Insurance Co. of Valley of Virginia v. Mordecai,
62 U.S. 195 (1858)

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U.S. Supreme Court

Insurance Co. of Valley of Virginia v. Mordecai, 62 U.S. 21 How. 195 195 (1858)

Insurance Co. of the Valley of Virginia v. Mordecai

62 U.S. (21 How.) 195


A writ of error must be made returnable to the first day of the term, which is now the first Monday in December. If made returnable to any subsequent day, it is erroneous, and will be dismissed on motion. It cannot be amended.

This was an action of debt brought by Mordecai, a citizen of South Carolina, upon a judgment which he had obtained against the insurance company in the Circuit Court of the United States for the District of South Carolina. A judgment was given also for Mordecai in the Circuit Court of Virginia, from which the insurance company sued out a writ of error in October, 1858, which was made returnable to this Court on the "second Monday in January next," being the second Monday in January, 1859

Mr. Phillips moved to dismiss the writ of error on the ground that the writ was not made returnable according to law, and in support of the motion gave the following reasons:

Page 62 U. S. 196

The English rules with regard to the return day of a writ of error are:

In the King's Bench it is returnable ubicumque &c., on the first or last general return of the term.

In the Exchequer Chamber it is returnable before the justices of the Common Bench &c., on a particular return day.

In the House of Lords, when the Parliament is sitting, the writ is made returnable before the King in his present Parliament, immediate. After a prorogation, the writ is returnable at the next session, or after a dissolution, at the next Parliament, specifying the day when it is to be holden.

By the act of 24th September, 1789, the court was directed to hold two sessions, the one commencing the first Monday in February, and the other, first Monday in August. The sessions of the court were subsequently changed by statute to be the second Monday in January, and then to the second Monday in December.

While the statute gives the commencement of a term, it does not regulate its duration. The court may sit several months or one month. If, therefore, a writ of error is not made returnable to the first day of the session, it may so happen that the record would be sent up on a day when the court is not in session.

It is true that the acts of Congress do not determine the day of return; this was left to be determined by the court under the power given to regulate its process.

Under the Act of the 3d May, 1792, it was made the duty of the clerk of this Court, with the approval of two of the judges, to prepare the form of a writ of error. This was done, and the writ then made out undoubtedly made it returnable to the first Monday of the Court. The clerk informs me that at each succeeding change of the terms, new blanks have been prepared in which the return day was stated to be the first of the term. Not only is the act silent as to the day of the return, but it is equally so as to the term. Yet this Court has in two cases dismissed a writ of error when a term had intervened. Blair v. Miller, 4 Dall. 21

While no rule of the court specifically declares that the writ

Page 62 U. S. 197

shall be made returnable to the first day of the term, the 43d rule, adopted in 1835, declares that when the judgment or decree is rendered thirty days before the term, the cause shall be docketed and the record filed within the first six days of the term. This is wholly inconsistent with the idea that a writ of error on such a judgment could be made returnable at a subsequent period.

AMENDMENT -- At common law, writs of error were not amendable. 1 Arch. Drac. 214. This was afterwards regulated by stat. of 1 Geo. I.

The 32d section of the Judiciary Act, though writs of error are not named, may be understood to confer a similar authority.

It may be, therefore, that leave to amend will be granted when there is anything to amend by. This was the case in 4 U. S. 4 Dall. 12.

In this case, there is nothing to amend by.

Page 62 U. S. 199

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