United States v. Phelps
33 U.S. 700 (1834)

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U.S. Supreme Court

United States v. Phelps, 33 U.S. 8 Pet. 700 700 (1834)

United States v. Phelps

33 U.S. (8 Pet.) 700

Syllabus

Under the sixty-fifth section of the Duty Act of 1799, where a bond has been given for duties and errors in the calculation thereof are alleged on affidavit, at the first term to which suit has been brought on the bond, a delay of one term is allowed for the purposes of examination and correction. Where there is a real defense to the claim on the bond, an opportunity to obtain evidence by a continuance according to the circumstances of the case must be given.

Mr. Butler, Attorney General of the United States, moved for a mandamus to be directed to the district court above mentioned commanding it to vacate a rule entered on 12 March instant in a certain cause pending in said court between the United States of America plaintiffs and Anson G. Phelps, Elisha Peck, and William E. Dodge, defendants, by which rule the said court ordered the trial of said cause to be continued until the term of August next.

The facts disclosed by the affidavits and other papers on which the motion was founded were:

The suit of the United States against Phelps and others was brought to recover the sum of $1,678.70, being the ascertained amount of duties due on a custom house bond given for an importation of certain lead weights and basins for the house of Phelps & Peck. The capias was issued on 10 February last, returnable on the 13th of that month, the February term of that court.

On the return day, a declaration was filed and served and time allowed to plead until 15 February, when the defendants, after oyer of the bond and its condition, pleaded non est factum and gave notice that they would prove, that the officers of the customs committed an error in rating the said articles as liable to a duty of three cents per pound instead

Page 33 U. S. 701

of rating them as liable to an ad valorem duty of fifteen percent; that the bond, instead of being taken for $1,678.70, ought to have been taken for only $332.07, &c.

On the same 15 February, the defendants made oath, that an error had been committed in the liquidation of the duties demanded on the bond, and that the same had been notified to the collector, prior to the commencement of the said return term, whereupon the court granted a continuance until the next succeeding March term.

At the March term, viz. on 11 March instant, the plaintiff's attorney moved to proceed to trial, but the defendants, in pursuance of previous notice, moved the district court that a commission be issued to Liverpool to take the examination of material witnesses residing in Great Britain. The district attorney objected that the court was restrained by the act of Congress from allowing a continuance for a longer term than the said term of March, the cause having been continued from the return term of the writ, until that term, but the court being of opinion that the defendants were entitled to make their defense by witnesses, and to have a reasonable delay of trial for the purpose of procuring testimony, overruled this objection and granted the rule applied for, for the vacating of which by mandamus the present motion is made.

Page 33 U. S. 703

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