepted to them while the
jury were at the bar. The reason of such strictness in
requiring the exception to be taken and noted before the
jury retire from the bar, is that the Court, thus informed
that exception is taken to its instruction to the jury, has
the opportunity of reconsidering its opinion, or explaining
it more fully to the jury. The bill of exceptions, whether
to the rejection or admission of evidence, or to the instruc-
tions of the Court to the jury, need not be formally drawn
and signed before the jury retire from the bar. It is suffi-
cient if the exception is taken at the trial and noted with
the requisite certainty by the Judge, and it may afterwards
<lnring the term, according to the rules of the Court, be
reduced to form and sealed by the Judge, and such is in
fact the general practice. The bill of exception may be
reduced to form and sealed by the Judge after the expira-
tion of the term by consent of the parties, or by order of
the Judge made during the term, allowing the additional
period within which to prepare it. But in all such cases
the bill of exception is signed nunc pro tune, and it purports
on its face to be the same, as if actually reduced to form
and signed pending the trial, and it would be a fatal error
if it were to appear otherwise, for the original authority
under which bills of exception are allowed has always been
considered to be restricted to exceptions taken pending the
trial and ascertained before verdict. a
Having shown when a bill of exceptions should be taken,
and at what time it should be tendered, it remains to note
what the bill of exceptions should contain.
The object of the bill of exceptions is to carry up to the
s Walter vs. The United States, 9 Wheat., 657; Turuer vs. Yates, 10 How., 29;
Ex parte, Eroadstreet, 4 Pet., 102; Phelps vs. Mayer, 15 How., 100.
133
appellate tribunal the points of law erroneously ruled by
the Court below, in the rejection or admission of testimony,
and in the instruction to the jury, for it is to errors in law
alone that the attention of the appellate tribunal will be
directed, it will not determine the weight or effect of
evidence, or examine into it, to ascertain what facts are
established by it, this is the duty of the subordinate tri-
bunal. It is, therefore, improper to incorporate into the
bill of exceptions any more of the evidence than is
necessary to present the legal questions raised and noted at
the trial ;a and in like manner it is improper to place on the
record the charge of the Court in extenso, only so much of
it should be contained in the bill of exception as embraces
matter of law complained of and excepted to at the trial/'
It has been seen that, although the exceptions must be
noted at the trial and before the Jury retire, yet that the
bill of exceptions is not formally settled until the trial is
over. When formally prepared it is tendered to the Judge,
who compares it with the exceptions tendered to him at the
trial and his notes of the case, and if correct, signs and
seals the bill of exceptions, as of the day the verdict was
rendered. The writ of error is then drawn out,0 and upon
the security required by the Act being given, and approved
by the Judge, is sealed by the Clerk of the Court and
allowed by the Judge, who also signs it. When the writ
of error operates as a supersedeas, a copy for the adverse
party must be lodged 'in the Clerk's office, where the record
remains, within ten days after the rendition of judgment.
But whether the writ of error is to operate as a supersedeas,
or not, a citation must in every case be issued and served.
The citation4 is directed to the adverse party, and is signed
by the Judge who allows the writ of error, and bears
a Graham vs. Bayne, 18 How., 60; York & Cumberland E. R. Co. vs. Meyers,
18 How., 251 ; Pennock vs. Dialogue, 2 Pet., 1 ; Zeller vs. Eckert, 4 How., 297.
* Zeller vs. Eckert, 4 How., 297 ; Evans vs. Evans, 7 Wheat., 426 ; Carver vs. Jack-
>on, 4 Pet., 1; Ex parte, Crane, 5 Pet., 195.
c See form in Appendix.
d See form in Appendix.
134
date of the day of signature. It must be served at least
thirty days before the return term of the writ. The service
is by copy personally served upon the adverse party or his
attorney. The service upon the latter is valid even though
he has retired from the case subsequent to the rendition of
the judgment.11 Proof of the service must be made by
affidavit of the party serving it, annexed to or endorsed
on the original citation.
The writ of error, the bill of exceptions, the bond, and
the original citation, with proof of service endorsed, being
deposited with the Clerk of the Circuit Court, that officer
makes out a transcript of the record, and of all the pro-
ceedings in the cause, under his hand and the seal of the
Court, and the record must be a complete record, contain-
ing in itself, without references aliunde, all the papers,
exhibits, depositions, and other proceedings, which are
necessary to the hearing.1'
The transcript of the record, the original writ of error,
the original citation with proof of service, and a copy of
the bond to the defendant in error, are then sent to the
Clerk of the Supreme Court, with directions to file the
transcript and docket the cause. At the same time there
must be sent to the Clerk of the Supreme Court the sum
of two hundred dollars, or a bond for that amount with
approved sureties, conditioned to satisfy to the Clerk of
the Supreme Court his fecs.c
The docketing of causes is regulated by the ninth Rule
of the Supreme Court.d The appearance of defendant in
error, the call of the docket, the briefs and abstracts of
points and authorities, and the order of argument, are all
regulated by the rules of the Supreme Court, which will be
found in the Appendix.
a United States vs. Curry, P> How., 110. c See form of Bond in Appendix.
b Rule 8, Supreme Court. d See Appendix.
135
DISCHARGE OF INSOLVENTS.
We have seen that under the State insolvent laws a debtor
in execution can obtain a discharge, by which not only is
his body freed from arrest, but all judgments against him
and all claims in suit are completely extinguished, and his
future acquisitions not liable for their payment. Xo similar
provision exists in the laws of the United States, but inas-
much as it has been stated in a previous part of this sketch
that the Courts of the United States administer the laws of
the States in which they hold their sessions, it remains to
enquire how far the insolvent laws of a State are operative
in the Courts of the United States, either as a plea in bar
to a suit instituted, or to procure the discharge of a defend-
ant in the custody of the Courts of the United States under
a <■<*. sa.
There are few questions of constitutional law which have
been more fully and ably argued, and hardly one upon
which judicial opinions have been so equally divided. A
careful and thorough examination of the subject would
require a treatise. All that can be attempted consistently
with the design of this work, is a statement of the leading
principles decided, and a reference to the cases in which
the law was declared.
The question was for the first time brought before the
Court in the celebrated case of Sturges vs. Crownmshield.3,
It was an action in the Circuit Court of the United States
for Massachusetts, upon two promissory notes, made by
defendant in March, 1811, payable to plaintiff. The defend-
ant pleaded his discharge under the insolvent law of Xew
York, passed in April, 1811, and which discharged the
debtor from all liability for any debt contracted previous to
his discharge.
The eighth section of the first article of the Constitution
of the United States provides that Congress " shall have
power" to '"establish uniform laws on the subject of bank-
ruptcies throughout the United States." The first question
* ■
a 4 Wheaton, 122.
136
then that arose in the ease was -whether since the adoption of
the Constitution of the United States any State had author-
ity to enact a bankrupt law, or whether the power was
exclusively vested in Congress. In the argument at the bar
the attempt was made to discriminate between what were
insolvent laws and what were bankrupt laws, and the power
of the State to enact the one and not the other was ear-
nestly pressed. In delivering the opinion of the Court,
Chief Justice Marshall admitted the difficulty of any satis-
factory discrimination between insolvent laws and bankrupt
laws, and declining to enter into the delicate inquiry re-
specting the precise limitations which the several grants of
power to Congress in the Constitution may impose upon the
States, further than was necessary for the decision of the
ease before the Court, held that until the power to pass
uniform laws on the subject of bankruptcies was exercised
by Congress, the States had the right to pass a bankrupt law,
provided that such law did not impair the obligation of
contracts within the meaning of the tenth section of the
eighteenth article of the Constitution of the United States.
The main question then arose, was the Act of Xew York
which liberated the person of the debtor and discharged him
from all liability for any debt previously contracted, on his
surrendering his property in the manner prescribed — a law
impairing the obligation of contracts.
What is a contract, and what the obligation of it, and the
distinction which exists between matters which adhere to
the obligation and those which merely pertain to the rem-
edy to enforce the obligation, were fully and elaborately
argued by the bar and discussed by the Court. The opinion
delivered by Chief Justice Marshall, goes to the full extent
of declaring such insolvent laws to be laws impairing the
obligation of contracts ; but the judgment of the Court, care-
fully guarded and limited in its terms, went simply to the
point that the particular Act pleaded so far as it attempted
to discharge the contracts on which the suit was instituted,
was a law impairing the obligation of contracts, and the
plea of a discharge under it, invalid. It was a decision on
the particular case, and not a rule of law, which was de-
137
clared. As said by Mr. Justice Johnson, subsequently in
the case of Ogden vs. Sanders, the "judgment partook as
much of a compromise as of a legal adjudication."
In Sturges vs. Crowninshield, the Act was passed by the
State of New York, after the making of the contract. In
the next case which arose," the State law under which the
discharge was obtained, was passed before the contract was
made. It was held, however, that this circumstance "made
no difference in the application of the principle," and the
case was decided in conformity to the ruling in Sturges and
Crowninshield.
In both of the above cases the discharge under the State
law was pleaded in bar of a suit brought in the United States
Court, where of course the litigation was between citizens
of different States ; but in the next case which arose,1' the
question was between citizens of the State of Pennsylvania
in the Courts of that State, and under a law of the State,
passed as in Sturges & Crowninshield, after the contract was
made. The Supreme Court of Pennsylvania sustained the
law of the State, and held the plea of discharge under it
valid. The case was carried by writ of error to the Su-
preme Court of the United States. That Court held that
the case was not distinguishable from the cases already
decided, except by the circumstances that the plaintiff and
defendant were citizens of the same State at the time the
contract was made, and remained such at the time the suit
was instituted in its Courts, but that these facts made no
difference ; and the judgment of the Supreme Court of
Pennsylvania was reversed, and thereby the plea of dis-
charge declared invalid.
After the decision of these cases, the doctrine rested, until
the case of Ogden vs. Sanders.0 This is the leading case
on the subject. The facts of it are as follows : Jordan, a
citizen of Kentucky, drew bills of exchange upon Ogden,
a citizen of New York, in favor of Sanders, a citizen of
Kentucky. The bills were accepted by Ogden, who sub-
a McMillan vs. McNeil, 4 Wheaton, 209.
b Farmers & Mechanics Bank of Pennsylvania vs. Smith, 6 Wheaton, 131.
0 12 Wheaton, 21-1.
138
sequently failed, and procured his certificate of discharge
under the insolvent laws of New York, and removed to
Louisiana. Sanders brought liis action on the bills in the
United States Court for the District of Louisiana, and
Ogden pleaded his discharge, and the cause came by writ
of error to the Supreme Court of the United States.
From a mere perusal of the facts it would appear that
the case was undistinguishable in principle from those
already decided. A more critical examination of the facts,
and comparison with the cases previously decided, will,
however, show that the exact case made was never before
submitted to the Court. The principles governing this
class of cases had been declared by the Chief Justice in
Sturges vs. Crowninshield, but, as already observed, those
principles were not essential to the decision of that case,
and had not received such confirmation from time or subse-
quent adoption as to give to them the weight of settled law.
