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
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
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.
Page 41 U. S. 309
McKINLEY, JUSTICE, delivered the opinion of the Court.
Smith brought an action of assumpsit against Amis and others,
surviving partners of the Real Estate Banking Company, of Columbus,
Mississippi, founded upon their certificate of deposit. All the
defendants joined in a plea of
nonassumpsit, and Wright,
one of them, afterwards pleaded the same plea separately. At the
trial, all the defendants except Wright withdrew their plea and
permitted judgment to go against them by
nil dicit, for
the sum of $2,584.74, and the plaintiff then discontinued the
suit
Page 41 U. S. 310
against Wright. Upon the judgment, execution issued and was
levied by the marshal on the property of Amis, who, in conformity
with a statute of Mississippi, entered into bond, with security
conditioned for the forthcoming of the property on the day fixed
for its sale. Amis failed to deliver the property according to the
condition of the bond to the marshal, who thereupon made return
that it was forfeited, which, by the statute, gave it the force and
effect of a judgment. Howard & Hutchinson Stat. Laws of Miss.
653. Amis, at the next term, moved the court to quash the bond,
which motion was overruled, and thereupon he prosecuted this
writ.
To reverse the judgment, he relies on these grounds: 1. the
court erred in permitting the plaintiff 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. overruling the
motion to quash the forthcoming bond was a final judgment by the
court, which ought to be reversed.
Whether a discontinuance of the suit can be entered against one
of several defendants in a case arising on contract depends upon
the character of the contract and the state of the pleadings
between the parties. 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
effect of a
nolle prosequi in such a case, it has never
been held that a simple discontinuance of a suit amounted 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 founded on
promises, agreements, or contracts in writing by two or more
persons as co-partners, signed by one or more of them or by any
person as agent in their behalf, it shall be lawful to declare
against any one or more of them. Howard & Hutchinson Stat. Laws
of Miss. 595. 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 for the contract. And there is no
obligation on his part to put them in such condition by his
pleadings as to
Page 41 U. S. 311
compel each to contribute his portion for the benefit of the
others. This reduces the inquiry to this simple question -- is the
discontinuance in this case authorized by law?
In the case of
Minor v. Mechanics' Bank of Alexandria,
a suit was brought on the office bond of the cashier of the bank
against him and his sureties. The bond was joint and several, and
the defendants pleaded jointly to the action, and as in this case,
the cashier afterwards pleaded severally, whereupon judgment was
rendered against the sureties, and afterwards the plaintiff entered
a
nolle prosequi against the other defendant. This Court
sustained this proceeding and held that it did not affect the
judgment against the sureties.
26
U. S. 1 Pet. 46. That case, we think, is decisive of the
first point made in this. 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. There is
therefore no analogy between the right of action and the right to
enter a
nolle prosequi against one, as was done in that
case. In this case, the plaintiff had a legal right to sue any
number of the joint and several promisors and to omit the others,
and therefore there is a perfect analogy between the right of
action and the right to discontinue the action against one after
judgment against the others. Thus far the propriety of this
judgment is undoubted.
The second point involves a question not cognizable in this
Court. Whatever may be the defects or illegality of the final
process, no error can be assigned here for that cause. The remedy,
according to modern practice, is by motion to the court below to
quash the execution. If, however, the question were properly before
the Court, we can see no good reason why interest upon a judgment
which is secured by positive law is not as much a part of the
judgment as if expressed in it. The legislature said, "all
judgments shall bear interest at the rate of eight percent." Can
the judgment be satisfied without paying the interest? It is the
practice in Mississippi and several other states to include no
interest in the judgment except what is then due, but to leave it
to the collecting officer to calculate the amount of interest
according to law when he settles with the defendant.
Page 41 U. S. 312
The remaining objection will now be examined. If an execution
had issued upon the bond improperly, that might have been quashed
on motion of the defendant. This leads us to the consideration of
the grounds assumed by the counsel of the defendant.
