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NATHANIEL COX, NATHANIEL AND JAMES DICK, PLAINTIFFS IN ERROR v. THE UNITED STATES

January 1, 1832

NATHANIEL COX, NATHANIEL AND JAMES DICK, PLAINTIFFS IN ERROR
v.
THE UNITED STATES, DEFENDANTS IN ERROR.



ERROR to the district court of the United States, for the eastern district of Louisiana.

On the 19th of October 1825, the district attorney of the United States filed, in the district court of the United States for the district of Louisiana, the following petition, and a copy of a bond, on which the case of action stated in the petition was founded.

The petition of the United States, by their attorney, prosecuting within and for said district, respectfully states, that Joseph H. Hawkins, late of New Orleans, nevy agent of the United States, now deceased, John Dick, late of New Orleans, now deceased, and Nathaniel Cox, of the same place, on the 10th day of March in the year of our Lord 1821, were indebted to the United States in the sum of twenty thousand dollars, for the amount of their obligation in writing, sealed with their seals, for the said sum, bearing date the said day and year, and payable, jointly and severally, by them, their heirs, executors and administrators; as will appear by a certified copy thereof hereunto annexed. To which said obligation a condition was annexed, wherein it was provided, that if the said Joseph H. Hawkins should regularly account, when thereunto required, for all public moneys that might be received by him, from time to time, and for all public property committed to his care, with such person or persons, officer or officers of the general government of the United States as should be duly authorised to settle and adjust his accounts; and should moreover pay over, as he might be directed, any sum or sums that might be found due to the United States upon any such settlement or settlements; and should also faithfully discharge, in every respect, the trust reposed in him, then the said obligation should be void, else it should remain in force.

And the United States further state, that the said Joseph H. Hawkins did not, in his lifetime, regularly account, as aforesaid, for all public moneys received by him, from time to time, and for all public property committed to his care; and did not pay over, as aforesaid, any sum or sums of money due to the United States as aforesaid; and did not faithfully discharge, in every respect, the trust reposed in him, as aforesaid; but did, at his death, remain indebted to the United States in a large balance of money, to wit, the sum of fiteen thousand five hundred and fifty-three dollars eighteen cents, for moneys, from time to time, since the date of the said obligation, received from the United States, as navy agent as aforesaid: by reason of all which, the condition of the said obligation hath become broken, and the said debt become due; wherefore they pray process of summons against the legal representatives of the said Joseph H. Hawkins, deceased, and of the said John Dick, deceased, and against the said Nathaniel Cox; and after due proceedings had, that judgment may be rendered against them for the said debt, with interest and costs.

J. W. SMITH, Attorney U. S.

Copy of bond annexed to the petition.–Know all men by these presents, that we, Joseph H. Hawkins, as principal, and John Dick and Nathaniel Cox, as securities, are held and firmly bound unto the United States of America, in the sum of twenty thousand dollars, current money of the United States, to be paid to the said United States, for which payment, well and truly to be made and done, we bind ourselves, and each of us, our and each of our heirs, executors, and administrators, in the whole and for the whole, jointly and severally, firmly by these presents. Sealed with our seals, and dated this tenth day of March, Anno Domini 1821.

The condition of the above obligation is such, that if the above bonded Joseph H. Hawkins shall regularly account, when thereunto required, for all public moneys received by him, from time to time, and for all public property committed to his care, with such person or persons, officer or officers, of the government of the United States, as shall be duly authorised to settle and adjust his accounts, and shall, moreover, pay over, as he may be directed, any sum or sums that may be found due to the United States upon any such settlement or settlements, and shall also faithfully discharge, in every respect, the trust reposed in him, then the above obligation to be void and of no effect, otherwise to remain in full force and virtue.

The bond was duly executed by the obligors, and then approved by the district attorney of the United States for the Louisiana district. The copy was regularly certified from the navy department.

Citations were issued from the office of the clerk of the court on the 20th October 1827, &c. to 'the legal representatives of J. H. Hawkins, deceased,' 'the legal representatives of John Dick, deceased,' 'and to Nathaniel Cox;' to appear and answer, &c. The marshal returned non est inventus as to the legal representatives of J. H. Hawkins,' and 'served on the legal representatives of John Dick, deceased,' and on 'Nathaniel Cox.' The separate answer of Nathaniel Cox, filed on the 11th of December 1825, stated, that he did sign the bond sued upon as surety of the late J. H. Hawkins, navy agent; but he denies that the sum of $15,553 18 is due by the sureties, as stated in the petition, but only $12,682 46; for this, that since the decease of the said J. H. Hawkins, he has paid on his account, and been allowed in credits at the treasury of the United States, the sum of $7,317 54, deducting which from the amount of said bond, $20,000, leaves the aforesaid sum of twelve thousand six hundred and eighty-two dollars forty-six cents.

