1 McLean 226 | U.S. Circuit Court for the District of Ohio | 1834
OPINION OF
An action was brought by the plaintiffs in 1830, against Joseph Harris and Cornelius V. Hams, and judgment for 2818 dollars and costs, was entered at December term. In this suit the defendant Haughton became special bail, and bound himself that the Harris’s, should a judgment be recovered against them, should pay the judgment, or render themselves to the marshal. A capias ad satisfaciendum was issued upon the judgment in October, 1S31, to the marshal, which he returned that the defendants were not to be found. At the same term this court adopted a rule “that if a defendant upon a capias, does not give sufficient appearance bail, he shall be committed to prison, to remain until discharged by due course of law. But under neither mesne nor final process, shall any individual be kept imprisoned, who under the insolvent law of the state, has for such demand been released from imprisonment.” In February, 1831, Cornelius V. Harris was discharged from imprisonment for all his debts, under the insolvent law of the state;' and in February, 1832, Joseph Harris was also discharged. The plaintiffs in December, 1832, commenced an action of debt on the recognizance of special bail. In the declaration, the proceeding in the suit against the Harris’s, and the return of the ca. sa. non est are set out. Among other pleas, the defendant sets up the discharge of the Harris’s under the insolvent law of Ohio, and the rule of the court as above stated, in bar of the action; The plaintiffs demurred to this plea, and a joinder being filed to the demurrer, the sufficiency of the plea is presented for the decision of the court.
In the Revised Laws of Ohio, (volume 22, p. 58,) it is enacted, “that after the return of the capias ad respondendum, the defendant may render himself, or be rendered, in discharge of his bail, either before or after judgment; provided such render be made at or before the appearance of the first scire facias against the bail returned scire feci, or of the second scire facias returned nihil, or of the capias ad respondendum, or summons in an action of debt against the bail on his recognizance, returned served; and. not after.” This act was passed in 1824, and was in force when the act of 1828 [4 Stat, 278, c. 68,] was passed by congress, adopting-the “modes of proceedings” in actions at common law, established in the state courts. Under this law and the practice of this court,, the special bail had a right to discharge himself by a surrender of the principals any time-before the writ on the recognizance was-. returned served, or the return of the second' scire facias nihil. And this is the rule of the common law. It is said that the bail are fixed on the return of the capias ad satis-faciendum non est; but it will be found that they have, though it is said to be a matter of favor, until the return of the scire facias served, or the alias writ nihil, within which to surrender their principal. So that the bail are not fixed, unconditionally, till the return of the writ as above stated. Mannin v. Partridge, 14 East, 599.
By the insolvent law of Ohio, of 1824, 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;
In support of the plea, it is contended that the Harris’s, having been discharged under the insolvent law, and as the schedule they exhibited contained the debt on which the plaintiffs obtained their judgment, that they are not liable to be imprisoned on said debt or judgment. That had they been in imprisonment on the judgment when the benefit of the act was extended to them, they must have been immediately discharged. That they are protected from arrest, by the laws of the state, under a heavy penalty, for any debt contained on their schedule, and that under such circumstances the bail cannot be required to surrender them in his discharge. That the law requires nothing to be done in vain, and that to surrender the original defendant, would be in vain, as they could not be held in imprisonment, but must be immediately discharged. That to attempt to make the surrender would subject the bail to an action of trespass, as it would any officer who should knowingly arrest them.
On the part of the plaintiffs, it is contended, that it appears from the pleadings that neither of the original defendants were discharged under the insolvent law, until after judgment in the circuit court. That Joseph Harris was not discharged until after the return- of the ca. sa. and that the rule of court set out in the plea was not adopted until after the return of that execution. That the plaintiffs’ right, therefore, was fixed by the judgment, or by the judgment and the execution, against the bail, and that no mode of discharge subsequent to this can be adopted which shall affect this right. It is insisted that the insolvent laws of the state cannot be enforced by the courts of the United States, and that such laws or a discharge under them cannot affect the proceedings in those courts. That the act of congress of 1828 does not adopt these laws, or authorize the court by rule to adopt them. That the discharge of the defendant from his recognizance under the state law, would be in conflict with the decisions of the supreme court in the case of Ogden v. Saunders, 12 Wheat. [25 U. S.] 369; Shaw v. Robbins, in a note to the case, and Boyle v. Zacharie, 6 Pet. [31 U. S.] 643.
As before remarked, the bail were not fixed, absolutely, until the return of the scire facias served on the second writ nihil. And within this time, the bail, not as a matter of favor, but as a matter of legal right, could surrender their principal and claim- a discharge. This is the law of Ohio. And is it adopted by the act of 1828, and the rule of court? The act in terms adopts in the federal courts the same “modes of proceeding” in the federal courts, as in the state courts. Now is not the surrender of the principal by the bail, a mode of proceeding? In the case of Wayman v. Southard. 10 Wheat. [23 U. S.] 1, the supreme court decided that the terms ‘process,’ and ‘modes of proceeding in a suit,’ embraced Hie whole progress of such suit and every transaction in it, from its commencement to its termination, and until the judgment should be satisfied. The words of the act of 1828 are, “the forms of mesne process, and the forms and modes of proceeding,” shall be the same as in the state courts. And these words embodied in a different statute having the same object in view, received the above construction by the supreme court. Now there was no right fixed against the bail on the return of the ca. sa. so that the rule of court in no sense affected a vested right, but merely changed or modified the remedy. The power of the court to adopt the rule seems to be clear, under the third section of the above act. It provides “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 thereon, shall be the same, except their style, in each state respectively, as are now used in the courts of such 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 be adopted by the legislatures of the respective states for the state courts.” The rule adopted did nothing more than In effect to conform the process against the body, to the mode of proceeding in the state courts, on the same process. It might well be contended that this proceeding may be sustained under the act of 1828, independently of the rule; but the law authorizes the court to make such alterations as shall conform to the state practice.
A state law, as it regards the proceedings of the courts of the United States, can only be in force, by the adoption of congress or under their authority. If then the defendants to the original judgment, having been discharged under the insolvent laws of the state, were not liable to be imprisoned on such judgment; it would be worse than solemn mockery to require them to be surrendered, as the condition on which the special bail shall be discharged. Why require their surrender when they cannot be held in confinement? The law can never require an act to be done, so useless and absurd. Mannin v. Partridge, 14 East, 599; Olcott v. Lilly, 4 Johns. 407; Boggs v. Teackle, 5 Bin. 332; 18 Johns. 335; 9 Serg. & R. 24. But it is said that a discharge of the defendant, will conflict with the decision of the supreme court
The principles decided in the case of Ogden v. Saunders, [supra,] and of Boyle v. Zacharie, [supra,] have no application to the present case. Both of those cases turned upon the ground that the statute relieved from the contract But in the present case the remedy only is affected. The plaintiffs, under the circumstances of the case, have no right to imprison the defendant as a means of enforcing the payment of the judgment.; and consequently they have no right to demand his surrender by the special bail. The plea is sustained and the demurrer overruled— judgment for the defendant.