The whole field was open. The distinction which existed
between bankrupt and insolvent laws, the exclusive power
of Congress to pass bankrupt laws, the power of the States
to enact them in the absence of any uniform Jaw promul-
gated by Congress, what was a contract, what the obliga-
tion of it, what pertained to the contract, and what to the
remedy, and the various modifications and incidents of the
law governing contracts arising from our complex condition
of sovereign States united in a federative Union, were all
discussed, defined, criticised, and elaborated, by some of
the ablest lawyers who have ever graced the Supreme
Court. The Court itself was almost equally divided,
Justices Washington, Johnson, Thompson, and Trimble,
composing the majority, while Chief Justice Marshall, and
Justices Story, and Duvall, composed the minority.
To show the difference between the case of Ogden and
Sanders, and the cases previously decided, it is necessary
briefly to state the facts of each.
In Sturges vs. Crowninshield, and in Farmers and
Mechanics Bank vs. Smith, the Act was passed after the
contract sued on was made. In McMillan vs. McNeil, the
Act of Louisiana, under which the discharge was had, was
139
passed before the contract was made. But at the time the
contract was made, neither plaintiff nor defendant were
citizens of Louisiana, and, therefore, the law of Louisiana
neither governed the contract nor the parties to it.
In the case of Ogden vs. Sanders, the contract (the
acceptance) was made in !N"ew York, between a citizen of
ISTew York and a citizen of another State, and the discharge
was under a law of New York, in force at the time the
contract was made.
The decision was, that the insolvent or bankrupt law of
a State discharging the person and future acquisitions of a
debtor, is not a law impairing the obligation of contracts,
so far as it respects contracts made subsequent to the passage
of the law; and a certificate of discharge under it is valid in
cases where the contract was made between parties, citizens
of the State under whose law the discharge was obtained, and
in whose Courts the certificate is pleaded. But a certificate
of discharge under a State insolvent or bankrupt law is
invalid and cannot be pleaded in bar of an action brought
by a citizen of another State in the Courts of the United
States.
The reasoning which supports this latter clause is, that
the insolvent law of a State operating upon future con-
tracts being constitutional, it is within the legislative power
of the State to enact it^ but that a State can legislate only
over its own citizens and territory, and can, therefore, only
grant a valid discharge as between its own citizens and in
its own Courts, and could not effect by its legislation the
citizens of other States.
" The provision in the Constitution," says Justice John-
son, " which gives the power to the general government to
establish tribunals of its own in every State, in order that
the citizens of other States or sovereignties might therein
prosecute their rights under the jurisdiction of the United
States, had for its object an harmonious distribution of
justice throughout the Union; to confine the States, in
the exercise of their judicial sovereignty, to cases between
their own citizens ; to prevent, in fact, the exercise of that
very power over the rights of citizens of other States, which
140
the origin of the contract might he supposed to give to
each State." The citizens of other States are thus exempted
from the jurisdiction of the State tribunal, they cannot he
forced into it or made amenable to laws enacted for its
guidance by an authority to which they owe no allegiance.
"No one," says Mr. Justice Johnson (in the same opinion,
page 367) has ever imagined that a prisoner in confinement
under process from the Courts of the United States could
avail himself of the insolvent laws of the State in which
the Court sits. And the reason is, that those laws are
municipal and peculiar, and appertaining exclusively to
the exercise of State power in that sphere in which it is
sovereign, that is, between its own citizens, between suitors
subjected to State power exclusively, in their controversies
between themselves.
" I, therefore, consider the discharge, under a State law,
as incompetent to discharge a debt due a citizen of another
State, and it follows that the plea of a discharge here set up
is insufficient to bar the rights of the plaintiff."
The same ruling was made in the case of Boyle vs.
Zacharie & Turner,11 in which it was said by the Chief
Justice, that " the principles established in the opinion of
Mr. Justice Johnson, in the case of Ogden and Sanders,
are to be considered no longer open for controversy, but
the settled law of the Court." And to the same point is the
case of Cook vs. Moffatt.".
In all of the above cases the action was instituted in the
Courts of the United States, where, of course, the parties
litigant were citizens of different States, and the discharge
under the insolvent laws of a State invalid. If, however,
the plaintiff, instead of litigating his rights in the Courts
of the United States, goes voluntarily into the Courts of
the State, under whose law the insolvent is discharged, he
is bound by the discharge to the same extent as the citizens
of the State are bound.0
From this review of the cases, it will be perceived that,
a 6 Pet., 348 ; S. C, 6 Peters, 641.
b 5 Howard, :507.
c Ogdeu vs. Sanders, 12 Wheaton, 364 ; Clay vs. Smith, 3 Peters, 411.
141
while some of the principles declared in the cases anterior
to.Ogden and Sanders have been overruled or modified,
the cases themselves have not been overruled. They still
subsist as law, and, together with the case of Ogden and
Sanders, constitute one system. From them, I think, the
following eonclusions may be deduced :
1st. That a State has the right to pass a bankrupt or
insolvent law in the absence of any uniform law promul-
gated by Congress.
2d. That the insolvent law of a State which impairs the
obligation of an existing contract, is unconstitutional and
invalid.
3d. That the insolvent law of a State which discharges
the person and future acquisitions of a debtor, is not a law
impairing the obligation of contracts entered into after the
passage of the Act, and is not unconstitutional; but it is
binding only on its own citizens, and valid only in its own
Courts.
4th. That a State insolvent law, although constitutional
and binding on the citizens and Courts of the State enact-
ing it, does not affect creditors or citizens of another State,
and a certificate of discharge under it is not valid as a plea
in bar, in the Courts of the United States, or the Courts of
another State.
5th. That if a citizen of another State voluntarily sub-
mits himself to the Courts of a State, he is bound by the
insolvent laws of that State to the same extent that a citizen
of the State would be.
While, however, the Courts of the United States do not
allow the discharge of an insolvent under the laws of a
State to have any operative effect against proceedings in
the Courts of the United States, the law.- of the United
States have provided for the discharge ol i debtor from
imprisonment under the ca. sa., leaving, however, the lien of
the^. fa. unimpaired.
The authority to the Courts of the United States to grant
a discharge from imprisonment, is by virtue of the Act of
1800, (2 Stat,, 4,) the first section of the Act of 1839, (5
142
Stat., 321,) and the first section of the Act of 1841, (5 Stat.,
410.)
These Acts comprise all the direct legislation of Congress
upon the subject, and while they clearly authorize the dis-
charge, and declare the effect of it, they leave the mode
of obtaining the discharge a matter of some uncertainty.
This is especially the case in this district. The applications
for discharge have been rare, but few points have been
presented for judicial construction, and nearly the whole
practice governing the class of eases has yet to be moulded
into form by the Court.
The first section of the Act of 1800 gives to the debtor
iu execution the benefit of the jail limits to the same extent
Section 1. An Act/or the relief <■/ j>rr*nn>< imprisoned for Debt. — Be it enacted by
the Senate and Houseof Representatives oj tin United States <>f America, in Congress
assembled, That persons imprisoned on process issuing from any Court of the United
States, as well at the suit of the United States as at the suit of any person or per-
sons in civil actions, shall he entitled to like privileges of the yards or limits of the
respective gaols, as persons confined in like case* on process from the Courts of the
respective States, are entitled to, and under the like regulations and restrictions.
Section 2. And be it further enacted, That any person imprisoned on process of
execution issuing from any Court of the United States in civil actions, except at the
suit of the United States, may have the oath or affirmation hereinafter expressed,
administered to him by the Judge of the District Court of the United States, within
whose jurisdiction the debtor may be confined ; and in case there shall be no district
Judge residing within twenty miles of the gaol wherein such debtor may be confined,
such oath or affirmation may be administered by any two persons who may be com-
missioned for that purpose by the district Judge. The creditor, his agent or attor-
ney, if either live within one hundred miles of the place of imprisonment, or within
the district in which the judgment was rendered, having had at least thirty days
previous notice by a citation served on him, issued by the district Judge, to appear at
the time and place therein mentioned, if he see fit to show cause why the said oath
or affirmation should not be so administered : at which time and place, if no suffi-
cient cause, in the opinion of the Judge, (or the commissioners appointed as afore-
said,) be shown, or doth from examination appear to the contrary, he or they may, at
the request of the debtor, proceed to administer to him the following oath or affirm-
ation, as the case may be, viz: "You soleninl}' (swear or affirm)
that you have no estate, real or personal, in possession, reversion or remainder, to the
amount or value of thirty dollars, other than necessary wearing apparel: and that
you have not, directly or indirectly, given, sold, leased, or otherwise conveyed to, or
intrusted any person or persons with all or any part of the estate, real or personal,
whereof you have been the lawfnl owner or possessor, with any intent to secure the
same, or to receive or expect any profit or advantage therefrom, or to defraud your
creditors, or have caused or suffered to be done any thing else whatsoever, whereby
any of your creditors may be defrauded." Which oath or affirmation being admin-
istered, the Judge or commissioners shall certify the same under his or their hands
143
as is allowed to persons confined under process from the
State Court, but it was declared by the Supreme Court, in
the case of the United States vs. Knight,8 that the right of
a debtor to the benefit of the jail limits did not rest upon
the Act of 1800, but upon the third section of the Act of
1828, and that the jail limits, to which a defendant in
execution was entitled, were those fixed by the laws of the
several States at the date of that Act, which, in this State,
were three hundred and fifty yards in every direction from
the prison walls. b The subsequent legislation of the State,
extending the jail limits to the judicial district, have never
been adopted by any Act of Congress or rule of Court,
and, therefore, do not apply to defendants in execution, on
to the prison-keeper, and the debtor shall be discharged from his imprisonment on
such judgment, and shall not be liable to be imprisoned again for the said debt, but
the judgment shall remain good and sufficient in law, and may be satisfied out of any
estate which may then, or at any time afterwards, belong to the debtor. And the
Judge or commissioners, in addition to the certificate by them made and delivered to
the prison-keeper, shall make return of their doings to the district Court, with the
commission, in cases where a commission hath been issued, to be kept upon the files
and record of the same Court. And the said Judge, or commissioners, may send for
books and papers, and have the same authority as a Court of record, to compel the
appearance of witnesses, and administer to them, as well as to the debtor, the oaths
or affirmations necessary for the inquiry into, and discovery of the true state of the
debtor's property, transactions and affairs.
Section :s. And be it further enacted, That when the examination and proceed-
ings aforesaid, in the opinion of the said Judge or commissioners, cannot lie had
with safety or convenience in the prison wherein the debtor is confined, it shall be
lawful for him or them, by warrant under his or their hand and seals, to order the
marshal or prison-keeper, to remove the debtor to such other place convenient and
near to the prison as he or they may see fit; and to remand the debtor to the same
prison, if upon examination or cause shown by the creditor, it shall appear that the
debtor ought not to be admitted to take the above recited oath or affirmation, or that
he is holden for any other cause.
Section 4. And be it further enacted, That if any person shall falsely take any
oath or affirmation, authorized by this Act, such person shall be deemed guilty of
perjury, and upon conviction thereof, shall suffer the pains and penalties in that case
provided. And in case any false oath or affirmation be so taken by the debtor, the
Court, upon the motion of the creditor, shall recommit the debtor to the prison from
whence he was liberated, there to be detained for the said debt, in the same manner
as if such oath or affirmation had not been taken.
Section 5. And be it further enacted, That any person imprisoned upon process
issuing from any Court of the United States, except at the suit of the United States
in any civil action, against whom judgment has been or shall be recovered, shall be
a 14 Pftcrs, 316. b State Act, 1788, 5 Statutes, 7S.