And that, as between himself and his co-surety, he is entitled to a credit for this sum, $7,317 54, deducting which from the amount of $10,000, or one half the penalty of said bond, there will remain due by him the sum of $2,682 46, and by his co-surety the remainder of the sum, viz. $10,000, which apportionment he prayed may be made and allowed to him as against his co-surety, with all other and further relief which he may be entitled to.

On the 27th February 1828, on motion of the district attorney, and on giving the court to understand that Mrs Todd, a surviving sister, and one of the heirs of John Dick, deceased, resided out of the district, in the state of Virginia, the court ordered that Levi Peirce, Esq., attorney of Nathaniel and John Dick, two of the heirs of John Dick, deceased, be appointed curator, ad hoc, of Mrs Todd herein.

On the 3d March 1820, Nathaniel Cox filed a supplemental answer, representing that the succession of his co-security, John Dick, was solvent, and able to pay the debt claimed. He demanded that the United States divide their action, reducing their demand to the amount of the share and proportion due by each surety.

On the 20th May 1828, Nathaniel and James Dick filed their answer to the petition of the United States; that no amicable demand has been made according to law, and that they are, therefore, not bound for any expenses of this suit; and they further answer, that they are two of three heirs of J. Dick, who have accepted the succession of said J. Dick, with benefit of inventory; the third heir being Sarah Dick, wife of J. Todd, of the state of Virginia, citizen: and that, therefore, they are in no event bound for more than two-thirds of any debt of said J. Dick; that the debt now claimed, they deny is in any manner due by the estate of John Dick, but should the same be proved, they say that they have not received more than four thousand dollars of the estate of J. Dick, and are liable for no more than two thousand dollars each, of which they pray judgment and trial by jury; and that they may be dismissed with, &c.

The court, on the 19th December 1829, on the plea of Nathaniel Cox for a division of the action, overruled the same.

The cause came on for trial before a jury on the 2d January 1830, when a 'verdict for plaintiffs for twenty thousand dollars, being the amount of the bond,' was rendered.

Bills of exceptions were tendered, and sealed by the court on the trial; which stated, that 'Nathaniel Cox offered to prove, under the prayer of his answer, that his co-surety should be decreed to contribute in payment, according to their respective shares; that certain payments had been made in diminution of the balance of said Hawkins, since his death, and before the date of the transcript, produced in evidence by the district attorney, by the said Cox; and for this purpose, offered in evidence a certain transcript from the treasury books, duly certified; the introduction of said testimony was opposed by the counsel for the heirs of John Dick, his co-surety; on the ground that in this suit there could be no examination of the rights of the sureties as between themselves; which objection being sustained by the court, the testimony was rejected.'

And 'that Nathaniel Cox also offered in evidence another transcript from the books of the treasury, duly authenticated, purporting to be a list of payments made and receipts taken, and passed at the treasury of the United States, in the name of said Joseph H. Hawkins, since the 30th September 1823, (it having been previously shown that the said Hawkins died on the first of October 1823) in support of the allegations in his answer, that he had paid the sum of $7,317 54, since the decease of said Hawkins, in his capacity of surety; the introduction of said testimony was opposed by the attorney of the United States, on the ground that no credits could be allowed but such as had been presented at the treasury, and refused; which objection being sustained by the court, the evidence was refused; and the same defendant having further offered in evidence the account of said Joseph H. Hawkins, as navy agent, with the Bank of the United States, in this city, during the months of August and September, immediately preceding his death, in support of his said plea, the attorney for the United States objected to the introduction of the same, on the ground that the same could not be evidence against the United States; the court sustained, also, this objection, and overruled the testimony.'

On the 11th January 1830, Nathaniel Dick and James Dick filed a motion in arrest of judgment, stating that there was not in the case the number of parties required by law, the other heir not having filed any answer, or not being in court by judgment by default; that the judgment cannot be against two heirs for the whole amount due by John Dick, when it is on record, by motion of the United States district attorney, that there is another heir, to wit, Sarah Todd, the motion of the said attorney being on the 27th February 1828, as extracted from the record book: 'on motion of the district attorney, and on giving the court to understand that Mrs Todd, a surviving sister and one of the heirs of John Dick, deceased, resident out of the district, to wit, in the state of Virginia, ordered, that Levi Peirce, Esq., attorney of Nathaniel Dick and James Dick, two of the heirs of John Dick, deceased, be appointed curator, ad hoc, of the said Mrs Todd herein.'

