Lead Opinion
delivered the opinion of the Court.
This is a writ of error to the judgment, of the circuit court ■ for the district of Ohio.
The question now before this court is, whether the plea contains a substantial defence to the action of debt brought upon the recognizance of special bail. In order to'clear the case of embarrassment from collateral matters, it may be proper to state, that the recognizance of special bail being a part of the proceedings on a suit; and subject to the regulation of the court, the nature, extent and limitations of the responsibility
And this constitutes an answer to that part of the argument at the bar, founded upon the notion, that by the return of the-capias ad satisfaciendum, the plaintiffs had acquired a fixed and absolute right against the bail; not to be affected by any rules of the court. So far from the right being absolute, it was vested sub modo only, and liable to be defeated in the events prescribed by the prior rules of the court, and the statute of Ohio above, referred to. It is true, that it has been said that by a return of non est inventus on a capias ad satisfaciendum,
And this leads us to the remark, that where the party is, by the practice of the court, entitled to an exoneretur without, a positive surrender of the principal, according- to the terms of the recognizance, he is, á fortiori, entitled to' insist on it by way of defence, where he is entitled, ex debito justitise, to surrender the principal. Now, the doctrine is clearly established, that where the principal would be entitled to an immediate and unconditional discharge, if he had been surrendered, there (he bail are entitled to relief by entering an exoneretur, without any surrender. This was decided in Mannin v. Partridge, 14 East 599 ; Boggs v. Teackle,
Slate laws cannot 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. The whole efficacy of such laws in the courts of the United States, depends upon the enactments of congress. So far as they are adopted by congress they are obligatory. Beyond this, they have no controlling influence. Congress may adopt such state laws directly by a substantive enactment, or they may confide the authority to adopt them to the courts of the United States. Examples of both sorts exist in the national legislation. The process act of 1789, ch. 21, expressly adopted the forms of writs and modes of process of the state courts, in suits at common law. The act of 1792, ch. 36, permanently continued the forms of writs, executions and other process, and the forms and modes of proceeding in suits at common law, then in use in the courts of the United States, under the process act of 1789 ; but with this remarkable difference, that they were subject to such alterations and additions as the said
If, therefore, the present case stood upon the mere ground of the authority conferred on the courts, of the United States by the acts of 1789 and 1792, there would seem to be no solid objection to the authority by the circuit court of Ohio to make the rule referred to in the pleadings. • It is no more than a-, regulation of the modes of proceeding in a suit, in order to con-'
But ini fact the present case does not depend upon the provisions of the acts of 1789 or 1792 ; but it is directly within and governed by the process act of the 19th of May 1828, ch. 68. That act in the first section declares, that the forms of mesne process, and the forms and modes of proceeding in suits at .common law in the courts of the United States, held in states ad- ■ mitted into the union since 1789, (as the state of Ohio has 1 been) shall be tire same in each of the said states, respectively, as were then used in the highest court of original and general jurisdiction in the.same; subject to such alterations and additions as the said courts of the United States, respectively, shall, in their discretion, deem expedient, or to such regulations as the-supreme court shall think proper from time to time, by rules, to prescribe to any circuit or district court concerning the same. The third section declares, that writs of execution and other final process issued on judgments and decrees rendered in any courts of the United States, and “ the proceedings thereupon,” shall be the same in each state, respectively, as are now used in the courts of such state, &c. &c. 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 such courts, as to conform the same to any change which may be adopted by the legislature of the respective state, for the state courts.
This act was made after the decisions in Wayman v. Southard, and the Bank of the United States v. Halstead,
We ar.e then led to the inquiry, what were the laws of Ohio in regard to insolvent debtors at the time of the passage of the act of 1828. By the insolvent act of Ohio, of the 23d of February 1824 (Laws of Ohio, Revision of 1824, vol. 22, sect. 8, 9, p. 327, 328), which continued in force until it was repealed and superseded by the insolvent act of. 1831, it is provided, that the certificate of the commissioner of insolvents, duly obtained, shall entitle the insolvent, if in custody upon mesne or final process in any civil action, to an immediate discharge therefrom, upon his complying with the requisites of the act. And it is further provided, that the final certificate of the court of common pleas, duly obtained, shall protect the insolvent for ever after from imprisonment for any suit or cause of action, debt or demand mentioned in the schedule given in under the insolvent proceedings; and a penalty is also inflicted upon any sheriff or other officer, who should knowingly or wilfully arrest any person contrary to this provision. The act of 1831 (Laws of Ohio, Revision'of 1831, vol. 29, sec. 21, 36, p. 333, 336) contains a similar provision, protecting the insolvent under like circumstances from imprisonment, and making the sheriff or other officer, who shall arrest him contrary to the act, liable to an action of trespass. Now, the' repeal of the act of 1824, by the act of 1831, pould have no legal effect to change the existing forms of mesne or ftnat process, Or the modes of proceeding, thereoñln the courts'
Upon these grounds, without going into a more elaborate review. of the principles applicable to the case, we are of opinion that the judgment of the circuit court was right; and that it ought to be affirmed with costs.
