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Ex parte Taylor.

day of March, 1850, and the first day of September, 1852, at his, the said David Taylor's, special instance and request.

J. T. Coombs. Subscribed and sworn before me. H. NAYLOR, J. P. 4th October, 1852.

Agreement referred to in the aforegoing Affidavit. Contract made and concluded on the twenty-eighth day of March, A. D. 1851, by and between Thomas Ewing, Junior, formerly of Ohio, and David Taylor, formerly of North Carolina, in behalf of himself and his wife and childien, in these words :

The said party of the first part, covenants and agrees to prosecute before Congress, or before the public departments of the general government, the claim of the said party of the second part, and that of his wife and children, under the Cherokee treaty of 1835 – 6, to the appraised value of a reservation of 640 acres of land, lying in the State of Tennessee, which said claim was before the Committee of Indian Affairs of the Se. nate at the last session of Congress; and further, that the said party of the first part, will use proper diligence in the prosecution of the said claim, and at no time will let the interests of the said party of the second part suffer by want of a proper degree of attention to the claim, on his part, unless prevented froin rendering it by sickness or some other unavoidable and unforeseen necessity.

And the said party of the second part, in consideration of the valuable services which the said party of the first part nas already rendered in the prosecution of the said claim; and in further consideration of the agreement which the said party of the first part herein makes, to continue to prosecute the claim until it is finally allowed and paid, hereby covenants and agrees to pay unto the said party of the first part the sum of twenty per centum upon the amount of said clair, whenever the same inay be allowed; and if at any time a part of it only is allowed then the said party of the second part covenants and agrees to pay unto the said party of the first part, a like per centage upon the sum allowed.

And for the true and faithful performance of a!l the agreements above mentioned, the parties to these presents bind themselves, cach unto the other, in the penal sum of five thousand dollars, as fixed and settled damages, to be paid by the failing.party.

In testimony whereof, the parties to these presents have hereunto set their hands and atlixed their seals, the day and year first above written.

Tho. Ewing, Jr. (SEAL.)

his David X TAYLOR (SEAL.]

mark.

Es parte Taylor.

The within .contract was read by me to Mr. Taylor, before signing it, and he declared himself fully satisfied with the conditions herein expressed.

Signed, sealed, and delivered in my presence, this 28th day of March, A. D. 1851.

W. H. COLLEDGE.

A copy of which said affidavit was made, and sent with the writ aforesaid to the marshal of the district aforesaid, thereon indorsed, to wit, “ To be served on the defendant with the writ.” Account referred to in the foregoing Affidavit, to wit :

Washington, Sept. 1st, 1851. Mr. David Taylor, Dr. to Thomas Ewing, Jr. To commission, 20 per cent., on $24,853.04, amount allowed on your claim against United States, under Cherokee Trea y of 1835, for work and labor done and performed in obtaining said allowance, and as per agreement

• • . $4,970.00 At which mentioned third Monday of October, in the year eighteen hundred and fifty-two, and the day of the return of the aforegoing writ, comes again into the Circuit Court here, the said plaintiff, by his attorney aforesaid; and the marshal of the district aforesaid, to whom the said writ was in form aforesaid directed, makes return thereof to the court thus indorsed, to wit,“ Cepi in jail. R. Wallach, Marshal.”

And now, to wit, on the day of November, A. D. 1852, in open court, appears David Taylor, in custody of the marshal of the district aforesaid, and moves the court here that he be permitted to enter a common appearance to the said writ of the said Thomas Ewing, Jr.; and at the same time the said “David Taylor, by his attorney, Robert J. Brent, Esq., offered to appear to said writ, and to defend the same; but the court refused to allow the said David Taylor to appear to said writ until he should give special bail, to the amount of indebtedness sworn to in the affidavit of said Thomas Ewing, Jr., filed in this cause. And thereupon the said David Taylor, so being in open court, prayed the court to take special bail for him in this action, to the amount of one hundred and thirty-three dollars thirtythree and one third cents. And at the same time appeared in open court John Frederick May and Joseph L. Williams, residents of the District of Columbia, who, with the consent of the said David Taylor, offered to enter themselves as special bail for the said David Taylor, and to justify in double the said last amount; but the court, in nowise denying the sufficiency of said bail as offered, refused to accept or take special bail for

Ex parte Taylor. any amount less than the amount sworn to by said Thomas Ewing, Jr., as aforesaid; and the said David Taylor declining to give or offer bail to the amount required by the court, he is thereupon ordered and remanded by the court to the custody of the marshal of the District of Columbia.

Test. John A. Smith, Clerk. District of Columbia, Washington County, to wit : I, John A. Smith, Clerk of the Circuit Court of the District of Columbia, for the county of Washington, hereby certify that the aforegoing is a full and perfect transcript of all the proceedings had in the said court, in the said case of Thomas Ewing, Jr., against David Taylor, as appears from the ininutes of the proceedings of said court.

In testimony whereof, I have hereunto subscribed my name, and affixed the seal of said court, this 10th December, 1852. SEAL.

JNO. A. Smith, Clerk.

It appears, in this case, that a suit was brought in the Circuit Court of the United States for Washington County, in the District of Columbia, by Thomas Ewing, Jr., against David Taylor, to recover a sum of money which he alleged to be due to him, upon a contract which is set forth in the proceedings, and also for services rendered to Taylor at his instance and request...