144
process issuing from the Courts of the United States, for,
as we have frequently had occasion to see in the course of
this sketch, State laws propria vigore cannot control the pro-
ceeding's in the Courts of the United States.
The benefit of the jail limits are obtained in the same
manner as in the State Court, by giving bond to the
Marshal not to transgress the limits, and it is presumed that
the same distinction which exists in the State Court between
arrest on mesne process and arrest on final process would
be ol (served in the Courts of the United States, and a debtor
on mesne process he, in like manner, allowed the benefits
of the jail limits. Such seems to he the fair construction
of the Act of 1839, which adopts the same "-restrictions
and conditions" upon imprisonment for debt as are pro-
vided by the State laws; but the point has never been ruled
by the Court in this district.
The benefit of the jail limits being obtained, the next
step is to obtain the discharge. And the debtor applying
entitled to the privileges and relief provided by this Act, after the expiration of thirty
days from the time such judgment has been or shall be recovered, though the cred-
itor should not, within that time, sue out his execution, and charge the debtor there-
with.
Approved, January 6, 1800.
An Act to abolish Imprisonment for licit in certain cases. — Tie it enacted by the
Senate and House of Representatives of tin United States of America in Congress
asst milled, That no person shall be imprisoned for debt in any State, on process issu-
ing out of a Court of the United States, where by the laws of such State, imprison-
ment for debt has been abolished; and where by the laws of a State, imprisonment
for debt shall be nllowed, under certain conditions and restrictions, the same con-
ditions and restrictions shall be applicable to the process issuing out of the Courts
of the United States; and the same proceedings shall be had therein, as are adopted
in the Courts of such State.
Approved, February 28, 1839.
.l/i Act supplementary to an Act to abolish Imprisonment for Debt in certain cones —
l',c it enacted by the Senate mul Bouse of Representatives <>f the United States of
Am rirn in Congress assembled, That the Act entitled "An Act to abolish imprison-
ment for debt in certain cases, approved February twenty-eighth, eighteen hundred
and thirty-nine, shall be so construed as to abolish imprisonment for debt, on pro-
cess issuing out of any Court of the United States, in all cases whatever, where, by
the laws of the State in which the said Court shall be held, imprisonment for debt
has been, or shall hereafter be, abolished.
Approved, January 14, 1841.
145
for his discharge may claim it under the ten day or ninety
Act, in the same manner as he could were the application
pending in the State Court. Under whatever Act the dis-
charge may he obtained, it, of course, only extends to the
release of the person of the debtor. The Act of 1800, to
a certain extent, regulates the proceeding, but it has been
ruled by the Supreme Court that the Act of 1800 does not
alone regulate the practice. The third section of the Act
of 1828 provides, that "writs of execution and other final
process, and the proceedings thereupon, shall be the same as
are now used in the Courts of such State." These words,
"proceedings thereupon," have been held by the Supreme
Court8, to " include all the laws which regulate the rights,
duties, and conduct of officers in the service of such pro-
cess, according to its exigency, upon the person or prop-
erty of the execution debtor, and, also, all the exemptions
from arrest or imprisonment under such process created by
those laws;" or, as subsequently said,b they "include all
the regulations and steps incident to the process, from its
commencement to its termination, as prescribed by the
State laws, so far as they can be made to apply to the
federal Courts."0
By the Act of 1828, section 3, and the decisions constru-
ing it, the State laws of the several States in force at the
passage of the Act, have been adopted by it as incident to
the remedy, and as governing the proceedings. They are
cumulative, and in addition to the Act of Congress of 1800,
both being in force.d
But while it is said that the proceedings upon final pro-
cess in the Courts of the United States are to be the same
as existed in the State Courts at the passage of the Act of
1828, and that the exemptions from arrest or imprisonment
under the State laws then in force, apply equally to defend-
a Beers vs. Houghton, 9 Peters, 362.
b Duncan vs. Dart, 1 How., 304.
c See also U. S. vs. Knight, 14 Peters, 301 ; Amis vs. Smith, 16 Peters, 312.
d Duncan vs. Dart, ] How., 310.
10
146
ants in the United States Courts, it must be borne in mind
that these State laws do no more than furnish a rule of
practice to the United States Courts, and can by no means
make the result of proceedings under them binding on the
Courts of the United States. This question was presented
to the Circuit Court lor this district in the case of Hunt vs.
Cohen & Cohen. The defendants had been arrested under
ca. so. issuing from the State Court, and had been discharged
under the State law. The effect of the discharge according
the State Act of 1750, is to exempt the debtor from suit for
twelve months after the discharge. Before the twelve
months had expired, the defendants were arrested under ca.
sa. issuing from the Courts of the United States. The de-
fendants moved that the arrest by the Marshal be set aside,
contending that as the Act of 1828 adopted the proceedings
in the State Courts, and the exemptions from imprisonment
and arrest allowed by the State laws, they were equally
exempt from arrest in the United States Court. But after
an elaborate review of the cases, Magrath, J., delivering the
opinion of the Court, said: "The proposition is specious
but unsound. The Act of 1828 only says that as in the
Courts of the State a discharge shall protect from its pro-
cess the person relieved, so in the United States Courts a
discharge by it according to the laws of the State, shall pro-
tect from its process, the person discharged b}' its order.
Beers vs. Haughton,a has decided that the Court may by a
rule adopt the result of the action of a State Court, and if
the Court can do so by a rule, Congress can do so by an
Act. But no such rule is in this Court, and no such Act of
Congress has been passed, and without them the Actb must
be taken to mean, that the same proceedings are to be taken
so far as they can be, and the same discharge granted, so far
as it can be ; but these proceedings and that discharge are
to take place and be given in the Courts of the United
States, and relate only to its own proceedings and those
affected by them. The Courts of the State and of the
» 9 Peters, 359. b Of 1828.
147
United States are independent of each other, neither can
control the other, and in the recognition of their mutual
independence is to be found one of the chief elements of
the good which they were formed to produce, and I now
hold that although the form of process and modes of pro-
ceeding are the same, yet the jurisdiction from which they
issue, by which they are ordered, and for the satisfaction of
the judgments of which they are directed, is essentially
separate and distinct. In the true and just exercise of the
powers with which they are each clothed, the lines in which
they move are parallel and never meet." The defendants
were accordingly ordered to institute proceedings in the
United States Courts if they desired to obtain a discharge
from the arrest under the ca. sa. issuing from the United
States Court.
The practice regulating the proceedings to obtain the dis-
charge is the same as in the State Court, and all the modes
of exception or defense furnished by the State law to the
creditor or debtor, can be used to the same extent and in
like manner in the Courts of the United States as in the
State Court.
APPENDIX.
Below will be found a few forms showing the tra^txi; ( on
mode of stating the cause of action in the writ.
To answer to (plaintiff) in a plea of trespass on A!-Mm|pMt
the case, &c, as also for certain promises and as-
sumptions by the said {defendant) to the said {plain-
tiff) made and not performed to the damage of the
said (plaintiff) one thousand dollars.11 rcfn^Bond
To answer to {plaintiff) in a plea that he render
to him the said (plaintiff) the sum of b dollars,
which to him he owes, and from him unjustly
detains to his damage ten cents.
To answer to (plaintiff') who hath survived one Same bj
\i ..</ / surviving
A B, deceased in a plea, &c. obligee.
To answer to (plaintiff) assignee of Sheriff gSEd^j!
of Charleston district, according to the form and
effect of the statute in such case, made and pro-
vided in a plea, that, &c.
To answer to (plaintiff) in a plea, that he render
to him the sum of five hundred dollars,0 which to
him he owes, and from him unjustly detains to his
damage one thousand dollars.11
a The damages should be laid at double the sum due.
b The penalty of the bond.
c The face of the note.
d When the debt is secured by a penalty, as in the case of bonds, the
damages laid arc nominal ; but when the action is for the specific debt,
the damages should be laid at a sum sufficient to cover interest; and it
is usual to lay them at double the debt, as in assumpsit. See Chitty's
Pleading, 1, page 108, title, Debt.
signee.
Of Sherifl
Debt on
sealed note
merit.
150
On judg- To answer to (plaintiff) assignee of Samuel Brass,
in a plea of debt, that he render to him the sum of
five hundred dollars, which the said Samuel Brass,
in tlie year of our Lord, 1855, by the consideration
and judgment of the Court of Common Pleas of
said State at Charleston, for the district of Charles-
ton, recovered against the said (defendant), and after-
wards assigned to the said (plaintiff), which said
sum the said (defendant), to him the said (plaintiff)
owes, and from him unjustly detains to his damage
one thousand dollars.
covenant. To answer to (plaintiff) in a plea that he perform
to him, the said (plaintiff), the covenant between
them, made according to the form, force and effect
of a certain indenture of release to the said (plain-
tiff), by the said (defendant) made, and which the
said (defendant) hath lately broken, to the damage
of the said (plaintiff) one thousand dollars.
Detinue. To answer to (plaintiff'), in a plea that he render
to him (here insert chattels for which action is brought),
being of the value of dollars, which from him
he unjustly detains.
f.xd-ucto To answer to (plaintiff) in a plea of trespass on
the case, &c, to the damage of the said (plaintiff)
one thousand dollars.
slander. To answer to (plaintiff) in a plea of trespass, on
the case, &c, and also for certain false, malicious
and defamatory words spoken by the said (defend-
ant) of and concerning the said (plaintiff), to his
damage one thousand dollars.
Libei. T° answer to (plaintiff) in a plea of publishing
of and concerning the said' (plaintiff) a certain false,
scandalous and defamatory libel to the damage of
the said (plaintiff) one thousand dollars.
To answer to (plaintiff) in a plea, wherefore with
force and arms, he, the said (defendant), at Charles-
ton, in the district of Charleston and State afore-
said, upon the said (plaintiff') did make an assault,
151
and him, the said (plaintiff), did wound and ill- ^'e'pCTson
trout, and other wrongs and enormities to him,
then and there did against the peace and dignity
of the State aforesaid, and to the damage of the
said (plaintiff) one thousand dollars.
Upon a certain slave named Joe, the property of '^'"1ee.on
the ( plaintiff), and so on as above, laying the damages
to the ( plaintiff.)
Wherefore, with force and arms, he, the said penalty.
(defendant), (state cause of action according to tic cir-
cumstances), and severely injured, bruised, damaged
and destroyed the said (chattels, specifying them), the
property of the said (plaintiff) as aforesaid, to his
damage one thousand dollars.
To answer to (plaintiff) in a plea of trespass, f^ty.t0
wherefore, with force and arms, the said (defendant)
broke and entered the close of the said (plaintiff),
in parish, in the district of and State
aforesaid, and the fences in said close did pull and
break down, and did break, cut down, dig up, and
destroy the timber, trees, grass and earth of him,
the said (plaintiff), within the said close then grow-
ing and being and of great value, and other wrongs
and enormities then and there did against the peace
and dignity of said State, and to the damage of the
said (plaintiff) one thousand dollars.
By the Act of 1791, 5 Stat., 170, the action of g^gf *°
ejectment is abolished, and "the method of trying
the title to land or tenements " ordered to be by
trespass. The writ is the ordinary writ above
given, of trespass quare clausum fregil, the plaintiff
or his attorney endorsing on the original and copy
writ, a notice that the action is brought to try the
title, as well as for damages. See Act of 1791, 7
Stat., 270.