Dissenting Opinion
dissenting.
This is the first time this court has been called upon to give a construction to the act of congress of the 19th of May 1828, Sess. Laws 56. And the rule? and principles adopted by the circuit court, and which appear to be sanctioned by this court, when carried out to their full extent, appear to me to be such an innovation, upon what has been heretofore understood to be the law by which the courts of the United States were to be governed, as could not have been intended by congress by the act of 1828. It is giving to the courts die power, by rule of court, to introduce and enforce state insolvent systems.
It authorizes the courts to abolish all remedy which a ere- - ditor may have against the body of his debtor who has been discharged under a state insolvent law.. And if the courts have this power, they have the same power over a fieri facias, and to exempt all property acquired after the discharge of the insolvent from the payment of his antecedent debts; if such be the state law. The act is general, extending to writs of execution, and all other final process. And in'addition to this, it alters the whole law of remedy against bail, in such cases. A capias ad satisfaciendum against the principal is an indispensable preliminary step to a prosecution against the. bail; and if the court has a right to order, that no capias ad satisfacien-dum shall be issued, it is taking from the creditor all remedy against the bail. To say that an execution may be taken out, but shall not be executed upon the party, is a mere mockery of
As between the citizens of Ohio, and in their own courts, they have full power to adopt such course in this respect as the wisdom of their legislature may dictate. But the present is a question between the citizens of that state, and the citizens of another state. And that made the great and leading dis*-tinction adopted by this court in the case of Saunders v, Ogden, 12 Wheaton 531. And, indeed, it was the very point upon which that .cause turned. And if the practical operation of the act of 1828 is to be what is now sanctioned by this court, it is certainly overruling that decision. So.far as that goes, I can have no particular objection, as I was in the minority in that case. But this case involves other important considerations: It is an action brought by citizens of the state of New York, against citizens of the state of Ohio, upon a recognizance of bail. The pleadings in the cause terminated in a demurrer to the plea; and the judgment of the court sustained the validity of the plea, and defeated the plaintiffs’ right of recovery. A brief statement of the facts as disclosed by the record will aid in a right understanding of the questions that are presented for consideration. ■ The defendant Richard Haughton became special bail for Joseph Harris and Cornelius V. Harris in a suit brought against them by the plaintiffs in this cause. On the 12th day of October 1831, a capias ad satisfaciendum was issued against them on the judgment which had been recovered for 2846 dollars 56 cents. This capias ad satisfaciendum was returned Not found, at the December term 1831 'of the circuit court. This execution, it is to be presumed, was returnable on the first day of the term, which is according to the ordinary course of proceedings.
At the same December term 1831, the rule of court, set out in the plea was adopted; which orders and directs, that no person, either under mesne or final process, shall be kept in prison, who, under the insolvent law of the state, has for such demand been released from imprisonment. The plea alleges, that Cornelius V. Harris, one of the defendants in the original suit, was, at the February term 1831 of the court of common
In the case of Saunders v. Ogden, the parties, as in the present case, were citizens of different stales ; and the decision of the court was, that as between parties of different states, the state insolvent laws had no application. Mr Justice Johnson, who delivered the opinion of the court, uses very strong language on this point, and which cannot be misunderstood. “All this mockery of justice,” says he, “and the jealousies, recriminations and perhaps retaliations which might grow out of it, are avoided, if the power of the states over contracts, after they become the subject exclusively of judicial cognizance, is limited to the controversies of their own-citizens. And it does appear to me almost incontrovertible, that the states cannot proceed one step farther, without exercising a power incompatible with the acknowledged powers of other states, or of the United States, and with the rights of the citizens of other states. Every bankrupt or insolvent system in the world must partake of the character of ajudicial investigation. Parties whose rights are to be affected are entitled to a hearing. But on what principle can a citizen of another state be forced into the courts of a state for this investigation 1 The judgment to be passed is to
I have been thus particular in quoting the very language of the court, that it may speak for itself. And that it was adopted in its fullest extent is evident, by what fell from the court in the case of Boyle v. Zacharie and Turner,
The case of Boyle v. Zacharie and Turner, was decided in the year 1832; and the enacting clause of the act of congress of 1828, could not have been supposed to change the principles adopted in Ogden and Saunders. If that act is to govern and control the case now before the court, it must be by virtue of the rule which has been adopted by the circuit court of Ohio. What is the law of 1828 1 It declares, “that writs of execution and other final process, issued on judgments 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 such state, &c. 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 the final process in said courts, as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.” A capias ad satisfaciendum was an execution in use in the courts of the state of Ohio, in the year 1828, when the act in question was passed. It was, therefore, adopted as a writ to be used'in tiie courts of the United States.
