AMIS V. SMITH, 41 U. S. 303 (1842)

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U.S. Supreme Court

Amis v. Smith, 41 U.S. 16 Pet. 303 303 (1842)

Amis v. Smith

41 U.S. (16 Pet.) 303


Mississippi. Action on a promissory note against sundry persons surviving partners of the unincorporated Real Estate Bank of Columbus, Mississippi, founded on their certificate of deposit. All the defendants except Wright joined in the plea of nonassumpsit. Wright afterwards pleaded nonassumpsit separately. At the trial, all the defendants except Wright withdrew their plea and permitted judgment to go by default against them, and the plaintiff then discontinued the suit against Wright. Execution was issued and was levied on the property of Amis, who gave to the marshal a forthcoming bond with security, and the bond being forfeited, it was so returned by the marshal, which, by the statute of Mississippi, gives the bond the force and effect of a judgment against the obligor and his surety. At the succeeding term, Amis moved the court to quash the bond, which motion was overruled. The plaintiff in error claimed, 1. that the circuit court erred in permitting the plaintiff below to discontinue the suit against Wright and in rendering judgment against the other defendants; 2. the fieri facias was illegal because it included interest, not authorized by the judgment; 3. the overruling the motion to quash the forthcoming bond was a final judgment which ought to be reversed.

If the contract be joint and several and the defendants sever in their pleas, whatever may have been the doubts and conflicting opinions of former times as to the effect of a nolle prosequi in such a case, it has never been held that a simple discontinuance of a suit amounts to a retraxit, or that it in any manner worked a bar to the repetition of the plaintiff's action.

By a statute of Mississippi, all promises, contracts, and liabilities of co-partners are to be deemed and adjudged joint and several, and in all suits on contracts in writing made by two or more persons, it is lawful to declare against any one or more of them. This is such a severance of the contract as puts it in the power of the plaintiff to hold any portion of them jointly, and the others severally bound by the contract, and there is no obligation on the part of the plaintiff to put the defendants in such condition, by their pleadings, as to compel each to contribute his portion for the benefit of the others. Cited, Minor v. Mechanics' Bank of Alexandria, 1 Pet. 46.

On a joint and several bond, suit must be brought against all the obligors jointly or against each one severally, because each is liable for the whole, but a joint suit cannot be maintained against a part, omitting the rest. Whatever may be the defects or illegality of the final process, no error can be assigned in the Supreme Court on a writ of error for that cause. The remedy, according to the modern practice, is by motion in the court below to quash the execution. If the question of the right to include the interest on the judgment in the execution were properly before the court, no reason could be seen why interest in a judgment, which is secured by positive law, is not as much a part of the judgment as if expressed in it.

The provisions of the third section of the Act of Congress of 19 May, 1828, adopted the forthcoming bond in Mississippi as a part of the final process of that state at the time of the passage of the act. "A final process" is understood by the court to be all chanrobles.com-red

Page 41 U. S. 304

the writs of execution then in use in the state courts of Mississippi which were properly applicable to the courts of the United States, and the phrase "the proceedings thereupon" is understood to mean the exercise of all the duties of the ministerial officers of the state prescribed by the laws of the state for the purpose of obtaining the fruits of judgments -- among those are the provisions of the laws relating to forthcoming bonds, which must be regarded as part of the final process.

The proceeding which produced the forthcoming bond was purely ministerial; the judicial mind was in no way employed in its production. It does not then possess the attributes of a judgment, and ought therefore to be treated in this Court as final process, or at least as part of the final process.

As far as the decisions of the state courts of Mississippi settle rules of property, they will be properly respected by the Supreme Court. But when the effect of a state decision is only to regulate the practice of courts and to determine what shall be a judgment, the Supreme Court cannot consider itself bound by such decisions upon the ground that the laws upon which they are made are local in their character.

It is the duty of the Supreme Court to preserve the supremacy of the laws of the United States, which it cannot do without disregarding all state laws and state decisions which conflict with the laws of the United States.

No rule, under the third section of the act of 1828, which authorizes the courts of the United States to alter final process so far as to conform it to any changes which may be adopted by state legislation and state adjudications made by a district Judge, will be recognized by the Supreme Court as binding except those made by the district courts exercising circuit court powers.

The statute of Mississippi taking away the right to a writ of error in the case of a forthcoming bond forfeited can have no influence whatever in regulating writs of error to the circuit courts of the United States. A rule of court adopting the statute as a rule of practice would therefore be void.

Regarding the forthcoming bond as part of the process of execution, a refusal to quash the bond is not a judgment of the court, and much less a final judgment, and therefore no writ of error lies in such a case.

In an action on a certificate of deposit, instituted on 7 November 1839, by the defendant in error, Nathan Smith, in the District Court of the United States for the Northern District of Mississippi against the plaintiff in error, with others, who were the surviving partners in the Real Estate Bank of Columbus, Mississippi, the plaintiff obtained a judgment by default against all the defendants except Daniel W. Wright. who had been sued with them as one of the partners. All the defendants except Wright had entered a plea of nonassumpsit, which they afterwards, at the trial, withdrew, on which a judgment was entered chanrobles.com-red

Page 41 U. S. 305

by nil dicit for $2,584.74. Wright pleaded nonassumpsit separately, and the plaintiff then discontinued the suit against Wright.

The plaintiff issued an execution, which was levied on personal property belonging to John D. Amis, who thereupon executed a forthcoming bond, with Samuel F. Butterworth as surety, which bond being duly forfeited, operated, under the laws of Mississippi, as a judgment against the obligors in the bond, on which execution might be issued forthwith. On 14 December, 1840, John D. Amis and Samuel Butterworth moved the court to quash the forthcoming bond 1. because it increases the costs, not warranted by law, the execution having included interest on the judgment; 2. that there is no authority for taking the said bond, or any such bond, and the bond creates a judgment against the obligors and precludes them from a defense and a trial by jury secured by the Constitution of the United States. The court overruled the motion, and the defendant, John D. Amis, prosecuted this writ of error. chanrobles.com-red

Page 41 U. S. 309


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