UNITED ,STATES V. GRISWOLD.
lJNITEP STATES .""
(Di3frict (Jourt,D; Orbgon. February 24,·1880.)
1. ARREs'r mCIVIL A9'.floNS-RIGHT TO .DISOHARGE.
In the absence of any'statute directly authorl1hg the discharge of' a ant in arrest who is not:chargedin execution within a certain time after judg" ment, the court ,may, assume that his discharge contemplated by law, and should be granted, unless the plaintiff, within a reasonable time, should charge him in execution. . ,
2. SAME-RULE OF CoMMON LAW.
Where it appearS that the rule of the common law is that if plailltiff obtained judgment against" a defendant prisoner," alld did" not charge such defendant so remaining in prison in execution of the judgment within two terms next after obtaining surh judgment," reckoning the term wherein judg., ment was obtained as one, the defendant may obtain his discharie" it will be assumed that this rule applies to the case, and supplies the omission in thll statute of the state. .
Addison O. Gibbs, for plaintiff. William W. Paige and George H. Durham, for defendant. DEADY, D. J. On May 27, 1877, the United States, by B. F. Dowell, commenced an action against the defendant, under sections 3490-94 of the Revised Statutes, for certain penalties and damages on account of the violation of section 5438, in knowingly making, presenting, and obtaining payment from the treasury of the United States, in January, 1874, of certain false claims, commonly called the Jesse Robinson claims, and purporting to be for expenses incurred by C. S. Drew, quartennaster of the Oregon militia, in fitting out and maintaining the Jesse Walker expedition to protect the immigrants on the southern Oregon immigrant trail, between the Humboldt river and the southern boundary 01 the state, between August 3 and November 6, 1854.
On June .2d the district judge, under section 3402 of the Revised Statutes, and upon the co.mplaint in the action, verified by the oath of said Dowell, made an order for the arrest of the defendant, and fixed his bail at the sum of $10,000, to be given in the manner and with the effect provided in sections 108-9 of the Oregon Civil Code regulating the giving of bail upon arrest in civil actions, and on June 4th the defendant was arested and gave bail accordingly. Afterwards the d.efendant moved to strike the complaint from the files, because it was not signed by the district attorney nor anyone authorized to represent the United States, and to be discharged from arrest because there was no affidavit, other than the complaint filed before the allowance of the same, nor undertaking filed before the arrest was made j and on October 9th said motion was denied. See 5 Sawy.25. Between April 23 and May 20, 1878, the case was tried with a jury, who were discharged without giving a verdict, three of them being for the defendant. A second trial resulted, ()n December in a. verdict for the plaintiff in the sum of which, a judgment accordingly. See pubon January 11, 1879, there was lished 6pinion of that date on denying motion for new trial. Afterwards the defendant was surrendered by his bail, and on March 4th his counsel moved for his discharge from custody, because no execution had been issued on the judgment against the person. On the following day, after argument, the motion was denied,it appearing that an execution had been issued against property and not yet returned, citing Norman v. Manciette, 1 Sawy. 487, in which the court beld that the plaintiff, in a judgment where the defendant is liable to arrest, has, at least, until "the return of the exeaution against property, to take out execution against the body, and that, in the mean time, if the defendant has been arrested provisionally, he must remain in the custody of the sheriff or his bail, or satisfy the judgment." On April 1st, a.fter the return of the execution against property unsatisfied, the motion for the defendant's discharge was renewed, but before it was decided, namely, on April 22d, the judgment against him was reversed on error in the circuit court, because of an instruction given to the jury upon the trial, to the effect that the defendant was chargeable with knowledge of the fraudulent character of the claims in question obtained by his agents thereabout in the course of their agency, but n9t communicated to him,-the circuit and district judges concurring therein,-whereupon the motion was abandoned.
UNITED STATES V. GRISWOLD.
