United States v. Morgan (26 U.S. 573)

ERROR to the Circuit Court of the United States for the district of Maryland.

This was an action of debt, brought in the Circuit Court of the United States for the district of Maryland, at May Term 1825, to recover 3067 dollars, being the debt, damages, costs, and charges, contained in a certain judgment between the same parties, recovered by the United States in the District Court of Maryland, at March Term 1819. The original judgment was rendered upon a joint and several bond of these defendants, given for duties on an importation by Sheppard, and was rendered for 3050 dollars debt, and seventeen dollars damages, costs, and charges. The declaration in this case was in the usual form, containing averments that the said judgment still remains in full force and effect, not in any wise annulled, reversed or vacated-that the said United States have not obtained any satisfaction of or upon the said judgment, and that the said defendants have not yet paid the sum of 3067 dollars, or any part thereof, buy to pay the same or any part thereof, they have and each of them hath hitherto wholly refused, &c.

The writ in this case was served upon Stansbury and Morgan only, and not upon Sheppard. The two former appeared, and pleaded in bar of this action: that they were sureties for Sheppard in the bond upon which the said judgment was recovered. That after the said judgment was recovered, and before this suit was commenced, Sheppard was taken and imprisoned by virtue of a capias ad satisfaciendum, issued upon said judgment, and discharged from prison by order of the Secretary of the Treasury, under the Act of Congress passed on the 6th June 1798, on condition that he should pay the costs, and assign and convey to the use of the United States, all his property, real, personal, and mixed, by an instrument approved by the then District Attorney of the United States for that district; which order of the Secretary is set forth literally in the plea. The plea then avers, that the said Sheppard did assign and convey all his estate, &c., by an instrument approved by the District Attorney, and did pay the costs according to the conditions imposed by the Secretary, and was thereupon voluntarily released and discharged from the said execution, by the said Secretary, without the consent and against the will of them the said Stansbury and Morgan.-Therefore they pray judgment, &c. To this plea, there was a general demurrer and joinder, and judgment was rendered for the defendants, pro forma, in the Circuit Court, upon which judgment the United States have brought a writ of error to this Court.

For the United States, it was contended, that the judgment ought to be reversed, and judgment rendered for the United States.

The defendants in error claimed—

1. That the discharge of Sheppard from the execution of the plaintiff, operated as a release to all the defendants.

2. That the defendants, as sureties, were exonerated by the compromise made with the principal without their concurrence.

3. That at all events, the plaintiff cannot have judgment upon the pleadings in this cause, as the demand embraces the whole amount of the judgment in the District Court.

The case was argued by Mr. Wirt, Attorney General for the United States, no counsel attending on the part of the defendants in error.

The following cases were cited by Mr. Wirt, in the course of his argument. Dean vs. Newhall, 8 T. R. 168. Rowley vs. Stoddard, 7 John. 206. 5 Co. Rep. 86, b. Foster vs. Jackson, Ibid. 52. Vejus vs. Aldwick, 4 Burr, 2482. Jacques vs. Withy, 1 T. R. 557. Tanner vs. Hague, 7 R. R. 420. Blackburn vs. Stupert, 2 East, 243. Clark vs. Clement, 6 T. R. 526. M'Lean vs. Whiting, 8 ''John. Rep.'' 339. Hayling vs. Mulhall, 2 Bl. Rep. 1235. 2 Shower, 394. 2 ''Ld. Ray.'' 1072. 5 East, 147. Hurst vs. The United States, 1 Gal. 32. 1 Saund. 330. 1 Chitty, 107-8.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.--