To answer to (plaintiff) in a plea of trespass on Trover-
the case, &c, and also for the disposing and convert-
ing to his own use, of a certain negro slave, named
152
Thomas, of the proper goods and chattels of the
said (plaintiff), to the damage of the said (plaintiff)
one thousand dollars.
If the writ is
Byoragainst To " summon " or " to answer to " A B, executor
an executor.
of the last will and testament of N M, deceased.
Byoragainst To " summon " or " to answer to " A B, adminis-
Auniinistra-
tor- trator of all and singular the goods and chattels,
rights and credits, which were of !N" M, deceased,
at the time of his death, who died intestate.
Byoragainst To " summon " or " to answer to " AB, adminis-
admims tra-
tor, de bonis trator of all and singular the goods and chattels,
rights and credits, which belonged to G W, de-
ceased, at the time of his death, who died intestate,
unadministered by E F, also deceased, late admin-
istrator of the said G W.
By infant, To an swer to A B, an infant, who sues this action
per
guaniian. ],y q j)? his guardian, duly appointed in a plea, &c.
By surviv- To answer to P G & T M, who have survived one G
ing copart-
ners. \y m i\ie lifetime of the said G W, copartners in
trade under the name and firm of P G & Company
in a plea, &c.
The declaration and pleadings must of course vary accord-
ing to the cause of action, and the proper precedents will
be found in the works on pleading.
Printed forms of the judgments in general use are in the
hands of every lawyer, and nothing need be said as to the
proper mode of filling them up.
The executions both of fi.fa. and ca. sa. require no expla-
nation as to the proper mode of filling them up, except in
the single instance of fi. fa. vs. Executor or Administrator,
who is liable de bonis propriis, the form of which is as
follows :
153
The State of South Carolina :
To all and singular the Sheriffs of the said State — Greeting.
You, and each of you, are hereby commanded,
without delay, that of the goods, chattels, houses and lands,
and other hereditaments and real estates which were of CD,
at the time of his death, in the hands of G W, executor of
the last will and testament of C D, deceased,
you cause to he levied a certain debt of
which
in the Court of Common Pleas, before the Justices of the
said Court, at lately recovered against the said C D.
And Also, for damages, which
sustained, as we'll by reason of the detention of the said
debt, as for costs and charges, by expended in
and about prosecuting suit in that behalf, whereof the
said C I.) is
convicted, as appears on record : if he have so much of the
goods and chattels, houses, lands and other hereditaments
and real estates of the said C I) in his hands to be adminis-
tered; or if he have not, then that you cause the said debt,
damages, costs and charges to be levied of the proper goods
and chattels, houses, lands and other hereditaments and real
estates of the said G AV.
And that y<»u have the money before the said Justices of the
said Court of Common Pleas, to be holden at on
the in next, to render to the
for debt, damages, costs and charges aforesaid.
And have you this writ before the Clerk of the said
Court, at according to law.
AVitxess, Esquire, Clerk of the said Court, at
the day of in fin gear of our Lord one
thousand fight hundred >md , and in the gear of the
Sovereignty and Independence of the United States of America.
Plaintiff's Attorney.
154
Sci.fa. vs. Executor, to assess damages after interlocutory
judgments. See ante, page 28.
The State of South Carolina:
J], all and singular tin Sheriffs of the said Shite — Greeting.
Whereas A B, lately in the Court of Common Pleas for
the district of Charleston and State aforesaid, on the
day of A. D., 18 , impleaded C D, in an action on
promises, ("/• of debt, $c, as the case may be,) declaring against
him in the same action ; for that whereas, &c, (here recite the
declaration,) to the damages of the said A B $ , as he
said, and therefore he brought his suit, &c. And such pro-
ceedings were thereupon had in the said Court of Common
Pleas, that afterwards, to wit : on the day of A. D.
18 , it was considered by the said Court that the said A B
ought to recover his damages on occasion of the promises.
And afterwards and before the issuing of a writ of inquiry
for assessing the said damages, the said C I) died, having
first duly made and published his last will and testament in
writing, and thereby constituted X M executor thereof, who
after the death of the said C D, duly proved the said last
will and testament of the said C D, and took upon himself
the execution thereof, (or if CD died intestate, say died intes-
tate, and administration of all and singular the goods, chat-
tels and credits which were of the said C I), at the time of
his death, was granted to X M,) as now appears. Wherefore
the said A B hath humbly besought the said Court to pro-
vide him a proper remedy in this behalf, and the said Court
being willing that what is just in this behalf should be done,
command you, and you and each of you are hereby com-
manded, that by good and lawful men of your and each of
your respective districts, you make known to the said XM,
executor as aforesaid, (or administrator,) that he be and
appear before the Justices of the said State at the Court of
Common Pleas, to be holden at Charleston for the District
of Charleston, on the day of next, to show cause,
if any he has, why the damages in the said action should
not be assessed and recovered by the said A B, and further
155
to do and receive what the Justices of the said Court shall
then and there consider of him in this behalf.
And have you this writ before the Clerk of the said Court
at Charleston, fifteen days next before the sitting thereof.
Witness D H, Clerk of the said Court at Charleston, the
day of in the year of oar Lord one thousand eight
hundred and , and in the year of the Sovereignty and
Independence of the United States of America.
Plaintiff's Attorney.
In the above form the defendant dies before writ of
inquiry executed, and the sci. fa. is against his representa-
tives. If the plaintiff dies, the sci. fa. is issued by his rep-
resentatives, and the form above is altered to that extent.
ATTACHMENT WRIT.
The State or South Carolina, )
Charleston District. J
The State of South Carolina :
To all and singular the Sheriff's of the said State — Greeting :
You, and each of you are hereby required and com-
manded, immediately to attach the moneys, goods, chattels,
debts and books of account, as also the lands, leasehold
estates, and chattels real of C D, who is absent from and
without the limits of this State, (as it is said,) in the
[l. s.] hands, power, or possession of any person or persons
whomsoever, within your, and each of your respec-
tive districts, so as to make him a party in Court before the
Justices of the Court of Common Pleas, at a Court to be
holden at the Monday next,
to answer to A B, in a plea of trespass on the case, &c,
(as in assumpsit, or to a plea of debt, ,fc, as the cause of action
may require,) pursuant to the direction of the Act of the
General Assembly of the said State, in such case made and
provided ; and, that at such time as you do execute this
15G
writ, you do summon the person, or persons, in whose
hands the said moneys, goods, chattels, debts and books of
account, lands, leasehold estates and chattels real, shall be,
by serving him, her, or them, with a true copy of this writ,
with a notice endorsed thereon, requiring him, her, or them,
to be and appear before the said Justices, at the Court of
Common Pleas, to be holden at the
Monday next, as aforesaid, to show cause why the
said moneys, goods, chattels, debts and books of account,
lands, leasehold estates and chattels real, should not be ad-
judged to belong to the said C D, the absent debtor.
But, if no person is present at the time of your attaching
any of the things aforesaid, then and in such case, you are
commanded to affix up at the prison door, a true copy of
this writ, with an account of the things attached, and to
give notice thereof in the gazette : and in the case there be
no gazette, then you are required to publish the same at the
door of the house where the Courts of judicature are, or
shall be usually holden, for any person or persons, claiming
the same, to appear and show cause as aforesaid, pursuant to
the direction of the aforesaid Act of the General Assembly.
And, you are further required, to seize and take posses-
sion of all property of the absent debtor, which shall be
attached by service of this writ of foreign attachment, in
the hands, possession, custody, power or control of any
person or persons, who shall not, on oath, claim the same
as creditor in possession, or enter into bond, with good and
sufficient surety, to the said Sheriff, his successors in office,
or assigns, for the use of the plaintiff, not to waste or eloign
the said property so attached, and to render a schedule
thereof,' on oath, to the said Sheriff, and to make due return
to the said writ according to law, and to surrender the prop-
erty thus attached, when thereto required by law, or by any
order of Court made in pursuance of the attachment laws.
And further, to do in the premises what the said Justices,
at the said Court, shall then and there think lit to order;
and there bring then the said moneys, goods, chattels, debts
157
and books of account, and also an account of all such lands,
leasehold estates and chattels real.
And have you this writ before the Clerk of the said Court,
at fifteen days next before the sitting thereof.
Witness, Esquire, Clerk of the said Court, at
the day of in the year of our Lord, one
thousand eight hu /hired and , and in the year of the
Sovereignty and Independence of the United States of America.
Plaintiff's Attorney.
On the copy writ is endorsed a notice to the garnishee, as
follows :
To K L.
You are served with this writ, or process, to the intent
that you may personally be and appear before the Justices
of the Court of Common Pleas in at the return
thereof, being the day of next, in order to
show cause, if any you have, why the moneys, goods, chat-
tels, debts, books of account, lands, leasehold estates and
chattels real, now attached in your hands, should not be
judged to belong to the within named C D, pursuant to the
direction of the Act of the General Assembly of this State,
in that case made and provided.
Plaintiff's Attorney.
RETURN OF GARNISHEE TO WRIT OF ATTACHMENT.
State of South Carolina, 1 T ,, ^ -r,,
^ -p. ' > In the Common Pleas.
Charleston District. j
vs. V Foreign Attachment.
CD.)
K L, upon whom a writ of attachment in the above enti-
tled cause hath been served, being duly sworn, makes return
thereto, and says that he has not now, nor had he at the
time of the service of the said writ, nor has he at any time
since had in his hands, possession, custody, power or control
158
any moneys, goods, chattels, debts, books of account, land,
leasehold estates or chattels real of, or belonging to the said
C D,* except the Following.
[Here state the property, if any, of the absent debtor, which the
gamishet has.~\
That the said C D is indebted to this deponent in the
sain of dollars by his promissory note, dated the 1st day
of January, A. D. 1858, and payable ten days afterdate, and
now due and unpaid, (or state the indebtedness according to
the fen-Is,) and the deponent claims and holds the property
hereinabove enumerated as creditor in possession.
KL.
Sworn to In/are me
&c, &c, &c.
The return being filed, the following order should be
moved, two days' notice, being given to plaintiff or bis
attorney :
A in '
vs. > Foreign Attachment.
CD. J
K L, the garnishee in the above entitled cause, having
duly filed his return to the said writ on motion of
attorney of the said garnishee, it is ordered that the said K
L be discharged from further liability upon said attachment.
(Signed by the Judge.)
If garnishee fails to make return, then the following
order should be taken :
AB|
vs. > Foreign Attachment.
CD.j
K L, upon whom a writ of attachment in the above enti-
tled cause was duly served on the day of
A. D. having failed to make any return thereto, on
motion of , plaintiff's attorney, it is ordered that
the said A B have leave to enter up judgment against the
*If garnishee has no property of the absent debtor, the above form is followed to
*, then aci 1 : Wherefore the defendant prays to be discharged, and that his reason-
able costs; ad expenses in making this return be allowed him.
159
said K L, as defaulting garnishee for the debt and costs due
to him, the said A B, by the said C D.
The judgment is then entered up.
The State of South Carolina,
Charleston District.
