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Ex parte Taylor.

Supreme Court of the United States, for a rule on the Judges of the Circuit Court of the District of Columbia for Washing. ton County, to show cause why a mandamus should not issue commanding them to admit the appearance of the petitioner to a suit in said court, by Thomas Ewing, Jr., against said petitioner; and the petitioner moves for the said rule on his petition, and the transcript therewith filed.

1. Because there is no legal cause of bail set forth in the proceedings in said suit, and by the refusal of the Circuit Court to allow his appearance to be entered to said suit, he is unlawfully detained in custody by the marshal of said district.

2. Because the act of Maryland, passed in 1715, c. 46, ; 3, is in force in the county of Washington, and nowise repealed, and the petitioner was by virue of said act entitled to appear to said suit, on giving special bail in the sum of one hundred and thirty-threc dollars thirty-three and a third cents. But the court refused to allow him so to appear, or to enter bail in said amount.

3. Because the petitioner has a legal right to appear without bail, or upon giving bail to the amount required by the act of 1715, c. 46, § 3, and thereby to be discharged from prison, and the said legal right does not depend on the discretion of the court. but is fixed and regulated by law, and there is other legal remedy for the petitioner in the premises.

ROBER: J. BRENT, for Petitioner. To the Judges of the Supreme Court of the United States.

The petition of David Taylor respectfully showeth, that he is now confined in the jail in the city of Washington, at the suit of a certain Thomas Ewing, Jr., and he refers to the accompanying transcript of the record of said suit, and makes the samne a part of this petition, for the better understanding of the proceedings under which he is now unjustly and oppressively detained in prison.

Your petitioner showeth, that by said record it appears he was held to bail in said suit, upon the affidavit of said Ewing, and without a copy of the declaration being served on him, as required by the act of the legislature of Maryland of 1715, c. 46, § 3.

That, at the return of the writ of capias ad respondendum, issued in said cause, your petitioner moved to enter his appearance without giving special bail, because of the alleged insufficiency of the affidavit to hold to bail, but said motion was overruled by the Circuit Court of the District of Columbia for Washington County. That, thereupon, your petitioner moved to enter his appearance to said suit, upon giving good and

Ex parte Taylor.

sufficient special bail, in the sum of one hundred and thirty-three dollars and thirty-three and one third cents, because of the omission to serve your petitioner with a copy of the declaration, according to the terms of the aforesaid act of 1715, c. 40, 93; and your petitioner then and there tendered in open court good and sufficient bail, in the last-mentioned sum of money. The sufficiency of said bail for said amount was fully admitted by said court, as will appear by reference to said transcript of the record; but the court overruled said application upon the express ground that your petitioner was bound to enter special hail to said action, in the amount of the sum sworn to in the affidavit of said Ewing, which sum is shown in said affidavit to be four thousand nine hundred and seventy dollars. Your petitioner is advised that the aforesaid recited act of the legislature of Maryland is in full force in Washington county aforesaid; and that, under and by virtue of said law, it was the duty of the marshal to require no greater appearance-bail, and of the court to require no greater special bail than the amount specified in said act, where no copy of the declaration is sent to be served with the writ; and your petitioner is also advised, that there is in said affidavit no legal cause of bail whatever. Wherefore, inasmuch as the said Circuit Court has refused both of said app.ications for an appearance on the part of your petitioner to said suit, and as the law provides no other adequate remedy in the premises, whereby your petitioner can, before the final de termination of said suit, regain his personal liberty, whereof he is now illegally and unjustifiably deprived, your petitioner prays that the writ of mandamus may be issued and directed to the Judges of said Circuit Court, commanding and enjoining them to receive the appearance of your petitioner to said action, either without requiring special bail, or upon your petitioner causing good and sufficient special bail to be entered to said action, in the sum of one hundred and thirty-three dollars and thirty-three cents and one third of a cent. And, as in duty bound, your petitioner will ever pray, &c.

ROBERT J. BRENT, for Petitioner.

District of Columbia, Washington County, to wit : Before the subscriber, a justice of the peace of the Distric of Columbia, in and for Washington county, personally appears David Taylor, the within petitioner, and made oath on the Holy Evangely of Almighty God, that the facts, as stated in the said petition, are true, to the best of his knowledge and belief.

J. W. BECK, J. P. Dec. 10, 1852.

Ex parte Taylor.

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District of Columbia, ss. At a Circuit Court of the District of Columbia, begun and held in and for the county of Washington, at the city of Washington, on the third Monday of October, being the eighteenth day of the same month, in the year of our Lord one thousand eight hundred and fifty-two, and of the independence of the United States the seventy-seventh. Present, WILLIAM CRANCH, Chief Judge.

The Hon. JAMES S. MORSELL, and Assistant
JAMES DUNLOP,

Judges.
RICHARD WALLACH, Esquire, Marshal.

John A. SMITH, Clerk. In the records of proceedings of the said court, amongst others, are the following, to wit:Thomas Ewing, Jr.

