UNITED STATES V. BOOTH, 59 U. S. 476 (1855)

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U.S. Supreme Court

United States v. Booth, 59 U.S. 18 How. 18 How. 476 476 (1855)

United States v. Booth

59 U.S. (18 How.) 476


Where the clerk of the supreme court of a state neglects or refuses to make a return to a writ of error issued under the 25th section of the Judiciary Act, this Court will lay a rule upon him to make return on or before the first day of the next term or show cause why such return has not been made in conformity to law.

And where there is another case upon the docket involving the same questions, the Court will direct it to be continued in order that both cases may be argued together.

These two cases will be reported together although in some respects they were dissimilar. In both, however, writs of error had been issued by this court directed to the Supreme Court of Wisconsin. In the first case, viz. The United States v. Booth, the writ was not returned, and Mr. Cushing, Attorney General, filed a copy of the record and moved the Court to docket the case and set it down for argument at the next term. In the other case, viz. Ableman v. Booth, the writ was returned accompanied by a certified copy of the record, and the case stood regularly upon the trial docket.

In the case of United States v. Booth, the motion of the Attorney General was as follows:

"And now the Attorney General comes into Court and says that to the writ of error in the present case to the Supreme Court of the State of Wisconsin, issued by the Chief Justice of the United States, no return has been made, whereupon he moves that an authentic copy of the record of the said Supreme Court of the State of Wisconsin in the case, and of the writ of error, with certificate of other proceedings since had, may be filed and the case entered and proceed to final judgment on the said copies."

The other proceedings mentioned in the above motion were comprised in the following certificates, &c.

1. A petition of the Attorney General reciting the facts stated in the opinion of the court and praying for a writ of error to remove the case from the Supreme Court of Wisconsin to this court.

2. The allowance of the writ on the 21st of April, 1855. On the 5th of September, 1855, John R. Sharpstein, district attorney of the United States, made oath before Judge Miller, judge of the district court, that he delivered the writ of error to Lafayette Kellogg, Esq., Clerk of the Supreme Court of Wisconsin, at his office in Madison on the 30th of May, 1855.

3. The citation to Booth and the service of it by Ableman, the marshal.

4. The following affidavit by Sharpstein:

"I, John R. Sharpstein, attorney of the United States for said

Page 59 U. S. 477

district, do solemnly swear that I have been informed by Lafayette Kellogg, Esq., Clerk of the Supreme Court of the State of Wisconsin, and also by Abram D. Smith, an associate justice of said court, that the said court directed the said clerk to make no return to the writ of error issued out of the Supreme Court of the Unite States, in the above entitled cause, and by this deponent served, according to law and the rules of the said lastmentioned court, and that the said Supreme Court of the State of Wisconsin further directed the said clerk to enter no order upon the journal or records of said court concerning the same, and further deponent says not."


5. A copy of the record.





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