2 U.S. 373 (1797)

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U.S. Supreme Court


2 U.S. 373 (F.Cas.) 2 Dall. 373

The United States
Parker, et al.

Circuit Court, Pennsylvania District

April Term, 1797

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

Page 2 U.S. 373, 374

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. [2 U.S. 373, 375]

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