Page:United States Reports, Volume 2.djvu/382

 376 Casas ruled and adjudged in the tygy. fue is aélually joined by Durr alone. If, therefore, the plain• vw`! tiff fucceeds in the prefent objeét, how is the record to be new modelled, upon any principle of law, or praflice, fo as to be rendered conlillent with itfelf, and with the truth of the cafe ? What will be the title of the declaration ;—of what term lhall it be liled ;—what`lhall be the form of the old, or any new, illire ;-—and what is to be done with the original writ, and its re- turn ? Thus, the perplexity ariling from the plaintiE’s do€trine, (which, if it is jult in one cafe, mull; be jult in every cafe) is endlefs and infurmountable. Suppofe the fuit originated in the Common Pleas, but had been removed into the Supreme Court before the fecond writ ill`ues :—from which Court lhall the fe- cond writ ilfue, and may one half of the caufe be depending in the Court above, and the other half in the Court below ? Sup- pofe a verdi£t given on the lirlt writ, before the feeond writ is returned :—·can there be two verdifls for the fame caufe, how. lhall the amount be afeertained, or execution ilfue; and what is to be done if the verdifls lhould be contradi&ory? Suppofc there are ten defendants to one contra&, can it be reafonableor jult, that there lhould be ten writs ill`ued, or that ten bail bonds lhould be fuccellively taken, for ten times the amount of the demand, or how is the bail to be modiied and apportioned? Many other hypothefes might be fairly fog lied to evince the extravagance, to which an allowance of LE: prefent motion would lead; and even after allowing it, there would arife ano- ther dilliculty, in afcertaining in what aélion common bail lhould be entered for Holler, as there are now clearly two aélions for the fame caufe on the records. See g Cam. DQ. 297. - But it is not intended to leave the plaintif without a remedy. If the bail is fatisfaétory (and fatisfaétory bail can always be. exaéled, to the full amount of the demand upon the arreli of any one of the parties) the plaintilf may proceed to recover judgment, conformably to the liate praétice. lf the plaintilf is not fatislied with the bail, then there may be a dil`continu· ance; or,_perhaps, the procefs may be kept alive, from term to - term, till all the parties to the contraft are brought into court. Rmwlz,. in reply. The confequences afcribed to the doc- trine, in fupport of the motion, owe all their extravagance to the imagination of the oppolite counfel. There is an important dillinéiion between ufages of law, and the praflioc of courts ;··· the latter being only a part of the former, and not, of courfe, as extenlive. The quelticn, therefore, lhould not be referred to - the pra€tice of the State Courts, but lhould be decided by the ufages of law, under the a€t of Congrefs; and if it is lhewn,. that the mode of proceeding, now purfued, is not inconliltent with the State praélicc, while it is agreeable to the ufages and _ principles ·

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