On a third trial, on July 28th, a verdict was found for the plaintiff in the same amount as before, upon which, on July 30th, ment was given accordingly. On November 26, 1879, the motion for discharge from the provisional arrest was renewed upon the ground that an execution against property had been issued upon the judgment.and returned nulla and was finally argued and submitted on February 10th. On the argunient of the motion, a point was made by one Of the counselfol' the defendant that this arrest was illegal and void, because it was made on the verified complaint'in the action, lind'not an' davit merely, and also without a previous tindertakirigonthe part of the plaintiff for costs and damages, as provided'in se'ation 107 'of the Oregon Civil Code in the case of an action between private persons. Butthispoiht not being stated: in this motion,andhaving been distinctly made and passed upon: in the motion before juagment '5 for the discharge of the defendant;: as appears 'in the opinion Sawy., supra, will not now'be further considered. . The only questiona.Haingupon this motion isvvhere the dt:\fehdant in a civil action is arrested before judgment, artd remains in until 'judgment is given therein, or is thereupon surrendered by his bail, when may he have a supersedeas and discharge from unless he is charged in execution thereon? At common law the preliminary arrest in chil actions was made upon a capias ad respondendum, the purpose of which, as its' name implies, was only to secure the appearance of the defendant in court to answer the plaintiff on the return-day of the writ, and the/party either remained in the custody ofthe until that time, or gave him special bail for his appearance. Upon the return-day the defendant appeared by putting in bail, as it was called, to the action, failing which the bail for his appearance was forfeited. The bail to the action was an underta;king that the defendant would satisfy any judgment obtained against him, or render himself a prisoner upon the execution thereon. 8 Bl. Comm. 290,291. . A judgment at common law for the payment of money might be ' enforced by an execution against the body, called a capias ad satisfaciendum, in all cases in which the defendant might have been' arrested in the first instance upon a capias ad respondendum, and the purpose and effe&t of it was to keep the body of the debtor in close custody until the judgment was satisfied. 8 Bl. Comm.414, 415.
, The arrest in this case, as has been stated,was ma.de under an act of congress, but under section 914 of the Revised Statutes the subsequent proceedings thereon are governed by the law of the state. Indeed, the arrest itself might have been ,made under section 106 of the Oregon Civil Code, which aut40rizes an lltrrest in civil .actions for a penalty or a fraud. Sections lOS and 109 of suchCocle provide that the defendant shall be discharged from the arrest in a civil action "at any time before execution," either upon giving bail or making a deposit in lieu thereof, a.nd that the undertaking of the bail must be "to the effect that the,defendant shall at all.times render himself amena.ble to the process of the court during the pendency of the action, and to snch as maybe issued to enforce the judgment therein. From this it appears that the bail given upon the provisional arrest nnder the .oade is not merely the special bail of '. the common law given to the sheriff 'for the appearance of the defendant in the action, but it is also the equivalent in operation and effect of the therein undercommon-law ball to the action, by which took that the defendant would, satisfy any judgment that might be given against him, or render himself in execution thereof upo;n process against his body to enforce the same, whenever.lawfully required. At common law the plaintiff might have an ;execution against the have one against body in the first instance, but could not the defendant's property, except in special cases, as where the defendant escaped, died, or wall discharged under theillsolvent act without satisfying the judgment. Ordinarily, the taking of the body in execution was considered a discharge judgment, and a satisfaction of the debt. 3 Bl. Comm. 415; Jackson v. Benedict, 18 Johns. 535; Sunderland v. Loder, 5 Wend. 59; ,Wakeman v. Lyon, 9 Wend. 242; Chapman v. Hatt, 11 Wend. 423; Poucher v. Holly, ld. 185; Beaty v. Beaty, 2 Johns. Ch.43l. TheOregon Civil Code, §§ 272, 276, gives the plaintiff an execution against the pody in all cases where the defendant might have been arrested before judgment, but only "after the return of the against property in whole or in part," and by section 277 it is provided that ,a. person arrested on exec.ution shall be imprisoned until it is satisfied, or he is legally discharged. By title 2 of chapter 28 of Mis. Law!>, provision is made for the discharge of persons confined upon execution, upon the surrender of their property; bat is also thereinpro:vided (Or. Laws, §21,p. 628) that the judg-
UNlTEi) STATES V. GRISWOLD.
