Clerke v. Harwood

¶1`HIS was a writ of Error to the High Court of Appeals, of the State of Mary/and, to remove the pr~eedings in a caute, invojvlng a con1tru~tion ot tile treaty ot peace betWeen the United States and Great Britain, which that Court had de.~ cidcd again{t the title claimed under the Treafy, by reverfing and annulling a previous judgment given in the General Court of the State, in favor of the claim. The only objeaion arifing on the record, was-whet•her a paper money payment of a Brit-. iJh debt into the treafury of Maryland, during the war, by vir-. of a law of the Pcate~ was a bar to the creditor's recovery at this time? And the folemn adjudication in Ware vs. Hylton e~ al. ant. p. 199. having fettled that point, D~1las, forthe Defendant in error, fub~nitted the cale, without argument, to the Uourt, who, in general tern-is, reverted the judgment of the High Court of Ap~ peaIs~and affirmed the judgment of the General Court.

¶2*343It then became a queftion, to which of the State Courts the Mandate íhould be fent, and what cofts íhould be allowed.

¶3E. and W. Tilghman, for the Plaintiff in error,

¶4contended, that the judgment of the Cohrt of Appeals being reverfed, it was to be regarded as if it had never exifted ; arid that, therefore, the mandate muftfiflueto the General Court, whofe judgment was tobe carried into effect. They infifted, alfo, that the cofts in both the Courts of Maryland, and in this Court*íhould be allowed.

¶5Dallas, on the other fide, ftated, that by the 25th. fedtion of the Judicial A£t, the writ of error was to have the fame effedt in this cafe, as if the judgment, or decree, complained of, had been rendered or paffed in a Circuit . Court, and'that the proceeding upon the reverfal was alfo to be the fame, except that after, once being remanded, this Court may proceed to a final de-cifion, and award execution. In the cafe, then, of a reverfal of a Judgment of the Circuit Court, the 24th, fcdtion of the Judicial Act provides, that on reveríais in the Supreme Court, they ihall proceed to render fuch judgment, or pafs fuch Decree, as the Inferior Court íhould have done; and ihall fend a fpe-cial mandate to the Circuit Court to award execution thereupon. . If, therefore, the Decree of a Circuit, reverfing the Decree of a Diftrict, Cóurt, were reverfed, the mandate would be fent to the'former, and not to the latter, and by a.parity of reafoning in the prefent inftance, the writ íhould be fent to the Court of Appeals, and not to the General Court. The con-ftrüction feems to be ftrengthened by that part of the 25th. fection, which contemplates, that the caufe might be remanded to the State Court more than once;—as, it is not probable, that the Court whofe judgment is affirmed, would require'a fecond order; and, it is furely proper, that.the Court, whofe judgrrien.t is ieveifed, íhould be apprifed of thé event. As to cofts, Dallas contended, that at leaft the cofts of the Court, whofe judgment was in favor of the Defendant in Error, ought not to be charged againft him.