Be it remembered, that heretofore, to wit, on the
day of in the year of our Lord A B sued
out of the Court of Common Pleas for the district afore-
said, a writ to attach the moneys, goods, chattels, debts and
books of account, land, leasehold estates and chattels real of
C D, who was absent from and without the limits of the said
State, so as to make him a party in the said Court to answer
to the said A B in a plea, &c., (following the writ,) which said
writ was on the day and year aforesaid, duly lodged in the
office of the Sheriff of Charleston district. And on the
day of in the year aforesaid, a copy thereof
was duly served upon K L, commanding him to show cause,
if any he had, why the moneys, goods, chattels, debts and
books of account, land, leasehold estates and chattels real,
then attached in his hands, should not be adjudged to
belong to the said C D, to which said writ of attachment
the said Iv L made no return. Whereupon it was ordered
by the Court of Common Pleas for the District aforesaid,
on the day of A. D. that the said
A B have leave to enter up judgment against the said K L
for his debt and costs due to him by the said CD; and
whereas the said A B hath by the judgment of the said
Court recovered against the said C D the sum of dollars,
as well for (the nonperformance of (tie promises, ,\v., or for
the debt according to the cause of actio)),) as for his costs and
charges by him in and about the said suit in that behalf
expended, whereof the said C D is convicted, as appears on
record. Therefore it is considered that the said A B do
recover against the said Iv L the said sum of dollars, so
recovered against the said C D as aforesaid, and also the
sum of dollars for his costs and charges by him expended
in and about prosecuting his suit in this behalf, and now by
160
the said Court to him with his assent, adjudged which said
damages, costs and charges amount in the whole to
dollars. And be the said K L in mercy, and so forth.
Plaintiff's Attorney.
petition for insolvent debtors act.
State of South Carolina, \
District. j
To the Honorable t/ie Judges of said State :
The petition of A B respectfully showeth unto }^our Hon-
ors, that he is in custody of the Sheriff of district,
at the suit of C D, (or if under ea. sa., state under an execu-
tion of capias ad satisfaciendum issuing out of the Court of
for the district of at the suit of C D,) that
he is willing and desirous to surrender all his estates and
effects, a full schedule whereof is hereto annexed, and that
he prays the benefit of the Act of the Legislature for the
relief of insolvent debtors, and that the usual orders in the
premises may be made, and your petitioner, as in duty
bound, will ever pray, &c.
FORMS m UNITED STATES COURT.
Sixth Circuit of the United States of America,
South Carolina District.
The President of the United States of America:
To the Marshals of the said District — Greeting :
You are hereby commanded, without delay, to attach
the body of A B, a citizen of the State of South Carolina
wheresoever he may be found within the aforesaid district,
so that you compel him to be and appear before the Clerk
of the Circuit Court of the United States of America, for
the aforesaid Circuit and District, at the rules, to be holden
at Charleston in the aforesaid district, on the first Monday
in December a next, to answer to C D, a citizen of the State
a The rule day, next after the issuing of the writ.
161
of Virginia, in a plea of trespass, on the case, &c, as also
for certain promises and assumptions by the said A B to
the said C I), made and not performed, to the damage of
the said A B, five thousand dollars.
And have you then and there this writ.
Witness the Honorable Roger B. Taney, Chief Justice of the
United States of America, at Greenville," in Soar/, Carolina,
district aforesaid, the tenth day of August* in the near of our
Lord one thousand eight hundredand sixty, and in the eighty-fifth
year of the Sovereignty and Independence of the Undid States of
America.
Plaintiff's Attorney.
If plaintiff or defendant are aliens, state the fact thus:
uTo attach the body of," or kkto answer to " CD, an cdien
and subject of the Queen of Great Britain and Ireland.
[f plaintiff or defendant is a corporation "to summon,"
or "to answer to" The South Carolina Railroad Company, a
body corporate by Act of the General Assembly of the State of
South Carolina.
THE DECLARATION.
The United States of America, 1 T ,-, «. ., „
-p. « .,, ' V ±11 the Circuit Court.
District of bourn Carolina. j
A B, a citizen of the State of South Carolina, was attached
to answer to C D, a citizen of the State of Virginia, (or an
alien, or a corporation as the ease may be, strictly following
the language of the writ,) in a plea, &c, (then continue as in
the State Court, bearing in mind, however, that if the action
is on a promissory note or chose in action, in favor of an
assignee, the declaration must aver the citizenship of the
assignor, so as to show that he had the right to sue in the
United States Court.")
The plea and all subsequent pleadings are in form the
same as in the State Court.
a The place whore the Circuit Court last held its session.
'• Some day in the preceding term of the Circuit Court.
c See ante page 'J'.
11
162
If there is default, and interlocutory judgment is entered,
damages are assessed by reference to Clerk, or by writ of
inquiry, executed in like maimer as in State Courts, and
substantially the same form used in entering final judgment
as in the State Courts, the variations being only sufficient to
adapt it to the United States Court. The following Postea
will show the variations needed.
POSTEA AND JUDGMENT ON ISSUE TRIED, AND VERDICT FOR
PLAINTIFF.
Therefore, it is commanded, that the United States Mar-
shal, in and for the district of South Carolina, do summon
forty-eight good and lawful men, to he drawn by ballot,
according to law, to he and appear before the Justices of
the said Court, to be holden at on the day
of next, by whom, and so forth ; and who neither,
and so forth ; to recognize, and so forth ; because as well,
and so forth ; and the same day given to the parties afore-
said, at the place aforesaid. And afterwards that is to say,
on the day, and at the place aforesaid, before the Justices
aforesaid, come as well the said [Plaintiff) by his attorney
aforesaid, as the said [Defendant) by his attorney aforesaid,
and the jurors aforesaid, being demanded, some of them, to
wit :
come, and being drawn by ballot, according to law, and
sworn of the jury aforesaid, to say the truth of the within
contained, do, on their oath, say, that the said defendant did
promise and assume in manner and farm as the said [Plaintiff)
above in his declaration has alleged against him, ami they
assess the damages of the said [Plaintiff) by reason of the
non-performance of the said jjromises over and above his costs
and charges by him about his suit in this behalf expended,
to
Therefore, it is considered that the said (Plain/iff) do
recover against the said [Defendant) the damages so found
by the jurors aforesaid : and also for his costs and
163
charges aforesaid, to the said {Plaintiff) by the said Court,
now herewith his assent adjudged; which said damages,
costs and charges, amount in the whole to
and be the said
(Defendant) in mercy, and so forth.
Plaintiff's Attorney.
Judgment signed and entered, this day of A. D. 18
united states court— fi. fa. in case.
The United States of America,
South Carolina District.
To , United States Marshal,
or any of his lawful Deputies — Greeting:
You, and each of you, are hereby commanded
without delay, that of the goods, chattels, houses and lands
and other hereditaments, and real estates, of
you cause to be levied the sum of
which
in the Circuit Court of the United States, for the said
district, lately recovered against the said
for damages which sustained, as well by reason
of certain promises and assumptions, by the said
to the said
made and not performed,
as also the sum of for his costs and charges,
expended in and about prosecuting suit in that behalf,
whereof the said
convicted as appears on record.
And also, that you cause to be levied the interest upon
the principal of said debt, from the day of
in the year of our Lord one thousand eight hundred and
(the day on which judgment is entered in this case)
up to the day on which levy shall be made, and satisfaction
entered on this execution :
164
And that you have the money before the Justices of the
said Court, to be holden ata on theb
next, to render to the said
for damages, costs and charges aforesaid.
And you have this writ before the Clerk of the said Court,
ata according to law.
Witness, the Honorable Roger B. Taney, Chief Justice of the
United States, atc the6
in the year of our Lord one thousand eight hundred and
and in the year of the Sovereignty and
Independence of the United States of America.
Plaintiff's Attorney.
federal court— ca. sa. in case.
The United States of America, ~|
District of South Carolina, j
To , United States Marshal,
or any of his lawful Deputies:
You, and each of you, arc hereby commanded without
delay, to take the bod of
wheresoever may be found, within your and each of your
respective districts, and safely keep, so that you have
bod before the Justices of the Circuit Court of the United
States, for the district of South Carolina, at a Court to be
holden ata on the1' day of next, to
satisfy to the sum of
which
before the Justices of the said Court at lately recov-
ered against the said for damages which
sustained, as well by reason of the non-performance of
certain promises and assumptions by the said
to the said lately made, as for
a The place where next session of Circuit Court is to be held.
'' The first day of the next ensuing term of the Circuit Court.
c The place where the last session of the Circuit Court was held.
d Seme day in the preceding term of the Circuit Court.
165
costs and charges, by expended, in and about
prosecuting suit in that behalf, whereof the said
convicted, as appears on record.
And also, for interest upon
being the principal of the said debt, from the day
of in the year of our Lord one thousand eight hun-
dred and (the day on which judgment is entered in
this case,) up to the day on which satisfaction shall be
entered on this execution.
And have you this writ before the Clerk of the said Court,
ata according to law.
Witness, the Honorable , Chief Justice of the
United States, at* the0 day of in the
year of our Lord one thousand eight hundred and
and in the yt ar of the Sovereignty and Independence
of the United States of America.
Plaintiff's Attorney.
writ of error.
The United States of America.
Th President of the United States to the Judges of the Circuit
Court of the United States, for the Sixth Circuit, in and for the
District of South Carolina.
Because, in the record and proceedings, as also in the ren-
dition of the judgment of a plea which is in the said Court
before you, or some of you, between A B, plaintiff, and C
D, defendant, a manifest error hath happened, to the great
damage of the said C D, as by his complaint appears. We
being willing that error, if any hath been, should be duly
corrected, and full and speedy justice done to the parties
aforesaid, in this behalf do command you, if judgment be
therein given, that then under your seal, distinctly and
a The place where next session of Circuit Court is to be held.
b The place where last session was held.
e Some day in preceding term.
166
openly you send the record and proceedings aforesaid, with
all things concerning the same, to the Supreme Court of the
United States, together with the writ, so that you have the
same at Washington on the first Monday of December next,
in the said Supreme Court, to he then and there held, that
the record and proceedings aforesaid heing inspected, the
said Supreme Court may cause further to he done therein to
correct that error, what of right and according to the laws
and customs of the United States should he done.
Witness the Honorable R. B. Taney, Chief Justice of the said
Supreme Court, the first* Monday in Decemhr^ in the year of our
Lord one thousand eight hundred and
H. Y. GRAY, Clerk Circuit Court,"
citation.
The United States of America.
To A B— Greeting :
You are hereby cited and admonished to be and appear at
a Supreme Court of the United States, to be holden at Wash-
ington on the first Monday in December next, pursuant to
a writ of error filed in the Clerk's office of the Circuit
Court of the United States for the district of South Caro-
lina, wherein C D is a plaintiff, and you are defendant in
error, to show cause, if any there be, why the judgment in
the said writ of error mentioned, should not be corrected,
and speedy justice should not be done to the parties in that
behalf.
Witness my hand and sea/ at the city of in the
district aforesaid, this day of A. D. 186 c
* The writ of error is tested of the first day of the preceding term of the Supreme.
Court, and returnable to the first day of the ensuing term.
b If the writ of error is intended to operate as a supersedeas, a copy thereof must
be lodged in the Clerk's office within ten days, (see ante page 13.3,) and bond given
and; approved by the Judge, who thereupon signs the following order endorsed on the
writ :
The (plaintiff or defendant) named in the within writ, having given bond and
security as required by law, which is approved, this writ is allowed to operate as a
supersedeas to the judgment therein mentioned. Witness my hand this day of
A. D.
c The citation is signed by the Judge, and dated of the day of signature.