The motion in arrest of judgment was overruled by the court; and on the 18th of January 1830, judgment was entered in favour of the United States in the following terms:

'The United States v. Representatives of Hawkins et al.–The court having maturely considered the motion in arrest of judgment, now order that judgment be entered up, as of the 15th instant, against the estate of John Dick and Nathaniel Cox, jointly and severally, for the sum of twenty thousand dollars, with six per cent interest from the 2d day of January 1830, until paid, and costs of suit; and that judgment be entered up against Nathaniel Dick and James Dick for the sum of ten thousand dollars each, with six per cent interest from 2d January 1830, until paid, and the costs.

SAMUEL H. HARPER, Judge U. S.'

The defendants, on the 20th of January 1830, paid into court the sum of twelve thousand six hundred and eighty-two dollars forty-six cents, on account of the judgment.

Nathaniel Cox, on the 21st January 1830, issued a writ of error to this court; and on the same day he filed an appeal bond, conditioned to prosecute the same with effect. The bond recited that he had filed a petition praying that a writ of error may be allowed to him from a certain final judgment rendered against him in the suit of the United States against the heirs and representatives of Joseph H. Hawkins, the heirs and representatives of John Dick, and Nathaniel Cox, in the district court of the United States in and for the eastern district of Louisiana.

The writ of error alleged that in the proceedings in the case in the district court of Louisiana, 'manifest error had intervened to the great damage of the said Nathaniel Cox.'

Afterwards, on the 22d January 1830, 'Nathaniel Dick and James Dick, two of the heirs of John Dick deceased,' prayed a writ of error to this court which was awarded; and an appeal bond was given by them on the 25th of January 1830, which recited that they 'had filed a petition, praying that a writ of error may be allowed to them from a certain final judgment rendered against them in the suit wherein the United States are plaintiffs, against the heirs and legal representatives of Joseph H. Hawkins, the heirs and legal representatives of John Dick, and Nathaniel Cox, defendants, in the district court of the United States for the eastern district of Louisana.'

This writ of error stated that the court were informed that in giving the judgment in the case 'manifest error had intervened' 'to the great damage of Nathaniel Dick and James Dick, two of the heirs of said John Dick.'

Separate citations were issued upon each writ of error. Upon the first, the citation required the United States 'to show cause why the judgment rendered against Nathaniel Cox should not be reversed.' On the second, the defendants in error were required to show cause 'why the judgment rendered against Nathaniel Dick and James Dick should not be reversed.'

The case, at an early day of the term, on the motion of Mr Taney, attorney general of the United States, was dismissed; no appearance having been entered for the plaintiffs. It was afterwards reinstated, on motion of Mr Johnston, who appeared as the plaintiffs' counsel.

Afterwards, the attorney general of the United States moved the court 'to quash the writ of error in the cause, because all the parties had not joined in the writ of error, the judgment in the court below being joint and several; but had sued out several writs of error.'

Before proceeding to argue the motion, Mr Taney asked the court, if his having, on a former day, appeared in the case for the purpose of moving to dismiss the writs of error, was to be considered as a general appearance. The court stated, that they considered it a special appearance, for the purpose of the motion only.

For the United States it was contended, that all the defendants should have united in the same writ of error. The judgment being joint and several, it must stand against all; unless it should be reversed against all.

The defendant, Nathaniel Cox, made a separate application for a writ of error, gave a separate bond, and issued a separate citation, calling on the United States to sustain the validity of the judgment of the district court against himself only. The other plaintiffs in error, Nathaniel and James Dick, also proceeded separately by writ of error, bond and citation, and they require the defendants in error 'to show cause why the judgment against them shall not be reversed.'

Thus, therefore, the whole character of the case is changed, when brought to this court. Here the proceedings are separate and distinct; the parties are different from those in the joint proceedings below; they came here by different writs of error; and call upon the United States to appear in this court by different citations, and for separate purposes.

It is absolutely necessary in proceedings at the common law, that all the parties to a judgment shall unite in the writ of error to the superior court, unless, by regular process, they have been severed. The writs of error by which the case is brought up are not in the proper form. They state a separate judgment to have been rendered in Louisiana, and the record shows a joint and several judgment. Cited 9 Petersdorf's Ab. 10, note; 11 Wheaton, 414.

