Morsell v. Hall, 54 U.S. 212 (1851)
U.S. Supreme CourtMorsell v. Hall, 54 U.S. 13 How. 212 212 (1851)
Morsell v. Hall
54 U.S. (13 How.) 212
In Maryland, it is correct to take a recognizance of bail before two justices of the peace.
Where a scire facias was issued against special bail, who pleaded two pleas, to the first of which the plaintiff took issue, and demurred to the second, and the cause went to trial upon that state of the pleadings without a joinder in demurrer, and the court gave a general judgment for the plaintiff, this was not error.
The refusal or omission to join in demurrer was a waiver of the plea demurred to.
In this case, if the plea had been before the court, it was bad because, being a plea that the note was paid before the original judgment, it called upon the party to prove a second time what had been once settled by a judgment. The omission of the court to render a judgment upon the plea could not be assigned as error.
A judgment of a court upon a motion to enter an exoneretur of bail is not the proper subject of a writ of error.
The facts were these,
In 1843, Henry A. Hall, a citizen of Maryland, brought a suit in the Circuit Court of the United States for Maryland against William Smith, a citizen of the State of Mississippi. James S. Morsell was one of two persons who became jointly and severally, special bail, and the recognizance of bail was taken before two justices of the peace for Calvert County.
In April, 1847, Hall obtained a judgment in consequence of an opinion given by this Court at the preceding term, which is reported in 46 U. S. 5 How. 96.
In May, 1847, he sued out a writ of capias ad satisfaciendum against Smith, which was returned "non est."
In November, 1847, he issued a scire facias against Morsell.
In April, 1848, Morsell appeared and filed two pleas, viz., 1. nul tiel record. This plea was based upon the fact that the recognizance of bail was taken before two justices of the peace. In the argument before this Court, this objection was not urged, but as the opinion of the circuit court was thus established, it is proper that a record of it should be made. The opinion was short and may be inserted, viz.:
"This mode of taking bail conforms to the long established practice of this Court. An act of assembly of Maryland passed
in 1715, c. 28, s. 2, authorized this mode of taking bail in suits in the then provincial court, which, like this court, had jurisdiction coextensive with the state. This Court adopted the practice and has always since acted upon it."
"The written rule, No. 62, adopted in 1802, was not intended to alter the previous practice of this court, and has never been so construed. It is merely intended to confer the power upon other state officers also, so as to increase the facilities of giving bail where the defendant resided at a distance from the place of holding the court, for upon searching the records, we find recognizances of bail taken soon after the adoption of the rule of 1802, before two justices of the peace of the state, in the same manner with the recognizance now before the court. A precedent has been produced as far back as 1812, and a more careful search would probably show precedents still earlier. The same practice has continued without interruption ever since, and indeed any other rule would be oppressive to citizens of the state who reside at a distance from the place of holding the court, especially as they would most commonly be obliged to bring their bail with them. In the case before us, the recognizance of bail having been taken and sanctioned according to the established rules and practice of this court, the judgment upon the plea of nul tiel record must be for the plaintiff."
"2. That the promissory note filed as the cause of bail in the action against Smith was paid before the judgment was obtained against Smith."
To the first of these pleas Hall took issue, and the judgment of the court was as is above recorded.
To the second plea he demurred, and instead of joining in demurrer, Morsell took no notice of it, but the judgment of the court was for the plaintiff generally. A motion was made to enter an exoneretur on the bill-piece, which was overruled.
A writ of error brought the case up to this Court.