V. David TAYLOR. Be it remembered, to wit, on the 4th day of October, 1852, the said plaintiff, by Charles S. Wallach, Esquire, his attorney, prosecuted and sued forth out of the Circuit Court here, the United States writ of capias ad respondendum, directed to the marshal of the District of Columbia, in form following, to wit:

District of Columbia, to wit: The United States of America, to the Marshal of the District

of Columbia, Greeting : We command you, that you take David Taylor, late of Washington county, if he shall be found within the county of Washington, in your said district, and him so fely keep, so that you have his body before the Circuit Court of the District of Columbia, to be held for the county aforesaid, at the city of Washington, on the 3d Monday of October instant, to answer unto Thomas Ewing, Jr., in a plea of trespass on the case, and so forth.

Hereof fail not at your peril, and have you then and there this writ.

Witness WILLIAM CRANCH, Esq., Chief Judge of our said court, at the city of Washington, the 22d day of May, Anno Domini one thousand eight hundred and fifty-two. Issued this 4th day of October, 1852. Wallach.

JNO. A. SMITH, Clerk.

Ex parto Taylor.

District of Columbia, Washington County, to wu: And the aforesaid plaintiff, on the day of prosecuting and suing forth of the aforegoing writ, declared against the said defendant in the plea aforesaid, in the form following, to wit:

District of Columbia, Washington County, to wit: David Taylor, late of the county aforesaid, was attached to answer unto Thomas Ewing, Jr., in a plea of trespass on the case, and so forth. And whereupon the said plaintiff, by Charles S. Wallach, his attorney, complains that, whereas the defendant, on the first day.of September, in the year eighteen hundred and fifty-two, at the county aforesaid, was indebted to the plaintiff in the sum of four thousand nine hundred and seventy dollars, current money of the United States, for sundry matters and articles, properly chargeable in an account, as by a particular account thereof herewith into court exhibited, appears. And being so indebted, the defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, of the county aforesaid, undertook, and faithfully promised to the said plaintiff, to pay him the aforesaid sum of money, when, he should be thereto afterwards required.

And whereas; also, the defendant, on the first day of September, in the year eighteen hundred and fifty-two, at the county aforesaid, was indebted to the plaintiff in the further sum of four thousand nine hundred and seventy dollars, for work and labor done and performed by the plaintiff for the defendant, at his special request; and in the further sum of four thousand nine hundred and seventy dollars, for money received by the defendant for the use of the plaintiff; and in the further sum of four thousand nine hundred and seventy dollars, for money lens.and advanced by the plaintiff to the defendant, at his, the defendant's, request; and in the further sum of four thousand nine hundred and seventy dollars, for money paid, laid out, and expended, by the plaintiff for the use. of the dę. fendant, at his, the defendant's, request; and being so indebted, the defendant afterwards, that is to say, on the day and year aforesaid, at the county aforesaid, in consideration thereof, undertook, and then and there faithfully promised to the said plaintiff, that he the defendant, the said several sums of money, when required, would well and truly pay to the plaintiff.

And whereas, the defendant afterwards, that is to say, on the first day of September, in the year aforesaid, at the county aforesaid, accounted with the plaintiff, of and concerning divers sums of money, from the said defendant to the plaintiff due,

Ex parte Taylor:

owing, then in arrear and unpaid; and upon such accounting, the said defendant was then and there found in arrear, and indebted to the said plaintiff the further sum of four thousand ninc hundred and seventy dollars; and being so found in arrear and indebted, the said defendant afterwards, that is to say, on the day and .year last mentioned, at the county aforesaid, in consideration thereof, undertook, and then and there faithfully promised to pay to the plaintiff, when thereto afterwards required, the said last-mentioned sum of money:

Nevertheless, the defendant said promises in nowise regarding, the said several sums of money, or any part thereof, though often required, to the plaintiff

' has not paid, but the same to pay has always refused, and still refuses, to the damage of the plaintiff, in the sum of ten thousand dollars, and therefore he brings suit, &c.

Charles S. WALLACH,

For the Plaintiff. The said plaintiff, by his attorney aforesaid, at the time of prosecuting and suing forth the said writ, also filed the follow. ing affidavit to hold to bail, to wit:

District of Columbia, Washington County, to wit: Thomas EWING, Jr.

v. David TAYLOR.

On this fourth day of October, 1852, personally appeared before me, the subscriber, a justice of the peace, in and for the county and district aforesaid, Joseph T. Coombs, of the county and district aforesaid, agent for the plaintiff in the above cause, and made oath on the Holy Evangely of Almighty God, that David Taylor, a resident of the State of North Carolina, defendant in the above cause, is indebted to the said plaintiff in the full and just sum of four thousand nine hundred and seventy dollars, for moneys due upon a certain agreement or contract herewith filed, and for work and labot done at his, the said David Taylor's, special instance and request, in the district and countyaforesaid, a particular account whereof is herewith filed. And that the said Taylor, being now in the said county and district, is about to remove from and go out of "said county and district, and remove his property, rights, and credits from said county and district, with a view and in order to avoid the payment of the said -debt, as this affiant verily believes, and that said debt was contracted in said county and district by the said David Taylor; and that said work and labor were done and performed in the sajd county and district by the said plaintiff, between the 8th

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