WILSON V. DANIEL, 3 U. S. 401 (1798)

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U.S. Supreme Court

Wilson v. Daniel, 3 U.S. 3 Dall. 401 401 (1798)

Wilson v. Daniel

3 U.S. (3 Dall.) 401


The verdict or judgment does not ascertain the value of the matter in dispute between the parties. To determine this, recurrence must be had to the original controversy -- to the matter in dispute when the action was instituted. The descriptive words of the statute regulating the jurisdiction of the Supreme Court in cases of writs of error and appeals point emphatically to this criterion, and in common understanding the thing demanded, as in the case before the Court, the penalty of a bond, and not the thing found, constitutes the matter in dispute between the parties. The nature of the case must guide the judgment of the Court, and whenever the law makes a rule, the rule must be obeyed.

On the return of the record, it appeared that the district judge had endorsed the following fiat on the petition and assignment of errors, presented by the plaintiff in error:

"Let a writ of error and supersedeas issue agreeably to the prayer of the petition on the petitioner's entering into bond with security in the penalty of $3,600, conditioned as usual in such case. Cyrus Griffin."

A writ of error accordingly issued, but it would seem that only a copy of the writ was transmitted with the record (to which the seal of the circuit court was affixed, though the writ itself was not said to be under the seal of the court), and the copy was signed by "William Marshall, Clerk," who added in the margin the following memorandum in his own handwriting, not subscribed by the judge: "Allowed by Cyrus Griffin, Esq., Judge of the Middle Circuit in the Virginia District." The original citation to the defendant in error was likewise, omitted, and only a copy accompanied the record, with an affidavit subjoined that the deponent, "did on 24 Sept., 1796, deliver to Thomas Daniel, within named, a citation whereof the above is a true copy." There was no certificate of the judge or clerk of the court that the record was returned in obedience to the writ, though at the end of the paper, purporting to be the record, the clerk subjoined the following minute: "Copy. Teste, William Marshall, Clerk." chanrobles.com-red

Page 3 U. S. 402

In February term, 1797, E. Tilghman, for the defendant in error, objected to the return of the writ that it was not said to be issued under the seal of the court; that the seal affixed to the record was not stated to have been affixed by order of the court; that the original writ was not transmitted; that the paper purporting to be a citation, being a mere copy, did not appear from the signature or any other proof to have been signed by the judge, which the act of Congress expressly requires; 1 Vol., s. 22, p. 62, and that there was not even any certificate of the clerk of the court that the entire record had been annexed and transmitted with the copy of the writ of error.

Lee (the Attorney General) and Ingersoll answered that the district judge had in effect allowed the writ of error by directing it to issue when security was given; that the seal being actually affixed, it was unnecessary to state that the writ was under the seal of the court; that the seal implies and authenticates the fact, that the citation had been signed, as well as the writ of error allowed, by the judge, and that the clerk having asserted that the proceedings transmitted were a copy, it must be presumed to be an entire copy of the record unless diminution is alleged.

But the court was clearly of opinion that the verification of the record was defective and that they could not, consistently with the Judicial Act, dispense with a return of the original citation subscribed by the judge himself.

The cause was then, continued upon an agreement between the counsel that the defendant in error might either argue it upon the record in its present state or allege in diminution of the record and issue a certiorari. The latter mode was adopted, and the diminution alleged was that

"There is not certified the judgment of the said circuit court, rendered on inspection of the record of a district court of the Commonwealth of Virginia held in the Town of Dumfries awarding to the said Thomas Daniel his costs against John Hollingsworth, William Merle, and William Miller on the dismission of a certain attachment by them against him sued forth, which record of the said district court is stated in the declaration of the said Thomas Daniel filed in the said circuit court, and is again stated in the replication of the said Thomas Daniel in the said circuit court with an averment that he was ready to verify the same, by a transcript thereof, certified under the hand of a proper officer, to which said replication the said William Wilson in the said circuit court rejoined that there was no such record."

The clerk of the circuit court returned the certiorari with a certificate endorsed

"That there is not remaining on the rolls and records the judgment of the

Page 3 U. S. 403

said circuit court on the inspection of the transcript of the record of the District Court of Dumfries awarding the said Thomas Daniel his costs against John Hollingsworth and others on the dismission of a certain attachment against him by them prosecuted, nor did the said circuit court ever enter up their judgment thereon."

The circumstances, which now became material on the record were as follow:

It appeared by the declaration that an action of debt was brought in the circuit court by Thomas Daniel, a British subject, against William Wilson and others upon a bond dated 11 October, 1791, for the penal sum of $60,000; that the bond had been taken as an indemnity from the defendants below in an attachment brought by them against the plaintiff in a state court, and that the attachment was dismissed by the court and the plaintiffs adjudged to pay the costs. The present plaintiff laid his damages in consequence of the attachment at $20,000.

The sole defendant below, William Wilson (the other defendants being dead or not being arrested on the process) pleaded 1. performance of the condition of the Bond; 2. that no costs had been awarded to the plaintiff below in the attachment suit, nor had any damages been recovered by him against the parties, for suing out the attachment.

The plaintiff below replied 1. that the defendant had not performed the condition of the Bond; 2. that the court did award costs in the attachment suit to the plaintiff below, which he was ready to verify by a transcript of the record; and 3. the plaintiff demurred to so much of the defendant's plea as respects Damages.

The defendant below rejoined, 1. as to the judgment for costs in the attachment suit nul tiel record, and 2. as to the replication upon the question of damages, joinder in demurrer.

The Record then proceeds:

"The parties by their attorneys, being fully heard, it seems to the court that the said second plea of the defendant and the matter therein contained are not sufficient in law to bar the plaintiff from having and maintaining his action against the said defendant. Therefore it is considered that judgment be entered for the plaintiff on his demurrer to that plea."

"And at another day, to-wit, etc., came the partied, etc. And thereupon also came a jury, etc. And now, etc., the jury aforesaid returned into court, and brought in their verdict in these words: 'We of the jury find for the plaintiff the debt in the declaration mentioned to be discharged by the payment of $1,800 damages.'"

"Therefore it is considered by the court that the plaintiff recover against the defendant 60,000 of the value of $200,000, his debt aforesaid, and his costs by him about his suit in this behalf expended. And the said Defendant in mercy, etc. But the judgment is to be discharged by the payment of the said $1,800 and the costs."

At the present term as well as in February Term, 1797, two questions were made and argued, independent of the objection to the form of issuing and returning the writ of error:

1. Whether the judgment below was so defective that a writ of error would not lie on it inasmuch as no judgment was given upon the plea of nul tiel record.

2. Whether the Supreme Court had jurisdiction of the cause, inasmuch as the real and operative judgment of the circuit court was only for $1,800, and the Judicial Act provides that there shall be no removal of a civil action from the circuit court into the Supreme Court unless the matter in dispute exceeds the sum of value of $2,000 Dollars. On the first point no opinion was given by the court at the former argument, but on the second point, CHASE, PATERSON, and CUSHING, JUSTICES, concurred in considering the judgment as a judgment at common law, for the penalty of the bond, and therefore that the Court had jurisdiction. WILSON, JUSTICE, dissented, and IREDELL, JUSTICE (who had presided in the circuit court) declined taking a part in the decision. The second point was, however, reargued at the instance of E. Tilghman, who was answered by Lee and Ingersoll, and the opinion of the Court was given to the following effect. chanrobles.com-red

Page 3 U. S. 404


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