167
WRIT OF ERROR BOND.
Know all men by these presents, that we, C D, K L and
G M, are held arid firmly hound unto A B, in the full and
just sum of dollars, to he paid to the said A B, his
certain attorneys, executors, administrators or assigns, to
which payment, well and truly to he made, we bind our-
selves, our heirs, executors ami administrators, jointly and
severally, by these presents.
Sidled with our seals, and dated this day of
in the year of our Lord one thousand eight hundred and
Whereas, lately at a Circuit Court of the United States
for the ifcytl* Circuit in and for the district of South Caro-
lina, in a suit pending in said Court between A B, plaintiff,
and C D, defendant, judgment was*reiidererT against the said
C D, and the said C D hath sued out a writ of error to the
Supreme Court of the United States, and to reverse the
judgment in the aforesaid suit, and hath hied a copy of said
writ in the office of the Clerk of the said Circuit Court, and
a citation directed to the said A B, citing and admonishing
him to be and appear at a Supreme Court of the United
States, to be held at the city of Washington on the first
Monday in December next. Now the condition of the
above obligation is such, that if the said C D shall prosecute
his said writ of error to effect and answer all damages'" and
costs; if he shall fail to make his plea good, then the above
obligation to be void, or else to remain in full force and
virtue.
Sealed and delivered in the presence of
Approved byb
When it is intended to carry the case to the Supreme
Court for decision, it is necessary to make up what is tech-
nically called the paper book, which contains a transcript of
the record, the assignment of error, (either by bill of ex-
ceptions or such other form as may be proper under the
circumstances,) the writ of error, the citation, the bond to
:l If writ of error is not to operate as a supersedeas, the bond and security need
only be for the costs, and the word "damages" is omitted.
b The approval of the bond is by the Judge, who allows the writ of error.
168
appellee, and finally, the Clerk's certificate that the tran-
script is a true copy from the record of the proceedings.
There is no prescribed form for the paper book, but it
must contain a transcript of the record, and all papers,
exhibits, depositions and other proceedings necessary to the
hearing in the Supreme Court. The following form of a
paper book, will serve as a precedent, to be varied of course
according to the exigency of each case.
The United States of America,) m • ,
District of South Carolina, j ow1.
At a Circuit Court of the United States for the sixth Cir-
cuit in and for the district of South Carolina, begun and
holden at Columbia in the district aforesaid, on the fourth
Monday in November, 1856, before the Honorable A. G.
Magrath, Judge of the said United States, for the district of
South Carolina, holding said Circuit Court according to the
form of the Act of Congress, in such case made and pro-
vided, the following proceedings were had:
A B
Be it remembered, that heretofore, to wit: the twenty-
first day of October, in the year of our Lord one thousand
eight hundred and fifty-seven, the said A B, impleaded the
said C D in an action on promises, as follows :
[Here set out the writ']
and D. II. Hamilton, Marshal of the said United States, for
the district aforesaid, returned said writ, endorsed as
follows :
[Set out Marshal's return, endorsed on writ.']
and upon the sixth day of November, in the year of our
Lord one thousand eight hundred and fifty-seven, the said
A B by GT W, his attorney, declared in the Circuit Court
here against the said C D, in words and of the tenor fol-
lowing :
[Set out declaration.]
And on the first day of December, in the year of our
169
Lord one thousand eight hundred and fifty-seven, comes
into Court the said C D by L M, his attorney, and to the
declaration of the said A B, files his plea in words and of
the tenor as follows :
[Set out plea ami issm .]
And on the first Monday in April, in the year of our Lord
one thousand eight hundred and fifty-eight, comes again
into Court the parties aforesaid, by their attorneys aforesaid,
and upon motion of the said A B, by his attorney, and by
and with the consent of the said C D, by his attorney,
further process of and upon the premises aforesaid, is by
order of the Court continued until the fourth Monday in
November next. At which said Monday in Xovember, in
the year of our Lord one thousand eight hundred and fifty-
eight, comes into Court the parties aforesaid, by their attor-
neys aforesaid.
[Here set oat Postea.~]
MEMORANDUM.
Before the jurors withdrew from the bar of the Court
here, the said C D, by his attorneys aforesaid, tendered to
the Court here the following bill of exceptions, which was
by the Court here signed and sealed, and which is in form
following, to wit:
defendant's bill of exceptions.
In the Circuit Court of the United States,
for the District of South Carolina.
A in
vs. Xovember Term.
CD. J
At the trial of the cause the plaintiff to maintain and prove
the issue on his part, gave in evidence, [here insert such parts
of plaintiff's evidence as are proper to be inserted; see ante pagt
133,] and the defendant to maintain and prove the issue on
his part, gave in evidence, [set out defendant's evidence,'] and
the plaintiff in reply to the evidence of the said defendant
170
and to rebut the same, gave in evidence, [set out rebutting
testimony,] and the testimony on both sides being closed, the
defendant prayed the Court to instruct the jury in the fol-
lowing particulars, [set out the instructions prayed for.~\ But
the Court rejected each and every of the instructions pra}'ed
for by the defendant, [state this according to the fact,] and in
lieu thereof instructed the jury, [set out instructions give}} by the
Court; sec ante page 131.] To the granting of which said
instructions and to the refusal of those prayed for by the
defendant, the defendants then and there and before the
jury had withdrawn from the bar, did except, and inas-
much as the matters aforesaid do not appear by the verdict
of the jury, prayed the Court here to sign and seal this his
bill of exceptions, which is accordingly done, this day
of A. D.
A. G. MAGRATH, Judge.
And now here, at this day, to wit: the day of
A. I). the said C D produced here to the said Court, the
writ of the said United States of America for the correcting
of errors of and upon the promises commanding the record
and proceedings aforesaid, of the judgment aforesaid, so
rendered as aforesaid, with all things concerning the same,
to be transmitted to the Supreme Court of the United States,
to be held at the city of Washington, on the first Monday in
December next, which said writ of error is in the words and
of the tenor following :
[Set out writ of error.]
In pursuance whereof and according to the form and
effect of the Act of Congress, in such case made and pro-
vided, a transcript of the record and proceedings of the
judgment aforesaid, so as aforesaid rendered with all things
relating to the same, together with the said writ of error are
hereby transmitted to the said Supreme Court accordingly.
[Then set out citation and bond, and Clerk's certificate that the
transcript is a correct copy of the record.]
RULES
OF THE
SUPREME COURT OF THE UNITED STATES,
Revised and Corrected at December Term, 1858.
No. 1.
CLERK.
The Clerk of this Court shall reside and keep the office at
the seat of the National Government, and he shall not prac-
tice either as an attorney or counsellor in this Court or any
other Court, while he shall continue to he Clerk of this
Court.
The Clerk shall not permit any original record or paper
to he taken from the Supreme Court room, or from the
office, without an order from the Court.
No. 2.
ATTORNEYS, ETC.
It shall he requisite to the admission of attorneys and
counsellors to practice in this Court, that they shall have
heen such for three years past in the Supreme Courts of the
States to which they respectively belong, and that their pri-
vate and professional eharacter shall appear to he fair.
They shall respectively take the following oath or affirma-
tion, viz: "I do solemnly swear (or affirm, as the case may
be,) that I will demean myself, as an attorney and counsel-
lor of this Court, uprightly, and according to law, and that
I will support the Constitution of the United States."
172
No. 3.
PRACTICE.
This Court consider the practice of the Courts of King's
Bench and of Chancery, in England, as affording outlines
tor the practice of this Court; and they will, from time to
time, make such alterations therein as circumstances niav
render necessary.
No. 4.
B I L L OF EXCEPTIONS.
Hereafter, the Judges of the Circuit and District Courts
shall not allow any bill of exceptions, which shall contain
the charge of the Court at large to the jury in trials at
common law, upon any general exception to the whole of
such charge. But the party excepting shall he required to
state distinctly the several matters of law in such charge to
which he excepted; and that such matters of law, and those
only, shall be inserted in the bill of exceptions, and allowed
by the Court.
No. 5.
PROCESS.
All process of this Court shall be in the name of the
President of the United States.
When process at common law, or in equity, shall issue
against a State, the same shall be served on the Governor,
or Chief Executive Magistrate, and Attorney General, of
such State.
Process of subpoena, issuing out of this Court, in any suit
in equity, shall be served on the defendant sixty days before
the return day of the said process ; and if the defendant, on
such service of the subpoena, shall not appear at the return
day contained therein, the complainant shall be at liberty to
proceed ex parte.
A»»<>5"12oICJ2< ****' e*3Svd 9ta.*GuL-&jb»^uj3 a]?- <*~ te^Wc c«-(«-»-i*_ v€^-»_<a
/GT motions hereafter made to the Court shall be reduced
to writing, and shall contain a brief statement of the facts
and objects of the motion. Cl***-**** ed-ti^ &iul~ &-Jrtrv-*- ^^*^anp^\
^zc
No. 7.
«■
\
LAW LIBRAR Y C ONFERENCE ROOM,
1. During the session of the Court, any gentleman of the f\ >> L,j jiSj
bar having a cause on the docket, and wishing to use any
book or books in the law library, shall be at liberty, upon
application to the Clerk of the Court, to receive an order to
take the same, (not exceeding at any one time three,) from the ^
library, he being thereby responsible for the due return of
the same within a reasonable time, or when required by the
Clerk. And it shall be the duty of the Clerk to keep, in a
book for that purpose, a record of all books so delivered,
which are to be charged against the party receiving the
same. And in case the same shall not be so returned, the
party receiving the same shall be responsible for, and forfeit
and pay twice the value thereof; as also one dollar per day
for each day's detention beyond the limited time.
2. The Clerk shall take charge of the books of the Court,
together with such of the duplicate law books as Congress
may direct to be transferred to the Court, and arrange them
in the conference room, which he shall have fitted up in a
proper manner; and he shall not permit such books to be
taken therefrom by any one, except the Judges of the
Court,
No. 8.
RETURN TO WRIT OF ERROR, ETC.
1. The Clerk of the Court to which any writ of error
shall be directed, may make return of the same, by trans-
mitting a true cop}^ of the record, and of all proceedings in
the cause, under his hand and the seal of the Court.
s*
y
e**e^
Aw#-*i-€-e-
-174 ^
2. No cause will hereafter be heard until a complete
record, containing in itself, without references aliunde, all * +Jft
the papers, exhibits, depositions, and other proceedings
which are necessary to the hearing in this Court, shall be
filed.
3. Whenever it shall be necessary or proper, in the opin-
ion of the presiding Judge in any Circuit Court, or District
Court exercising Circuit Court jurisdiction, that original
papers of any kind should be inspected in the Supreme
Court, upon appeal, such presiding Judge may make such
rule or order for the safe keeping, transporting, and return
of such original papers, as to him may seem proper ; and
this Court will receive and consider such original papers in
connection with the transcript of the proceedings.
DOCKETING CASES.