The rule set up in this jilea doesnotmakeanyaZteraiion, whatever, in the execution. That remains the sanie precisely as it was before ; and it only forbids the effect and operation of it. And if the rule is to be considered a part of the execution, and to be taken as if incorporated in the body of the writ, it would present a very singular process, commanding the marshal to take the body of the defendant, but forbidding him to keep the prisoner in confinement. Such incongruity cannot be attributed to this proviso. The rule, I think, is not authorized by this statute, and especially as it was adopted after the bail was fixed in law, by the return Not found, upon the capias ad satisfaciendum issued against the principals. That such a
This case would seem to put at rest the question as to the manner in which the bail is to avail himself of any matter, which entitles him to relief, when application is made after the return of the capias ad satisfaciendum, — that it must be by motion and hot by plea in bar. But if this was pleadable, the plea now in question is defective. It does not allege a surrender of the principals, or that an exoneretur has been entered.'
■ ■ In support of the plea it was contended, as it has been in the case now before the court; that if the' bankruptcy and certificate was a legal discharge of the principal, it was also.a legal discharge of the bail, and if so maybe pleaded. To this it was answered, that the plea of bankruptcy could only be interposed by the bankrupt, himself: and'the bail, if entitled to any relief, must obtain it, by application to the summary jurisdiction of the court. . And this principle, was sanctioned by the court. Lord Eldon said, We do not mean to preclude any application for. summary relief oh the part of the bail. But on this record judgment must be given, for the plaiutiflf. That the' plea of bankruptcy is given to the bankrupt, to be made use. of as the means of discharging himself if he please. But there may be cases in which the bankrupt may not choose to make use of his certificate. And he cannot, through the medium of his bail,’ bé obliged to make use of his certificate, whether he will or not. It is the duty of the bail under.their recognizance to surrender .‘.lie -bankrupt; and it remains with the bankrupt himself to determine whether any use shall be made of the certificate. And Mr Justice Buller observed, that it is of importance to the public and to the profession, to put an end to attempts to introduce upon the record questions of practice, which cannot be considered as legal defences; but which belong to what may be called the equity side of the court. This action is brought for a legal demand, arising upon a debt of record, and the defendant is called upon to state a legal defence upon record, and not merely to say he has equity in his favour. He must either show a legal impossibility to perform .the condition of the .recognizance, or state something that will discharge him ; and he has done neither. These cases are abundantly sufficient to show that it is a well settled rule of law, that the bail cannot set up by plea in bar, the matter contained in the plea now in question. But if
Dissenting Opinion
dissenting.
As I.fully concur in opinion with Judge Thompson,- in all the views which he has taken of this ca.se, it would be unnecessary for me to do more than express-such concurrence; but the course of adjudication which has prevailed in the circuit .court of Pennsylvania, on the subject of the insolvent laws of the states of this union, since April 1831; renders it indispensable for me to do more than declare my dissent from the opinion of the court. In the case of Woodhull and Davis v. Waguer, the defendant had been discharged by the insolvent law of Pennsylvania; after which he was arrested on a capias ad satisfaciendum from the circuit court, on a judgment obtained there. An application was made for his discharge, which was refused by the court; and he was remanded- to custody, on the ground, that the debt, being payable,in New York, and the plaintiffs citizens of that state when the debt was contracted and when the defendant, was discharged by the insolvent law of .Pennsylvania ; such discharge was -wholly inoperative. Similar cases have since occurred in which that court have held the law to be settled, and do not suffer the question to be argued.
