THE UNITED STATES v. PARKER ET AL
| Decision Date | 01 January 1797 |
| Citation | 2 U.S. 373 |
| Court | U.S. Supreme Court |
A Capias had issued in this cause against Daniel Parker, Wm. Duer, and John Holker, returnable to April term 1792; and the Marshal then returned, Cepi Corpus as to Duer, (who gave special bail in due time) and non sunt inventi, as to Parker and Holker. After a declaration was filed ( reciting that the Marshal had not found two of the defendants within his District, and proceeding against the other alone, upon the principles
of the practice of the Courts, of Pennsylvania) after issue had been joined, and a variety of continuances, and other entries, made upon the record, an original, not an Alias, Capias was issued, on the 8th of August 1796, returnable to October term following, against Holker alone, upon which writ he was arrested; but on a hearing before Wilson, Justice, he was discharged on common bail.* In October term, the Attorney of the District (Rawle) had obtained two rules: 1st. That Holker shew cause on the first day of the present term; why the writ issued should not be amended, conformably to the precept, which, it was alledged, directed an Alias Capias: And 2nd. That Holker shew cause, why the Plaintiff should not file common bail for him. It was agreed, however, that the case should be argued, as if the last writ had been an Alias Capias, reciting the original Capias and return; and the only question discussed was Whether an Alias Capias could issue, after the lapse of so many terms, and under the circumstances appearing upon the record, to arrest Holker, and make him a party to the existing suit? Rawle, for the plaintiff, observed, that upon principles of common justice, and, he thought, upon principles of law too, when there were several defendants, and one only was taken on the first writ, process might issue, from time to time, to bring the others into Court, without compelling the plaintiff to discontinue his action. By the 11th section of the Judicial Act (1 Vol. Swift's Edit. p. 58. 9.) it is provided, that the Courts of the United States, 'shall have power 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 respective jurisdictions, and agreeable to the principles and usages of law.' It is only incumbent on the plaintiff, therefore, to shew, that the present writ is necessary to the efficient exercise of the Court's jurisdiction, and that it is agreeable to the principles and usages of law. It is admitted, that the course of proceeding in England is different. There, the defendant, who is not taken upon the writ, must be pursued to outlawry; and if he does not enter bail, in order to avoid the penal consequences, the plaintiff applies to the Exchequer for a sequestration, and obtains payment from the outlaw's effects. 1 Stra. 473 2 Bl. Rep. 759. 2 Bl. Com. 283. But no mode of * This action had been originally instituted in the Supreme Court of Pennsylvania; and Holker (who was then the only person arrested) pressed for a trial; but after an ineffectual opposition to an order for bringing on the cause, the Attorney of the District entered a discontinuance. On this ground, I am informed, Judge Wilson directed common bail to be accepted from Holker in the second suit.
proceeding to outlawry in civil cases, is recognized, or prescribed, by any law of the Federal, or State, government; and even in criminal cases, it is questionable, whether the State law could furnish a rule for the United States. Unless, therefore, the mode now pursued shall be sanctioned, endless inconveniencies will arise in the administration of justice; for, the plaintiff cannot discontinue his action, without certainly losing bail as to one defendant, while he has only a chance of obtaining it from another. If then, there is a necessity of adopting some process to prevent a right being without a remedy, the present process will be found perfectly consistent with the principles and usages of law; and the informality of the continuances will not be of sufficient moment to attract the attention of the Court. Sell. Pr. 400. Such process has been issued repeatedly, both in the Supreme Court and Common Pleas of Pennsylvania; though the regularity of it was never, indeed, contested. In England, however, the Courts of Law and Chancery were bound by forms of writ, of almost immemorial antiquity, and always prescribed by the express authority of Parliament; 'till the pressure of business, and the diversity of the cases that arose, produced the statute of Westm. 2. which authorised the clerks in Chancery to frame writs in consimili casu; and in the exercise of that authority, from time to time, a considerable latitude has been taken. 4 Reeves H. E. L. 426. 2 Reeves H. E. L. 202. 2 Inst. 404. 407. Gilb. C. P. 2. 3. 4. 8. Co. 48. An authority strictly analogous is given to the Federal Courts by the Judicial act; and as there is no common officina brevium, it follows, of course, that each Court must frame its own writs, according to the nature of the respective cases. Gibson, Ingersoll and Dallas, for the defendant, Holker, waved all objection to the mere form of the second capias; but insisted, that even an alias capias could not issue, unless it was tested of the term, to which the original was returned, and made returnable to the next immediately ensuing term.* They exemplified the mode of proceeding by outlawry in England, on a return of non est inventus as to one of several defendants; the force of the issue joined; and the impracticability of making an amendment in the declaration filed, to meet the new case to be brought upon the record; from 1 Stra. 473. 1 Wils. 78. 2 Sellon Pr. 389. 5 Com. Dig. 652. One defendant has given bail for the whole amount of the demand; the declaration expressly states, that Holker is not a party to the suit; and an issue * Iredell, Justice. Is it intended to maintain the writ on the footing of an alias, unless issued to the next term, after the return of the original capias? Rawle. I think it can be so maintained.
is actually joined by Duer alone. If, therefore, the plaintiff succeeds in the present object, how is the record to be new modelled, upon any principle of law, or practice, so as to be rendered consistent with itself, and with the truth of the case? What will be the title of the declaration; of what term shall it be filed; what shall be the form of the old, or any new, issue; and what is to be done with the original writ, and its return? Thus, the perplexity arising from the plaintiff's doctrine, (which, if it is just in one case, must be just in every case) is endless and insurmountable. Suppose the suit originated in the Common Pleas, but had been removed into the Supreme Court before the second writ issues: from which Court shall the second writ issue, and may one half of the cause be depending in the Court above, and the other half in the Court below? Suppose a verdict given on the first writ, before the second writ is returned: can there be two verdicts for the same cause, how shall the amount be ascertained, or execution issue; and what is to be done if the verdicts should be contradictory? Suppose there are ten defendants to one contract, can it be reasonable or just, that there should be ten writs issued, or that ten bail bonds should be successively taken, for ten times the amount of the demand, or how is the bail to be modified and apportioned? Many other hypotheses might be fairly suggested to evince the extravagance, to which an allowance of the present motion would lead; and even after allowing it, there would arise another difficulty, in ascertaining in what action common bail should be entered for Holker, as there are now clearly two actions for the same cause on the records. See 5 Com. Dig. 297. But it is not intended to leave the plaintiff without a remedy. If the bail is satisfactory (and satisfactory bail can always be exacted, to the full amount of the demand upon the arrest of any one of the parties) the plaintiff may proceed to recover judgment, conformably to the state practice. If the plaintiff is not satisfied with the bail, then there may be a discontinuance; or, perhaps, the process may be kept alive, from term to term, till all the...
To continue reading
Request your trial