If the case can be brought up separately, one party may present it to this court at one time, and the other at another time.

The question is unimportant in the final disposition of the case, unless, if the writs of error are erroneous, the security which is given in the court below will thereby be released; and thus the United States be deprived of the benefit of the appeal bond, the writs of error being a supersedeas.

Although the proceedings in the court of Louisiana are not according to the common law while in that district, yet when these proceedings are brought to this court, they must go on according to the common law rule; and so the act of congress considers the subject. Nor can the parties in such a case be without remedy. If the usual forms of the common law in cases of writs of error will not apply to such a case as this; and the proceedings in the courts of Louisiana, being according to the civil law, require a different form of a writ of error to meet the actual situation of the parties; this court has full authority by law to frame the proper and competent process.

For the plaintiffs in error, Mr Johnston of Louisiana stated, that he felt no particular interest in this question, except as a general rule of practice; inasmuch as the dismissal would not preclude the plaintiffs from bringing up the writ of error in any form that might be prescribed, within the time allowed by law. The law of congress does not prescribe the manner of suing out a writ of error. It is therefore left to the rules of practice, which the court may adopt, to facilitate the uniform regular administration of justice. No rule has been established in this case.

The court in general refer to the laws and practice in England, not as law, but as a guide; as the evidence of what enlightened men have considered, in the country from which we borrow our terms of law, as the best rules of practice.

It is true, by the laws of England, that all persons who may be damnified by a judgment, may sue out a writ of error, even those indirectly and remotely interested. It is true also as a general rule, that all parties must join in a writ of error. But if the parties do not or will not join, the court order a summons and severance; and that proceeding authorizes any party to proceed in the writ. If the court therefore adopt the rule that all must join, they must also adopt the remedy of ordering, in all proper cases, a severance of the parties; and this makes the whole affair a mere matter of form.

It must be obvious, that in many cases all the parties will not join in the appeal: sometimes they are satisfied with the judgment; often they have no interest in reversing it. It will sometimes occur that the judgment is favourable to one defendant, and unfavourable to the other: and in suits against several, the chief question may be among the defendants: and in the case now pending the question was, whether a payment made by one, should go to his credit or to the credit of all: and by the laws of Louisiana, where the defendants may pray judgment against the plaintiff, a judgment may be rendered against one defendant, while the other defendant may have judgment against the plaintiff: in all these cases the defendants have a different and adverse interest, when there would be no motion to appeal, and when even their own interest might be compromitted. The party interested in reversing the judgment only will sue out a writ of error. The court cannot compel the other party to join, and justice could not be done if either party could defeat the other of their legal rights. The aggrieved party must be allowed to bring up the case, and if it is necessary to comply with obsolete forms, the court must decree a severance.

But in this case all the parties are before the court. They had separate grounds of defence, the court below allowed them to sever in their answer: judgment was rendered against all in solido; and separately, for the whole amount against two of the defendants. They have both sued out a writ of error, so that the only motion here should be to consolidate. The parties have distinct grounds of error, and claim distinct remedies; but the judgment may be reversed in whole or in part; it may be good against one defendant, and erroneous as to the others.

The case of Williams v. Bank, in 11 Cranch, is not applicable, because Williams alone took up the case; but even then, I understand the court would have granted summons and severance.

The reason assigned for the English rule why all parties must join, is, that a writ of error suspends execution; which is not so here, where execution goes in all cases against all those who have not joined in the writ of error and given bond.

This must be a very important principle in practice, and ought to be settled. It is extraordinary that no such case has heretofore occurred.

The object must be to have a reasonable rule, a practicable and convenient rule, that will facilitate the administration of justice, that will advance the remedy by writ of error; and not one calculated to defeat or obstruct the course of the laws by objections, merely technical, as to the forms of proceeding.

It will be found more convenient to adapt our proceedings upon writ of error to the general practice of the state courts. They are more consonant to our system, and better known to the bench and the bar.

The court overruled the motion to dismiss the writ of error.

The case afterwards came on for argument.

For the plaintiffs in error, the following errors in the proceedings and judgment were assigned.

1. The judgment is void, because no judgment could be rendered against these parties under the general and indefinite description 'of the legal representatives of Joseph H. Hawkins and John Dick.' The citation was not legal or valid, and the return does not state on whom service was made, and the truth of ...


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