By a statute of Mississippi it is enacted that, "no writ of
error shall be granted in any case where a forthcoming bond shall
have been given and forfeited." Howard & Hutchinson, Stat. Laws
of Miss. 541, and the district judge has, it is said, adopted this
provision of the statute by rule of court. This being the local law
of Mississippi, it is contended that this Court is bound by it, and
by the expositions given to it by the supreme court of that state,
and many decisions of that court have been referred to. In the case
of
United States Bank v. Patton, 5 How. 200, it is held
that a forthcoming bond forfeited is an extinguishment of the
original judgment, and that a writ of error will not lie to it, and
the same doctrine was held in
Sanders v. McDowell, 4
id. 9. If these doctrines are to prevail, the act of
Congress authorizing a writ of error on final judgment would become
a dead letter, and the laws of Mississippi on this subject become
the supreme law in that state. If the forthcoming bond is
applicable at all to the proceedings of the courts of the United
States, it must be in the character of final process.
By the third section of the Act of Congress of 19 May 1828, it
is enacted
"That writs of execution and other final process issued on
judgments and decrees rendered in any of the courts of the United
States, and the proceedings thereupon, shall be the same, except
their style, in each state respectively, as are now used in the
courts of such state, saving to the courts of the United States in
the states in which there are not courts of equity, with the
ordinary equity jurisdiction, the power of prescribing the mode of
executing their decrees in equity by rules of court, provided
however that it shall be in the power of the courts, if they see
fit, in their discretion, by rules of court, so far to alter final
process in said courts as to conform the same to any change that
may be adopted by the Legislature of the several states for the
state courts."
4 Story's Laws United States 2121.
We think this section of the act of 1828 adopted the forthcoming
bond in Mississippi as part of the final process of that
Page 41 U. S. 313
state at the passage of the act. And we understand by the phrase
"final process" all 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 we understand by the phrase "the
proceedings thereupon" to mean the exercise of all the duties of
the ministerial officers of the states prescribed by the laws of
the state for the purpose of obtaining the fruits of judgments. And
among these duties is to be found one, prescribed to the sheriff,
directing him to restore personal property levied on by him to the
defendant upon his executing a forthcoming bond according to law,
and the further duty to return it to the court forfeited if the
defendant fail to deliver the property on the day of sale according
to the condition of the bond. These are certainly proceedings upon
an execution, and therefore the forthcoming bond must be regarded
as part of the final process. It aids materially in securing the
payment of the money to satisfy the judgment, and it is part of the
process by which the plaintiff is enabled to obtain the payment of
the money secured to him by the judgment.
But is this forthcoming bond a judgment as well as process? The
statute declares that it shall have the force and effect of a
judgment, simply, that an execution may issue upon it against the
surety as well as the principal, and for all the costs incurred
after the judgment. The same effect would have been produced if the
statute had directed execution to issue upon the forthcoming bond
without giving it the force and effect of a judgment. The
proceeding which produced this 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. With all due respect for the judicial decisions
of state courts, we cannot concede to those of Mississippi all that
is claimed for them in this case. So far as they settle rules of
property, they will be properly respected by this 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, and the legal
effect of that or any other judgment, this Court cannot consider
itself bound by such decisions upon the ground that the laws upon
which they are made are local in their character.
Page 41 U. S. 314
It is the duty of this Court, by its decisions, 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.
In exercising the power conferred upon the circuit courts of the
United States by the third section of the act of 1828, authorizing
them to alter final process so far as to conform it to any change
which may be adopted by the legislatures of the respective states
for the state courts, there is the same danger to be apprehended as
from state legislation and state adjudications on the same subject.
And therefore no rule ought to be made without the concurrence of
the circuit judge. No rule made by a district judge will therefore
be recognized by this Court as binding except those made by
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 is it a final judgment, and therefore no writ
of error lies in such a case.
31 U. S. 6 Pet.
648. But in this case, the writ of error is not to the supposed
judgment in refusing to quash the forthcoming bond, but to the
principal judgment. It has been sued out and prosecuted by one of
several joint defendants, and without asking that the other
defendants should be summoned and served; the defendant in error
has, however, appeared and defended the suit, and thereby waived
the irregularity. But one error has been assigned to the judgment
of the court, the other two apply to the final process. The
judgment of the court below must therefore be affirmed for the
reasons here stated.
Judgment affirmed.
