Bank of Columbia v. Okely

• Decision Date: 22 February 1819
• Parties: BANK OF COLUMBIA v. OKELY
• Court: U.S. Supreme Court

17 U.S. 235

4 Wheat. 235

4 L.Ed. 559

BANK OF COLUMBIA v. OKELY.

February 22, 1819

ERROR to the Circuit Court for the district of Columbia. This was a proceeding in the court below, under the act of assembly of Maryland of 1793, c. 30, incorporating the Bank of Columbia, the 14th section of which is in these words:

'And whereas, it is absolutely necessary, that debts due to the said bank should be punctually paid, to enable the directors to calculate with certainty and precision on meeting the demands that may be made upon them: Be it enacted, that whenever any person or persons are indebted to the said bank for moneys borrowed by them, or for bonds, bills or notes

given or indorsed by them, with an express consent in writing that they may be made negotiable at the said bank, and shall refuse or neglect to make payment at the time the same become due, the president shall cause a demand in writing on the person of the said delinquent or delinquents, having consented as aforesaid; or if not to be found, have the same left at his last place of abode; and if the money so due shall not be paid, within ten days after such demand made, or notice left at his last place of abode as aforesaid, it shall and may be lawful for the president, at his election, to write to the clerk of the general court, or of the county in which the said delinquent or delinquents may reside, or did, at the time he or they contracted the debt reside, and send to the said clerk the bond, bill or note due, with proof of the demand made as aforesaid, and order the said clerk to issue capias ad satisfaciendum, fieri facias, or attachment by way of execution, on which the debt and costs may be levied, by selling the property of the defendant for the sum or sums of money mentioned in the said bond, bill or note; and the clerk of the general court, and the clerks of the several county courts, are hereby respectively required to issue such execution or executions, which shall be made returnable to the court whose clerk shall issue the same, which shall first sit after issuing thereof, and shall be as valid and as effectual in law, to all intents and purposes, as if the same had issued on judgments regularly obtained in the ordinary course of proceeding in the said court; and such execution or executions shall not be liable to be stayed or delayed by any supersedeas, writ of error,

appeal or injunction from the chancellor: Provided always, that before any execution shall issue as aforesaid, the president of the bank shall make an oath (or affirmation, if he shall be of such religious society as allowed by this state to make affirmation), ascertaining whether the whole or what part of the debt due to the bank on the said bond, bill or note, is due; which oath or affirmation shall be filed in the office of the clerk of the court from which the execution shall issue; and if the defendant shall dispute the whole, or any part of the said debt, on the return of the execution, the court before whom it is is returned shall and may order an issue to be joined, and trial to be had in the same court at which the return is made; and shall make such other proceedings, that justice may be done in the speediest manner.'

A motion was made in the court below to quash an execution, which had been issued against the defendant, under this section, upon the ground, that it was contrary to the constitution of the United States, article 7th of amendments,¹ and to the 21st article of the bill of rights of Maryland.²

The court below quashed the execution upon these grounds, and the cause was brought by writ of error to this court.

February 17th.

Key, for the plaintiff, argued, that the act of congress of the 27th of February 1801, giving effect to the laws of Maryland in that part of the district of Columbia, which was ceded to the United States by the state of Maryland, was a re-enactment of those laws, under the exclusive powers of legislation given to congress over the district; and that, consequently, the question of the repugnancy to the local constitution of Maryland could not properly arise. That such summary proceedings, whether of a criminal or civil nature, which were in force, at the time when the constitution of the United States was established, were to be preserved, notwithstanding the 7th article of the amendments to that constitution. That the statute of Magna Charta, in England, from which the 21st article of the bill of rights of Maryland is copied, was never supposed to be infringed by the multitude of modern statutes, under which summary convictions for petty offences were had, and the various summary proceedings authorized by the revenue laws, which had also been adopted in this country: but that what was conclusive of the question was, that no person could ever be made liable to the peculiar process given by this act of Maryland, without his own express consent in writing, that the bill or note, drawn or indorsed by him, should be negotiable at the Bank of Columbia; which, taken in connection with the other provisions of the section,

was equivalent to an agreement, that this summary process should issue against him, in case of non-payment. It was, therefore, a case within the maxim pro se introducto. Even after the consent thus given to waive the trial by jury, in the first instance, the party may dispute the demand, on the return of the execution, in which case, in court is to order an issue to be joined, and a trial to be immediately had by jury. So that the whole substantial effect of the provision is, to authorize the commencement of a suit, by an attachment of the person and property of the debtor, instead of the usual common-law process.

Jones, contra, insisted, that the act of congress of the 29th of February 1801, giving effect to the then existing laws of Maryland, in that part of the district of Columbia which had been ceded to the United States, by the state of Maryland, did not extend to such acts as are repugnant to the state and national constitutions. The bill of rights of Maryland limits the legislative powers of the assembly of Maryland. By the third article of that bill of rights, the right of trial by jury is secured in all cases at common law, and the same right is secured by the seventh amendment to the constitution of the United States, in all cases at common law above the value of twenty dollars. The consent of the party that his paper should be negotiable at the bank, was by no means equivalent to an agreement, that this summary process of execution, before judgment, inverting the just and natural order of judicial proceedings should be issued against him. Nor could the party thus consent, prospectively, to renounce a common-law right. As a stipulation in a policy of insurance, not to sue, but to abide by the award of arbitrators, will not deprive the courts of common law of their ordinary jurisdiction, so neither will the consent of the party thus given, deprive him of his right to a trial by jury. But even supposing the process were in other respects regular, the act under which it is issued does not empower the clerk of the circuit court of the district of Columbia to issue it. It is...