Beers v. Haughton,
34 U.S. 329 (1835)

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U.S. Supreme Court

Beers v. Haughton, 34 U.S. 9 Pet. 329 329 (1835)

Beers v. Haughton

34 U.S. (9 Pet.) 329


Ohio. In June, 1830, Beers et al. brought an action of assumpsit in the Circuit Court of Ohio against J. Harris and C. Harris and obtained judgment against them for two thousand eight hundred and eighteen dollars and costs, at December term. Houghton became special bail in this action by recognizing, viz. that the defendants in the action should pay and satisfy the judgment recovered against them or render themselves to the custody of the marshal of the district of Ohio. In October, 1831, a writ of capias ad satisfaciendum was issued upon the judgment and returned to December term, 1831, that the Harris' were not found. In February, 1831, C. Harris was discharged from imprisonment for all his debts under the insolvent law of Ohio. J. Harris was in like

manner discharged in February, 1832. In December, 1832, Beers et al. commenced an action of debt, on the recognizance of bail against Houghton. The defendant pleaded the discharge of J. and C. Harris under the insolvent law of Ohio, of 1831, and a rule of the circuit court adopted at December term, 1831. The rule of court was as follows.

"If the defendant on 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 or final process shall any individual be kept in prison who, under the insolvent law of the state, has for such demand been released from imprisonment."

The, plaintiffs demurred to the plea and, upon joinder in demurrer, the circuit court gave judgment for the defendant. The judgment of the circuit court was affirmed.

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 created thereby are to be decided not by a mere examination of the terms of the instrument, but by a reference to the known rules of the court and the principles of law applicable thereto. Whatever, in the sense of these rules and principles will constitute a discharge of the liability of the special bail must be deemed included within the purview of the instrument, as much as if it were expressly stated.

By the rules of the circuit court of Ohio adopted as early as January, 1808, the liability of special bail was provided for and limited, and it was declared that special bail may surrender their principal at any time before or after judgment against the principal, provided such surrender shall be before a return of a scire facias executed, or a second scire facias returned "nihil" against the bail. And this in fact constituted a part of the law of Ohio at the time the present recognizance was given, the same having been so enacted by the legislature. This act of the Legislature of Ohio was in force at the time of the passage of the Act of Congress of 19 May, 1828, regulating the process of the courts of the United States in the new states, and must therefore be deemed as a part of the "modes of proceeding in suits," and to have been adopted by it, so that the surrender of the principal

Page 34 U. S. 330

within the time thus prescribed, is not a mere matter of favor of the court, but is strictly a matter of legal right.

It is not strictly true that on the return of "non est inventus" to a capias ad satisfaciendum against the principal, the bail is "fixed," in courts, acting professedly under the common law and independently of statute. So much are the proceedings against bail deemed a matter subject to the regulation and practice of the court that the court will not hesitate to relieve them in a summary manner, and direct an exoneretur to be entered in uses by the indulgence of the court by giving them time to render the principal until the appearance day of the last scire facias against them, as in cases of strict right.

When bail is entitled to be discharged ex debito justitiae, they may not only apply for an exoneretur by way of summary proceeding, but they may plead the matter as a bar to a suit in their defense. But when the discharge is matter of indulgence only, the application is to the discretion of the court, and an exoneretur cannot be insisted on except by way of motion.

When 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 a fortiori entitled to insist on it by way of defense; when he is entitled, ex debito justitiae, to surrender the principal.

The doctrine is fully established that where the principal would be clearly entitled to an immediate and unconditional discharge if he had been surrendered, there the bail are entitled to relief by entering an exoneretur without any surrender. And a fortiori this doctrine will apply when the law prohibits the party from being imprisoned at all, or when, by the positive operation of law, a surrender is prevented.

There is no doubt that the Legislature of Ohio possessed full constitutional authority to pass laws whereby insolvent debtors should be released or protected from arrest or imprisonment of their persons on any action for any debt or demand due by them. The right to imprison constitutes no part of the contract, and a discharge of the person of the party from imprisonment does not impair the obligation of the contract, but leaves it in full force against his property and effects.

State 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 substantive enactments, or they may confide the authority to adopt them to the courts of the United States.

Under the authority conferred on the courts of the United States by the acts of 1789 and 1792, there would be no solid objection to the decision of the Circuit Court of Ohio, in this case but it is directly within and governed by, the Process Act of 19 May, 1828, ch. 63.