* The writ issued on the 4th of October, 1852, returnable to the October term, which began on the third Monday of the same month. And at the time of issuing the writ, the plaintiff filed his declaration containing the usual money counts, and also an affidavit stating the amount due, and the nature of his claim; that the debt was contracted in Washington county, in the District of Columbia, and that Taylor, being then in said county and district, was about to remove from it, and remove his property, rights, and credits, in order to avoid the payment of this debt.

The marshal arrested Taylor, and made his return upon the writ “ Cepi in jail ;” and thereupon Taylor appeared in court, in the custody of the marshal, and, by his counsel, moved for leave to appear on common bail. But the court refused to pera mit him to appear and to discharge him from custody, until he should give bail to the amount of the debt sworn to in the affi. davit of the plaintiff. Taylor then moved for leave to appear, upon giving bail in the sum of one hundred and thirty-three dollars thirty-three and a third cents, claiming that he was entitled fo be discharged upon giving bail to that amount, under the act of Assembly of Maryland of 1715, which act, together with the other laws of Maryland in force when the United Ex parte Taylor.

States assumed jurisdiction over this district, were adopted by Congress as the laws of Washington county.

But the Circuit Court adhered to its decision, and refused to permit the party to appear, without giving bail to the amount claimed in the plaintiff's affidavit.

Upon this state of the case, Taylor moves for a rule on the Judges of the Circuit Court to show cause why a mandamus shall not be issued from this court, commanding the Judges of the Circuit Court to permit Taylor to appear to the abovementioned suit on common bail, in order that he may be discharged from the custody of the marshal; and failing that motion, then to show cause why he should not be permitted to appear, upon giving bail to the amount of one hundred and thirty-three dollars and thirty-three and one third cents, under the provisions of the Maryland law.

According to the established practice of this court, a rule of this kind is not granted as a matter of course, and the inferior court is never called on to show cause, unless a case is presented whichi primâ facie requires the interposition of this court. It was so settled in the case of the Postmaster-General v. Trig, Administrator of Rector, 11 Pet. 173.

We proceed, then, to inquire whether such a case has been presented to support this motion.

The proceedings by which Taylor was arrested and helu in custody, were under the act of Congress of August 1st, 1842, (5 Stat. at Large, 498.) This act provides that no person shall be held to bail in any suit in the District of Columbia, unless upon such an affidavit as is described in the law, which must be filed previously to the issuing of the writ.

It is insisted, on behalf of Taylor, ihat he was entitled to his discharge from custody upon entering an appearance by his attorney to the suit, because, as he alleges, the affidavit filed in the suit does not conform to the provisions of the act of Congress, and therefore was not sufficient, under that law, to justify the court in demanding bail.

But that is a question which this court camot consider. The act of Congress provides that the sulliciency of ihe allidavit to hold to bail, and the amount of bail to be given shall, upon application of the defendant, be decided by the court in term time, and by a single judge in vacation. In deciding upon the appli. cation to discharge Taylor from the cristody of the marshal, the court must necessarily have considered and interpreted the act of Congress, as well as the allidavit, and determined whether the allidavit was sufficient or not. And certainly, even in Eng. land, the kiny's Bench never claimed or exercised the power to issue a mandamus to an interior court of record, commanding

Moore v. The People of the State of Illinois.

it to reverse its judgment, in a matter where the law authorized it to judge. In the case before us, the power of deciding on the sufliciency of the affidavit, and the amount of bail, is a part of the judicial power of the court. It has exercised this power, and passed its judgment. We do not mean to say that this judgment is in any respect erroneous. But, assuming it to be so, this court cannot, by mandamus, command them to reverse it. The writ has never been extended so far, nor ever used to control the discretion and judgment of an inferior court of record acting within the scope of its judicial authority. There is no ground, therefore, for the rule under the act of Congress.

The application under the Maryland act of 1715, is equally untenable. The provision in that act relied on in support of the motion, was never held in Maryland to apply to any thing but the bail-bonds to be taken by the sheriffin certain cases, and never influenced the decision of the courts as to the amount of bail to be required when the defendant was brought into court. But it is unnecessary to speak of that act, or of the construction it received in the courts of Maryland ; because the right of the plaintiff in the Circuit Court to demand bail depends altogether upon the act of Congress. And if there is any discrepancy between this act and the act of Assembly of 1715, the act of Congress must govern, and is a repeal pro.tanto of the Maryland law.

The rule to show cause is therefore refused.

THOMAS MOORE, Executor of RICHARD Eels, Plaintiff IN

ERROR, V. THE PEOPLE OF THE STATE OF ILLINOIS.

A State, under its general and admitted power to vletine and punish offences against

its own peace and policy, may repel from its borders an unacceptable population, whicther paupers, criminals, fugitives, or liberatel slaves; and, consequently, may punish her citizens and others who thwart this policy, by liarboring, sccreting, or

in any way assisting such fugitives. It is no objection to such legislation that the offender may be liable to punishment

under the act of Congress for the same acis, when injurious to the owner of the fugitive slave. The case of Prigg v. The Commonwealth of Pennsylvania. (16 Peters, 539,) presented

the following questions, which were decided by the court : 1. That under and in virtuc of the Constitution of the United States, the owner of a

slavc is clothed with entire authority in every State in the Union, to seize and recapture his slave, wherever he can do it without illegal violence or a breach of the

peace. 2. That the government of the United States is clothed with appropriate authority

and functions to enforce the delivery, on claim of the owner, and has properly exercised it in the act of Congress of 12th February, 1793. VOL. XIV.

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