1. In all cases where a writ of error or an appeal shall be
brought to this Court from any judgment or decree ren-
dered thirty days before the commencement of the term, it
shall be the duty of the plaintiff in error or appellant, as
the case may be, to docket the cause, and file the record
thereof with the Clerk of this Court within the first six
days of the term ; and if the writ of error or appeal shall
be brought from a judgment or decree rendered less than
thirty clays before the commencement of the term, it shall
be the duty of the plaintiff in error or appellant to docket
the cause, and file the record thereof with the Clerk of this
Court within the first thirty days of the term ; and if the
plaintiff in error or appellant shall fail to comply with this
rule, the defendant in error or appellee may have the case
docketed and dismissed, upon producing a certificate from
the Clerk of the Court wherein the judgment or decree was
rendered, stating the cause, and certifying that such writ of
error or appeal has been duly sued out and allowed.
And in no case shall the plaintiff in error or appellant be
entitled to docket the cause and file the record after the
%
175.
same shall have been docketed and dismissed under this
rule, unless by order of the Court.
2. But the defendant in error or appellee may at his
option docket the cause, and file a copy of the record with
the Clerk of the Court ; and if the case is docketed, and a
copy of the record filed with the Clerk of this Court, by
the plaintiff in error or appellant, within the periods of
time above limited and prescribed by this rule, or by the
defendant in error or appellee, at any time thereafter during
the term, the case shall stand for argument at the term.
3. In all cases where the period of thirty days is men-
tioned in this rule, it shall be extended to sixty days in writs
of error and appeals from California, Oregon, Washington,
New Mexico *w*4- I Ttah,/VZ*-<»-/5^*_ ^^r^tr--<-»^-/ ^^r*^^,
No. 10.
SECURITY FOR COSTS PRINTING RECORDS ATTACH-
MENT FOR COSTS.
1. In all cases, the Clerk shall take of the party a bond,
with competent surety, to secure his fees, in the penalty of
two hundred dollars, or a deposit of that amount, to be
placed in bank, subject to his draft.
2. In all cases, the Clerk shall have fifteen copies of the
records printed for the Court ; and the cost of printing
shall be charged to the government in the expenses of the
Court.
3. The Clerk shall furnish copies for the printer, shall
supervise the printing, and shall take care of and distribute
the printed copies to the Judges, the reporter, and the
parties, from time to time, as required.
4. In each case, the Clerk shall charge the parties the
legal fees for but the one manuscript copy in that case.
5. In all cases, the Clerk shall deliver a copy of the
printed record to each party. And in cases of dismission,
reversal, or affirmance with costs, the fees for the said man-
uscript copy of the record shall be taxed against the party
176
against whom costs are given, and which charge includes
the charge for the copy furnished him.
6. In cases of dismission for want of jurisdiction, each
[tarty shall be charged with one-half the legal fees for a
copy.
7. Upon the Clerk of this Court producing satisfactory
evidence, by affidavit or the acknowledgment of the parties
or their sureties, of having served a copy of the bill of fees
due by them respectively in this Court, on such parties or
their sureties, an attachment shall issue against such parties
or sureties respectively, to compel payment of the said fees.
No. 11.
TRANSLATIONS.
Whenever any record, transmitted to this Court upon a
writ of error or appeal, shall contain any document, paper,
testimony, or other proceeding, in a foreign language, and
the record does not also contain a translation of such docu-
ment, paper, testimony or other proceeding, made under the
authority of the inferior Court, or admitted to be correct,
the record shall not be printed, but the case shall be reported
to this Court by the Clerk, and the Court will thereupon
remand it to the inferior Court, in order that a translation
may be there supplied and inserted in the record.
No. 12.
EVIDENCE.
1. In all cases where further proof is ordered by the
Court, the depositions which shall be taken shall be by a
commission to be issued from this Court, or from any Cir-
cuit Court of the United States.
2. In all cases of admiralty and maritime jurisdiction,
where new evidence shall be admissible in this Court, the
evidence by testimony of witnesses shall be taken under a
commission to be issued from this Court, or from any Cir-
cuit Court of the United States, under the direction of any
177
Judge thereof; and no such commission shall issue but
upon interrogatories to be filed by the party applying for
the commission, and notice to the opposite party, or his
agent or attorney, accompanied with a copy of the interro-
gatories so filed, to file cross-interrogatories within twenty
days from the service of such notice: Provided, however, that
nothing in this rule shall prevent any party from giving
oral testimony in open Court in cases where by law it is
admissible.
No. 13.
DEEDS, ETC., NOT OBJECTED TO, ETC., ADMITTED, ETC.
In all cases of equity and admiralty jurisdiction heard in
this Court, no objection shall hereafter be allowed to be
taken to the admissibility of any deposition, deed, grant or
other exhibit found in the record, as evidence, unless objec-
tion was taken thereto in the Court below, and entered of
record ; but the same shall otherwise be deemed to have
been admitted by consent.
No. 14.
CERTIORARI.
No certiorari for diminution of the record shall be here-
after awarded in any cause, unless a motion therefor shall be
made in writing ; and the facts on which the same is
founded shall, if not admitted by the other party, be veri-
fied by affidavit. And all motions for such certiorari shall
be made at the first term of the entry of the cause ; other-
wise, the same shall not be granted, unless upon special
cause shown to the Court, accounting satisfactorily for the
delay.
No. 15.
DEATH OF A PARTY.
1. Whenever, pending a writ of error or appeal in this
Court, either party shall die, the proper representatives in
12
178
the personalty or realty of the deceased party, according to
the nature of the case, may voluntarily come in and he
admitted parties to the suit; and thereupon the cause shall
he heard and determined, as in other eases ; and if such rep-
resentatives shall not voluntarily become parties, then the
other party may suggest the death on the record, and there-
upon, on motion, obtain an order, that unless such represen-
tatives shall become parties within the first ten days of the
ensuing term, the party moving for such order, if defendant
in error, shall he entitled to have the writ of error or appeal
dismissed; and if the party so moving shall he plaintiff in
error, he shall be entitled to open the record, and, on hear-
ing, have the same reversed, if it be erroneous; Provided,
hoiverer, that a copy of every sneh order shall he printed in
some newspaper at the seat of government, in which the
laws of the United States shall he printed by authority, for
three successive weeks, at least sixty days before the begin-
ning of the term of the Supreme Court then next ensuing.
2. When the death of a party is suggested, and the repre-
sentatives of the deceased do not appear by the tenth day of
the second term next succeeding the suggestion, and no
measures are taken by the opposite party within that time
to compel their appearance, the case shall abate.
No. IB.
NO APPEARANCE OF PLAINTIFF IN ERROR. , >a
Where there is no appearance for the plaintiff in error
when the case is called for trial, the defendant may have the
plaintiff called, and dismiss the writ of error, or may open
the record, and pray for an affirmance.
No. 17.
NO APPEARANCE OF DEFENDANT IN ERROR.
Where the defendant in error fails to appear when the
cause shall be called for trial, the Court may proceed to
179
hear an argument on the part of the plaintiff, and to give
judgment according to the right of the cause.
No. 18.
NO APPEARANCE OF EITHER PARTY.
When a case is readied in the regular call of the docket,
and no appearance is entered for either part}', the case shall
be dismissed, at the costs of the plaintiff.
No. 19.
NEITHER PARTY READY AT SECOND TERM.
When a ease is called for argument at two successive
terms, and upon the call at the second term neither party is
prepared to argue it, it shall be dismissed at the costs of
the plaintiff, unless sufficient cause is shown for further
postponement.
No. 20.
PRINTED ARGUMENTS.
1. In all cases brought here on appeal, writ of error, or
otherwise, the Court will receive printed arguments, with-
out regard to the number of the case on the docket, if the
(..counsel on both sides shall choose so to submit the sanies
jQQ^f&Isu^ O^6o'^r> ^tL*_C^-^<^t"/ '/uni
2. When a case is readied in the regular call of the
docket, and a printed argument shall be filed for one or both
pai'ties, the case shall stand on the same footing as if there
were an appearance by counsel.
3. When a case is taken up for trial upon the regular call
of the docket, and argued orally in behalf of only one of
the parties, no printed argument will he received unless it is
filed before the oral argument begins, and the Court will
proceed to consider and decide the case upon the ex parte
argument.
/
180
No. 21.
TWO COUNSE L — T W 0 H 0 U R S — B RIEFS.
1. Only two counsel shall be permitted to argue for each
party, plaintiff and defendant, in a cause.
#**&-u>* 6-ujiy / 2. No counsel will be permitted to speak in the argument
T \^^7 1 °^ any case more than two hours, without the special leave
£L . c ]Jt f f.lt. W>f the Court, granted before the argument begins.
<^~ djm-*L~*— ' 3. Counsel will not be heard, unless a printed brief or
abstract of the case be first filed, together with the points
intended to be made, and the authorities intended to be
cited in support of them arranged under the respective
points ; ftwcHno other -buuk ui-umij In. roforrocl to -in the
■argument. jV few'-jet^r^ ^^^y^/t^^ZTt*
The same shall be signed by an attorney or counsellor
of this Court.
/G -%-. If one of the parties omits to file such a statement, he
cannot be heard, and the case will be heard ex parte upon the
argument of the party by whom the statement is filed.
// -it. Fiftdenprintecl copies of the abstract, points, and
authorities, required by this rule, shall be filed with the
^erl^irree^ta^noe^re Toecase is caTTecPrni' argument;
/Ji -¥r When no counsel appears for one of the parties, and
no printed brief or argument is filed, only one counsel will
be heard for the adverse party. But if a printed brief or
argument is filed, the adverse party will be" entitled to be
heard by two counsel.
No. 22.
ORDER OF ARGUMENT.
The plaintiff or appellant in this Court shall be entitled to
open and conclude the case. But, when there are cross-
appeals, the}- shall be argued together as one case, and the
plaintiff in the Court below shall be entitled to open and
conclude the argument.
181
No. 23.
INTEREST, ETC.
1. Iii cases where a writ of error is prosecuted to the
Supreme Court, and the judgment of the inferior Court is
affirmed, the interest shall be calculated and levied from the
date of the judgment below until the same is paid, at the
same rate that similar judgments bear interest in the Courts
of the State where such judgment is rendered.
2. The same rule shall be applied to decrees for the pay-
ment of money in cases in chancery, unless otherwise
ordered by this Court.
3. In all cases where a writ of error shall delay the pro-
ceedings on "the judgment of the CircunV Court, and shall
appear to have been sued out merely for delay, damages
shall be awarded, at the rate of ten per centum per annum on
the amount of the judgment ; and the said damages shall be
calculated from the date of the judgment in the Court below
until the money is paid.
No. 24.
COSTS.
1. In all cases where any suit shall be dismissed in this
Court, except where the dismissal shall be for want of juris-
diction, costs shall be allowed for the defendant in error, or
appellee, as the case may be, unless otherwise agreed by the
parties.
2. In all cases of affirmance of any judgment or decree in
this Court, costs shall be allowed to the defendant in error,
or appellee, as the case may be, unless otherwise ordered by
the Court.
3. In all cases of reversals of any judgment or decree in
this Court, costs shall be allowed in this Court for the
plaintiff in error or appellant, as the case may be, unless
otherwise ordered by the Court.
4. Neither of the foregoing rules shall apply to cases
182
where the United States are a party; but in such cases no
costs shall be allowed in this Court for or against the United
States.
5. In all eases of the dismissal of any suit in this Court,
it shall be the duty of the Clerk to issue a mandate, or other
proper process, in the nature of & procedendo, to the Court
below, for the purpose of informing such Court of the pro-
ceedings in this Court, so that farther proceedings may be
had in such Court as to law and justice may appertain.