The Process Act of 1798 expressly adopts the mesne process and modes of proceeding in suits at common law then existing in the highest state court under the state laws, which, of course, included all the regulations of the state laws as to bail and exemptions of the party from arrest and imprisonment. In regard also to writs of execution, and other final process, and "the proceedings

Page 34 U. S. 331

thereupon," it adopts an equally comprehensive language and declares they shall be the same as were then used in the courts of the state.

The rule of the circuit court is in perfect coincidence with the state laws existing in 1828, and if it were not, the circuit court had authority, by the very provisions of the act of 1828, to make such a rule as a regulation of the proceedings upon final process so as to conform the same to those laws of the state on the same subject.

The cases of Sturges v. Crowninshield, 4 Wheat. 200, 4 Cond. 409; Mason v. Haile, 12 Wheat. 370, 6 Cond. 535; Wayman v. Southard, 10 Wheat. 1, 6 Cond. 1; United States Bank v. Halstead, 10 Wheat. 51, 6 Cond. 22, cited.

On 14 June, 1830, the plaintiffs, citizens and residents of the State of New York, commenced their action of assumpsit in the United States Circuit Court for the District of Ohio against Joseph Harris and Cornelius V. Harris of the State of Ohio and recovered judgment against them at the December term, 1830, for $2,846.56.

In this action against the Harrises, the present defendant, Haughton, became their special bail.

On 12 October 1831, a writ of capias ad satisfaciendum was issued against the Harrises, and returned to the December term of that year "not found."

On 24 December, 1832, the plaintiffs commenced their present action against Haughton upon his recognizance of bail, returnable to 1 May then next. A declaration was filed in the usual form, to which the defendant filed several pleas, and among others, the following, designated in the record as the 8th, (the 4th, 5th, 6th and 7th being withdrawn) to-wit:

"And the said defendant, for further plea in this behalf, says actio non because he says that by the tenth rule of practice of this court, established and adopted by this court at its December term 1831, which said rule has ever since been and now is in full force and effect, it is provided 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

Page 34 U. S. 332

law of the state has for such demand been released from imprisonment. And the said defendant avers that after the said debt became due upon which the said judgment in the said declaration mentioned is founded, to-wit, in February term in the year 1831, the said Cornelius V. Harris being returned to the Court of Common Pleas for Hamilton County and State of Ohio, by the Commissioner of Insolvents of Hamilton County and State of Ohio, as a resident of said county and state for more than two years next preceding, as an applicant for the benefit of the act entitled an act for the relief of insolvent debtors, and having also returned a schedule in writing, delivered to said commissioner by said Cornelius V. Harris of all debts by him owing, among which the said debt in the judgment in the said plaintiff's declaration mentioned is founded is named, did, at said February term of said court, personally appear before the judges of said court in open court, and the said court, then and there having full jurisdiction of such matters and such applications for relief, did then and there, at the term last aforesaid, order and adjudge that the said Cornelius V. Harris should forever after be protected from arrest or imprisonment for any civil action or debt or demand in the said schedule of his debts, so delivered to the said commissioner of insolvents for Hamilton County, which said order and judgment of said court is now in full force and virtue and unreversed."

"And the said defendant further avers that afterwards, to-wit, in the term of February in the year 1832, the Commissioner of Insolvents in and for Hamilton County in the State of Ohio, returned the said Joseph Harris to the court of common pleas of said county as a petitioner for the benefit of an act passed by the Legislature of the State of Ohio entitled 'An act for the relief of insolvent debtors,' who at the time of his application was under arrest, and returned to said court a schedule delivered to him by the said Joseph Harris showing the debts by him owing, and the names of his creditors, among which debts was the said judgment mentioned in the said plaintiff's

Page 34 U. S. 333

declaration, and the said Joseph Harris afterwards, in the term of February in the year 1832, appeared in said court of common pleas before the judges thereof and filed his petition in said court praying for the benefit of the act for the relief of insolvent debtors, and such other proceedings were had thereon that the said court at the term last aforesaid ordered and adjudged that the said Joseph Harris be discharged from arrest on account of the debts in said schedule mentioned in pursuance of the statute in such case made and provided, which said order and judgment is now in full force and virtue and unreversed. All which the said defendant is ready to verify, wherefore he prays judgment if the said plaintiffs ought further to have and maintain their aforesaid action thereof against him,"


To this plea the plaintiffs filed a general demurrer in which the defendant joined. The circuit court overruled the demurrer and gave judgment for the defendant, and the plaintiffs sued out this writ of error.

Page 34 U. S. 355

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