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BARRY V. MERCEIN, 45 U. S. 574 (1846)

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U.S. Supreme Court

Barry v. Mercein, 45 U.S. 4 How. 574 574 (1846)

Barry v. Mercein

45 U.S. (4 How.) 574


After a case has been called, and placed at the foot of the docket, the court cannot take it up, on motion, and assign a day for its argument, when other cases, of great public importance, have already been assigned for what may be the remainder of the term.

The circumstances which led to the interlocutory opinion of the court in this case are sufficiently set forth in the memorial of Mr. Barry, and the opinion of the Court.

The memorial was as follows:

"To their Honors, the Justices of the Supreme Court"

"of the United States of America"

"The memorial of John A. Barry respectfully represents, that he is a British subject, domiciled and resident abroad within the dominions of her Britannic Majesty; that for some considerable time past, he has had upon the docket of this Honorable Court a highly important and most interesting case, on a writ of error to the Circuit Court for the Southern District of New York; that consequently he came over to these United States in November, 1844, to attend to the said case at the last term of this Honorable Court; but the number of the case being 128, he was greatly disappointed in being obliged to return to his home without its having been reached; that he has now again come over to this country for the purpose of meeting the said case, but, owing to an unusual length of passage, did not arrive at Boston until after this Honorable Court had commenced its present session; that it was his intention, and full expectation, to have been before this Honorable Court whenever the said case (No. 72) on the present calendar should be called, but, owing to an attack of bodily indisposition, he was detained in New York until he became apprehensive that he might not be enabled to be present at the call of the said case in its regular order; that he thereupon wrote a letter to W. T. Carroll, Esq., the clerk of this Honorable Court, intimating his said apprehension, in order that, should it be realized, the cause thereof might be communicated to

Page 45 U. S. 575

your Honors, in the hope that, under the circumstances, your Honors would be pleased to permit the case to be passed over without prejudice until your memorialist's arrival in Washington; that he received an answer from the said W. T. Carroll, Esq., acknowledging his receipt of the said letter, but informing your memorialist that, unfortunately, the case had been reached only the day before, when, agreeably to the forty-third rule of court, the said case was placed at the foot of the calendar; that, in the event of its so remaining, your memorialist will, if he shall live, be necessitated to come again -- a third time -- to this country, at the next setting of this Honorable Court, as no probability exists that the case can be reached, in its new position, during the present term."

"Your memorialist, therefore, respectfully prays that, in consideration of the foregoing premises, and further that the case is one in relation to the writ of habeas corpus, in favor of liberty, in proceedings on which courts are accustomed to relax that stringency of technical requirement so strenuously adhered to and insisted on in ordinary formal suits at law, the said forty-third rule of court may not be enforced on the present occasion, but that your memorialist may be heard in the matter at such earlier day as may comport with the convenience of your Honors, or be appointed for the purpose by this Honorable Court."


"Washington, D.C., February 6, 1846"

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