ment, notwithstanding such imprisonment and discharge, may be thereafter enforced against the property of the defendant. At common law an execution, either against the body or the prop-' and a. day from the entry' erty, might issue, of course, mthin a of the judgment. 3 Bl. Comm. 421; 1 Arch. Pro 281; Atty. Pro K. B. 278,401; "'':estminster, 2; 13 Ed.!. c. 45; 3 Bac. 40'1. By the law of this state (Or. Civ. Code, 271, 292) an may issue, of course, at any time within five years after 'the entry of judgment; but. as has been stated, the execution against -the body cannot issue until one against the property has been returned-unsatisfied. ld. § 276.' Prom this it appears that at common law the plaintiff might take the body of thedefendaIit on execution, of course, within a year and a day from the entry of judgment, and may do so under the law of this state within five years of such entry. But there is no statute of this state which; prescribes, directly or in effect, within what time, after judgment, a defendant in arrest is entitled to be discharged, unless taken upon execution issued thereon. By the New York Code, § 288, it.is provided that where the defendant is "in actual custody under an order of arrest," and the plaintiff neglects to issue execution against the person of -the defendant for three months after the entry of judgment, the defendant may be discharged from custody, unless good cause to the contrary· be shown. As to what was the practice at common law ·upon this point, counsel has not cited any authority, and I have been inclined to the opinion that, in the -absence of any positive rule -or practice to the contrary, the defendant is not entitled to be dischll.l'gedtso:long as the plaintiff is entitled to charge him in execution, which'is five years from the entry of the judgment, according to the statute of this state, and accotding to the common law a year and a day. Upon tbis theory of the law counsel for the plaintiff contend that the defendant cannot be discharged from this arresnor five years from the judgment, and upon the view most favorable to the defendant he would not be entitled to sucb discharge until the expiration of a year from that date. . But the law of this state having pl'Ovided that ajudgmentdebtorin custody upon an execution maybe finally from imprisonment upon a surrender of his property subject to execution, and as such discharge cannot take place while the defendant is in custody upon tbe arrest before judgment,it maybe said that the purpose and the operation of tbe law providing for the discharge of a judgment debtor upon the surrender of his property would be hindered and
denied if the plaintiff;copld compel such debtor to remain in custody upon the arrest before judgment until ha saw proper to take him on execution. . Further, the object of the arrest before judgment, being merely to hold the person of the defendant so that if he does not satisfy ,any judgment ,which may be obtained against him, his body may be taken upon an execution to enforce the same, it may be said that if the right to take the body of the the plaintiff does not defendant in execution within a reasonable time, the defendant ought to have a remedy by a supersedeas and discharge. And, upon further reflection, thei!le considerations have the effect to my mind to the conclusion that, in the absence' of anystatu.te directly izing the discQlltrge ofa defendant in arrest, who is not charged· in execution within a certain time after judgment, the court might say t4at, his 'discharge was conttlmplfj.ted by the law, and,should be granted,; unless the plaintiff, within what might be araasonable time, under the circumstances, should charge him in execu.' tion. But, upon further examination of the matter, I find accoJdirig to ,the first volume of the Attomey's Practice in the Court King's that Bench, 366, a work pUblished in 17.59, the rule in that if theplaiI;ltiff obtaiped judgment against "a defendant prisoner" and ,did "not charge such defenq.ant so remaining in prison, in,execution, of the judgment,. within two terms next after obtaininglilUch judgment,"reqkoning t4e. ,term wherein, the ju4gmentwas as one,th.e defendant.:t:n;l>y ,optain his discharge; citing in. the as authorities, 2 Strange, 943, 1153, 1215. I do, that this is the rule of the common law, it applie!l tojhe case supplies the omission in the of the sta,te. It authorizes, the discharge in case the plaintiff neglects to charge him in execution, and prescribes the time beyond which he is to it., , . The judgment in thts was .given:atthe July tel·m., and this is the November term of the saine year, and the second thereafter' within the This term expires on- the day hefor.ethe. first Mou.qa.y in, March next, when an.Qther terr;o.. begin,s., ·If the plaintiff does nOt charge the defendant in before that, time b,emay then for. hiB disqba,rge, it· will. he granted C9ur.8e. motion) however, is denied. .
:N. Y. & BALT. COFFEl!: POL. CO. V.
N. "Y. OOFFEE POL. 00.
BALTIMORE COFFEE POLISHING CO. COFFEE POLISHING CO.
(Circuit Court, E. D. New York. 1882)
OF WITNESS-COMMISSION TO TAKE TESTIMONY.
An order to show cause why a witness should not be held in contempt, a,sked for to lay a foundation for a motion to issue a commission to take the testimony, refused on the ground that the order to attach would be useless, and on subsequent motion an order was made to issue the commission.
Order for commission to take testimony:. Bichards If Heald and Henr,y R Starbuck, for complainant. Goodrich, Deedy If Platt, for defendant. Appeal from taxation of oosts under the decision in 'the above (9 FED. REP. 578,) bavingqeep that,decision was so far IIlodifiedas to allow no costs to the plaiIitiff on the demurrer. The defendant having failed to answer'withirt' the ten days given, plaintiff's solicitor ltllplied for an order to be serv:ed onthe president of the cotfipariy defendant, should not be punished as for a contempt ih and cited Coveny v. Athill, Lancaster V. Biro. 489, stating also'in open court that the 8.(;le' teast)D'for' the order was to lay a foundatiob'for a motion to issue sio11 to take testimohy whfCl(was prayed: for in the bilI."tJpon' this the order to show cause wastefusedon the grourid'thattb'e'oraei fO attach the defendant would be useless, it would ',not' tend to the bill' of establish the truth' of the allegations Thereafter 80licitorfor complainant applied onn9tice foi'a commisissue had siari to issue,and defendant"oppo'sed on the groutid not been joined hi The objecHoh wah overrul'ed, al;ldan to the oftpe order 'made for a named in the bill, in to'H13s to be attached to tiieco:iri.'mi'asion. ' , ',