In coming to, and for four years adhering to this course of adjudication, the judges of that court did not act on their own opinion; they cbnsidered the law to have been settled by the final judgment of this court in Ogden v. Saunders, 12 Wheaton 369; and the case of Shaw v. Robbins, referred to in the note to the case: and as the.rule on which we proceeded was laid down by the authority of this court, we felt boutid to observe and enforce it, whatever may have been our views of it as individual judges, or as a circuit court.
But in so doing, we did not consider it as a question of prac
. The third proposition of Judge Johnson, thus adopted as a principle of constitutional law, finally and conclusively, is this:—
“ But when, in the exercise of that power, the states pass beyond theirownlimitsand the rights of their own citizens, and act upon the rights of citizens of other states ; then arises a conflict of sovereign power, and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other states and with the constitution of the United States.”
A more important principle of constitutional law was never presented for the consideration of any judicial tribunal: and when, three years since, it was solemnly declared by this court that it wa's to be deemed as one which had become by its der cisions final and conclusive; the circuit court of Pennsylvania' did not feel at liberty to depart from it, but' followed it as a prescribed rule enjoined on their observance by paramount authority; deeming it their judicial duty. That court could not consider, that the effect of a discharge bv the insolvent law of Pennsylvania, on a debt due to a citizen of New York, and payable there, depended on a rule of court which it could make and unmake, at its discretion, from time to time, as a matter of practice.
With the cases of Ogden v. Saunders, Shaw v. Robbins, and Boyle v. Zachary, before them, they could not judicially
A circuit court may be holden by a judge of this court, or in his absence by the district judge alone ; and either has the same power to make rules of court, as both.together. The question is simply this. The constitution — the rights of other states — the judicial power granted' to the United States as declared by this-court, are violated -by a state insolvent law. Yet a circuit court adopts, by a rule of its own, that state law as the rule of its decision, and renders a judgment according to its provisions; and this is the case before- us. The plaintiffs are citizens of New York; the defendants citizens of Ohio, sued in the circuit court of that district; by whose judgment the defendant is released from the obligation of .his contract^ as special bail; solély by the operation of a- law of Ohio adopted by a rule of court, when, in the absence of such a law, he would be absolutely bound to pay the debt demanded from him. That judgment is now affirmed by this court, on their construction of acts-of congress, whose titles are, to regulate processes in the courts of the United States; and the enacting clauses of which are confined to the “ forms of mesne process,” the forms and modes of “ proceedings in the-courts of the United States,” to writs of execution “and other final processes, and the proceedings thereupon.” A law which the legislative power of a state is incompetent to pass, because it.is, unconstitutional and void,, without a rule of court; has become valid and operative by the potency of judicial-power, exercised by any judge at his mere discretion. Thus removing all conflicts of sovereign power by the exercise of one, which becomes practically paramount to the final .and conclusive decisions of this court, the rights of other states, and the constitution of .the United States, as
If a state law is incompatible with the constitution of the union, it must be inoperative till the constitution is amended. The legislative and judicial power combined, cannot cure a defect which the supreme law'of the land declares to be fatal-to a state law; and when, by the solemn judgment of this court; it is declared, that a state law, adopted by a rule of the circuit court, is the rule of both right and remedy in a suit between a citizen of New York plaintiff, and a citizen of Ohio; I am judicially bound to consider, that it, is not open to any objections stated in the third proposition of Judge Johnson, in Ogden v. Saunders; or that that case, with that of Shaw v. Robbins, and Boyle v. Zachary, are now overruled. As the case on the record does not admit of the first alternative, but is directly obnoxious to' those objections; the inevitable result is, that the affirmance of this judgment must be taken to be the latter. The consequence is, that the effect of state insolvent laws on the citizens of other states is, for the present, an open question in the courts of the states and of the United States, notwithstanding any former decisions of this court in the cases referred to. So I shall consider it here and.in the circuit court, and answer to the profession and suitors for past errors, as those of adoption, not from choice, but a sense of judicial duty ; and being now absolved from an áuthority heretofore deerfied binding, shall act for the future on principle. That a paramount authority prescribing a rule-for my judgment, cannot leave my discretion uncontrolled ; when my judgments free, my discretion is not bound; and that what, in the exercise of my best judicial discretion, I feel bound to doin pronouncing the judgments of a circuit court, according to my deliberate conviction on the law' of the case, I cannot undo or ‘avoid doing, by any
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel; . on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs. ■