(3. When costs are allowed in this Court, it shall be the
duty of the Clerk to insert the amount thereof in the body
of the mandate, or other proper process, sent to the Court
below, and annex to the same the bill of items taxed in
detail.
Xo. 25.
OPINIONS OF THE COURT.
1. All opinions delivered by the Court shall immediately,
upon the delivery thereof, be delivered over to the Clerk to
be recorded. And it shall be the duty of the Clerk to cause
the same to be forthwith recorded, and to deliver the origi-
nals, with a transcript of the judgment or decree of the
Court thereon, to the reporter, as soon as the same shall be
recorded.
2. And all the opinions of the Court, as far as practica-
ble, shall be recorded during the term, so that the publica-
tion of the reports may not be delayed thereby.
3. The -grkjinftl opinions ,ofthe Court, 4e-liveied IT» Llw
i-opMv|tM- shall be tiled i i l-Itno^tfi o a- of the Clerk of th<^4
Court, for preservation, at;; coon a.* the volume of reports-fen "
thu-Uim, at which Hiu ait dilhued, shall ul publijhud.
Xo. 26.
CALL OF THE DOCKET.
The Court, on the second day in each term, will com-
mence calling the cases for argument in the order in which
183
they stand on the docket, and proceed from day to day
during the term, in the same order; and if the parties, or
either of them, shall be ready when the ease is called, the
same will be heard ; and if neither party shall be ready to
proceed in the argument, the cause shall go down to the foot
of the docket, unless some good and satisfactory reason to
the contrary shall be shown to the Court, That ten causes
only shall be considered as liable to be called on each day
during the term, including the one under argument, if the
same shall not be concluded on the preceding day. No
cause shall be taken up out of the order on the docket, or
be set down for any particular day, except under special and
peculiar circumstances, to be shown to the Court, Every
cause which shall have been called in its order, and passed,
and put at the foot of the docket, shall, if not again reached
during the term it was called, be continued to the next term
of the Court.
No. 27.
• • * MOTION DAY.
The Court will not hear arguments on Saturday, "(unless
foji special caCrse^it shall order to the cpn1rarv.,») but will
devote that day to me-other business ofthe Court ; and on'
Friday in each week, dirrmgthe sitting of the Court,
motions in cases not requirj&doy ike rules of the Court to
be put on the docket shaff be entitled to^preference, if such
motions shall be mtuM before the Court shalTrMiye entered
on the hearing of/a cause upon tl5e docket.
No. -&8r- ^/
C ADJOURNMENT.
The Court will, at every session, announce on what day it
will adjourn at least ten days before the time which shall be
fixed upon ; and the Court will take up no ease for argu-
ment, nor receive any case upon printed briefs, within three
days next before the day fixed upon for adjournment.
184
DISMISSING} CASES IN VACATION.
Whenever the plaintiff and defendant in a writ of error
pending in this Court, or the appellant and appellee in any
appeal, shall at anytime hereafter, in vacation and out of
term time, by their respective attorneys, who are entered as
such on the record, sign and rile with the Clerk an agree-
ment in writing, directing the case to be dismissed, and
specifying the terms upon which it is to be dismissed as to
costs, and also paying to the Clerk any fees that may be due
to him, it shall be the duty of the Clerk to enter the case
dismissed, and to give to either party which may request it
a copy of the agreement filed ; but no mandate or other
process is to issue without an order by the Court.
S* .. -V" TTf <T- ^ -T -~% a^j>w^ OL^e-**'- m&mso^d ^#*2*
s
INDEX.
Administrators. (See Executors.)
Alien", — right to sue and be sued in U. S. Court,
Alienage, — how stated on the record,
Appeal, — how made,
in cases under Insolvent Debtors Act,
" " " Prison Bounds Act, .
" U. S. Court, ....
" " " security given on appeal,
" " " when docketed in Supreme Court
(See Writ of Error.)
Appearance, — when and how made, ....
to what Court must be made, ...
Assignee under Attachment Act, duties of,
" Insolvent Debtors Act, ....
of chose in action — right to sue in U. S. Court,
Attachment Foreign, —
when it may issue, .....
form of writ. (See Appendix.)
how served, ......
what may be attached, ....
bond in,
motion to set aside writ, when and by whom made,
lien of, ..... .
declaration in, .
plea to, when filed, ....
process of, does not exist in U. S. Court.
(See Garnishee.)
89
99
30
73
81
121
125
134
12
7
60
76
97
46
49
49
48
50
50
51
60
60
96
Bail,-
order for, how obtained,
to what errors may bail except,
liability of, ...
how and when fixed,
13
37
40
42
42
43
186
INDEX.
Bail. — when may they surrender their principal,
in attachment, when entered and effect of,
U. S. Courts, ......
" " fixed by return of nulla bona to ,fi-,fo.
Bankrupt Law, — power of State to enact.
Bill of Exceptions, — in IT. S. Court, .
to the admission of evidence,
instructions of the Judge, .
when exceptions should be tendered,
when signed, ....
what it should contain, .
form of. (See Appendix.)
Bill of Particulars
PAGE.
44
61
118
120
135
128
129
130
132
132
133
169
15
Circuit Court. (See United States.)
Citation, — when issued and by whom,
service of, . .....
form of. (See Appendix.) .
Citizen. (See Jurisdiction.)
Clerk, — reference to, ......
Commission to take testimony, ....
" " in TT. S. Court,
Continuance, — when granted, ....
CORPORATION, — right to sue and be sued in U. S. Court,
133
134
166
17
23
111
20
91
Declaration, — when and where filed.
in attachment, ....
when filed in Som.. Pro. jurisdiction,
in U. S. Court, ....
Deposition <le bene esse in U. S. Court. .
Discount, — how set up,
Discontinuance,
13
60
34
109
110
19
21
Endorsee, — right to sue in U. S. Court, .
Error. (See Writ of Error.)
assignment of, on appeal in U. S. Court,
Evidence, — how produced, ....
by commission. (See Commission.)
in U. S. Court how produced,
law governing production of,
judgment for non-production of written.
Execution, — how issued and renewed,
ill bonis propriis against executor. (See Appendix.)
97
123
126
21
23
109
102
114
31
153
INDEX.
1ST
Exceptions, — in U. S. C. Court, laws regulating form of and pro-
ceedings on, . . . . . . . .104
how issued and returned, . . . . . .117
Executors and Administrators,— #ci. Fa. against, to assess dam-
ages after death of princi-
pal, ....
when competent to sue and
be sued in U. S. Court,
Fraudulent Preference. (See Insolvent Debtors Act.) .
Garnishee, — how served. .....
when may claim as creditor in possession,
return to writ must always be made, .
" " must be under oath,
when return must be filed, .
liability of, for failure to return, .
return of, how contested,
judgment against, how obtained,
(See Forms in Appendix.)
Imparlance, — not allowed in U. S. Coui-t,
Inquiry, — writ of, how executed, ....
Insolvent Debtors Act, —
who entitled to,
petition for, when tiled,
form of petition. (See Appendix.)
notice of petition, how given, .
schedule, when to be filed,
what it should contain,
amendment of schedule, .
suggestions contesting schedule,
trial of suggestions, .
re-arrest of applicant after conviction of fraud
appeal, how taken, .
right of applicant pending appeal,
assignment of effects,
discharge and effect of,
discharge of in U. S. Court,
effect of discharge in U. S. Court,
Instructions, — when asked in U. S. Court,
Interest on Judgments in U. S. Courts,
Jail Bounds, — how obtained, ....
bond for, when given,
in U. S. Court, ....
90
67
51
56
55
53
56
5 7
57
17
157
109
17
66
69
160
6!)
70
70
71
73
73
74
7li
78
135
141
117
117
64
64
141
188
INDEX-
Judgment, — final: when and how entered,
" after death of party,
of not) pros., ....
by default, how entered and vacated,
of nonsuit, ....
final in U. S. Court, when and how entered,
by default in U. S. Court for non-production of testimony, 1 1 4
for default of appearance or plea in U. S. Court, how
entered and vacated,
lien of in U. S. Court,
Jurisdiction, — in Sum. Pro. (See Sum. Pro.)
of U. S. Courts generally,
" " Circuit Court,
amount necessary,
character of parties, aliens,
citizens,
corporations,
must be averred on the record,
how stated on record,
removal of parties pendente lite does not affect juris
diction, ....
objection to, how and when taken,
Mortgagees, — to prove claims under Insolvent Debtors Act,
New Trial. (See Appeal.)
in U. S. Court, ....
NONSUIT, — when and how obtained,
in invitum not allowed in U. S. Court,
Payment into Court, — how made,
Peeas, — when to be filed, .....
" " " in U. S. Court,
" " " in Foreign attachment,
Pleading Double .......
Prison Bounds Act, — who entitled to, .
schedule, when filed, .
proceedings on application for,
appeal under,
right of applicant pending appeal,
discharge under,
Prison Rules, — how obtained, ....
how far extend, ....
" " " in U. S. Court,
bond for,
INDEX.
189
Reference to Clerk,
Removal of Causes, — from State to U. S. Courts.
Reply, — in argument,
in evidence,
Rule to plead,— when posted,
Schedule.
Sci. Fa.,-
Set off.
Sheriff,
(See Insolvent Debtors Act.)
(See Prison Bounds Act.)
to assess damages after death of party,
(See form of Writ in Appendix.)
against Bail,
in U. S. Courts,
(See Discount.)
-mode of serving writ,
return to writ,
service of Attachment Writ,
State Laws, — their effect in U. S. Court as Rules of dec
Subpoena, — how issued,
duces tecum — how issued,
in U. S. Court, ....
Suggestions. (See Insolvent Debtor's Act.) .
(See Garnishee.)
Sum. Pro., — jurisdiction in, ...
pleadings in, ....
interrogatories in, ...
judgment in, ....
United States, — judicial power of,
" " how exercised,
Circuit Court, how composed,
" " jurisdiction of. (See Jurisdiction.)
•' " removal of cases to, from State Court,
" " modes of removal, ....
" " State Laws as rules of decision in,
" " process and practice in, .
Witnesses, — attendance of, how secured, .....
" " before Commissioners,
may be recalled after nonsuit argued,
in U. S. Court, how summoned, .
Writ, — how filled out,
description of parties in,
service of,
endorsement on,
PAGE.
17
93
26
26
15
109
70
79
28
39
103
19
8
12
49
100
23
22
109
72
57
32
35
36
37
84
87
93
94
100
103
23
25
26
109
7
10
8
7
190
INDEX.
Writ, — when returnable,
alias and pluries,
test of, .....
return of Sheriff to,
of Attachment. (See Attachment.}
" Inquiry. (See Inquiry.)
in U. S. Court. (See form in Appendix.)
" " service of,
" '■ laws regulating,
" " issue of and proceedings on,
" test of, ... .
" " when and how returnable,
Writ of Error, — form of. (See Appendix.)
lies only on final judgment,
amount in dispute must exceed $2,000,
must be brought within five years,
when it operates as supersedeas,
what must be returned with the writ to the Su
preme Court, ......
PAGE.
7
9
11
12
46
17
160
95
103
103
108
108
1G5
123
124
125
125
126
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.