Caldwell v. Jackson. 7 C.

should not be dismissed for want of jurisdiction, the matter in dispute being less than $100, and the writ of error being to the circuit court for the District of Columbia.

Upon the return of the rule, it appearing that the sum awarded was only $45, the court, all the judges being present, decided that they had no jurisdiction, although the sum claimed by Wise & Lynn, before the commissioners of the road, was more than $100.

3 P. 33; 15 H. 198.

Writ of error dismissed.

CALDWELL v. JACKSON.

7 C. 276.

Each party is liable to the clerk of this court for the fees due to him from each party respectively.

CALDWELL, the clerk of this court, obtained a rule against Jackson, to show cause why an attachment should not issue for non-payment of his fees in the suit of Winchester against [277 ] Jackson, which had been dismissed on the motion of Jackson, with costs, at a former term.

Milnor, now showed cause, and contended that Jackson was not liable to the clerk for his fees, inasmuch as Jackson was the defendant in error, and the writ of error had been dismissed with costs. The clerk must look to the plaintiff in error for all the costs. The bill, which had been rendered, included the expense of a copy of the record, which is not regularly taxable as costs, and therefore the nonpayment of that charge can be no ground for an attachment.

MARSHALL, C. J., stated the opinion of the court to be, that each party was liable to the clerk for his fees for services performed for such party; and it is immaterial to the clerk which party recovers judgment.

Rule absolute.

Wallen v. Williams. 7 C.

BLACKWELL v PATTEN and others.

7 C. 277.

A writ of error issued in September may bear teste of the February term preceding, and may be returnable to the next February term, notwithstanding the intervention of the August term between the teste and return of the writ.

Jones, for the defendants in error, moved this court to dismiss the writ of error, because it bore teste of February term, 1810, was issued in September, 1810, and was returnable to February term, 1811, whereas it ought to have been tested of August term, 1810.

[ * 278 ]

* THE COURT refused to quash or dismiss the writ of error on account of the irregularity of its teste.

WALLEN v. WILLIAMS

7 C. 278.

This court will not quash an execution issued by the court below to enforce its decree, pending the writ of error, if the writ of error be not a supersedeas as to the decree.

ERROR to the circuit court of the district of Tennessee, to reverse a decree in chancery. The court below had issued a writ of habere facias possessionem to enforce its decree. The writ of error was too late to be a supersedeas to the decree.

Jones, for the plaintiff in error, now moved to quash the writ of habere facias as irregular.

P. B. Key, contrà.

[ * 279 ] * MARSHALL, C. J. The writ of error is to the original decree, which did not award this writ of habere facias. It was awarded by a subsequent order of the court, to which no writ of error issued.

TODD, J. The attachment to compel a performance of the decree was unavailing; and upon the return of it, the habere facias was

Beatty v. Maryland. 7 C.

issued in conformity with the practice in that State, as admitted by the counsel on both sides in the court below. It was ordered as a matter of course, and no objection was made. If this motion should prevail, it will make the writ of error operate as a supersedeas, contrary to the intention of the act of congress.

A state court has no jurisdiction to enjoin a judgment of a circuit court of the United States.

CERTIFICATE of a division of opinion of the judges of the circuit court of the United States for the district of Kentucky. The substance of the case was, that McKim, a citizen of Maryland, recovered a judgment in ejectment against Voorhies, a citizen of Kentucky, in the circuit court of the United States for that district. Afterwards, Voorhies filed a bill in a court of the State of Kentucky, obtained an injunction, staying all further proceedings on the judgment, and served a copy thereof on the clerk of the circuit court. McKim then applied for a writ of habere facias, and upon this motion the opinions of the judges were opposed.

TODD, J., stated the opinion of the court to be, that the [*281 ] State court had no jurisdiction to enjoin a judgment of the circuit court of the United States; and that the court below should be ordered to issue the writ of habere facias.

1 H. 301.

BEATTY V. THE STATE OF MARYLAND.

7 C. 281.

A final account settled by an administrator with the orphan's court, is not conclusive evidence in his favor upon the issue of devastavit vel non.

ERROR to the circuit court for the District of Columbia.

This was an action of debt brought at the instance and for the use

Beatty v. Maryland. 7 C.

of Thomas Corcoran, against Thomas Beatty, upon the administration bond of Mrs. Doyle, administratrix, with the will annexed, of Alexander Doyle. The defendant was one of her sureties in that bond. The defendant after oyer pleaded a special performance of every item in the condition of the bond. To which the plaintiff replied a judgment de bonis testatoris obtained by him, in May, 1799, against the administratrix, fieri facias upon that judgment and a return of nulla bona. The replication also avers that the administratrix had in her hands, at the time of the judgment, goods of her testator sufficient to satisfy the debt, but that she wasted them. The defendant took issue upon the devastavit.

The defendant took a bill of exceptions, which showed that the plaintiff put in evidence, on the trial, a record of a judgment, recovered against the administratrix, in May, 1799, for $357, and a fieri facias returned nullu bona. Also the inventory which she had exhibited to the

orphan's court of Montgomery county, Maryland, in Janu[* 282 ] ary, 1795, * amounting to 3,7017. 2s. 7d., Maryland currency, of which 2007. is stated in the inventory to be cash. Also an account of the administratrix with the estate of her testator, rendered by her to the orphan's court upon oath on the 17th of August, 1799, in which she charges herself with the sum of 1,085/. in addition to the former inventory, making in the whole 4,7867., and claims credit for sums paid to other creditors whose claims were not entitled to preference, amounting to 3,5667. ; leaving a balance still in her hands of 1,2201. equal, to $3,253, and also a second account rendered by her, upon oath, to the orphan's court in November, 1799, charging herself with a further sum of assets to the amount of 463l. 15s. 5d. in addition to the former balance, and claiming credit for 1,6077. 16s. 11d. paid to sundry creditors not entitled to preference, and still leaving a balance of 76/..in her hands to be administered. The defendant then offered in evidence a third account, rendered by the administratrix to the orphan's court in 1801, in which she charges herself with the former balance of 761., and claims allowance for payments and commissions to the amount of 1237., leaving a balance in her favor of 477. To this account, as well as to the two former, was annexed a certificate from the register of wills, that the administratrix make oath on the Holy Evangels of Almighty God, that the account was just and true as it stood stated, and that she had bond fide paid, or secured to be paid, the several sums for which she claim ed an allowance," which, after due examination, passed by order of court."

This account was offered as conclusive evidence for the defendant on the issue. But the court instructed the jury that it was not con

United States v. Tyler. 7 C.

clusive evidence in favor of the defendant upon that issue; and further, at the request of the plaintiff's counsel, instructed the jury that the said record of the judgment, the inventory, and the two accounts of the administratrix offered in evidence on the part of the plaintiff, were conclusive evidence in his favor to prove the devastavit on the part of the administratrix, to the amount of the plaintiff's claim; to which instructions of the court the defendant excepted; and the verdict and judgment being against him he brought his writ of error

* F. S. Key, for the plaintiff in error.

[ *283 ]

• DUVALL, J. The account was only binding upon the [284] representatives of the estate, the distributees; and they might still open it in the general court. But the creditors are no parties to the settlement of the account, and cannot be bound by it.

There can be no doubt that the judgment against the administratrix, the inventory, and first two accounts were conclusive evidence of a devastavit.

MARSHALL, C. J. I believe that is the law throughout the United States.

The court is unanimously of opinion that the settlement of the account by the orphan's court is not conclusive evidence for the defendant upon the issue joined.

Judgment affirmed.

.

UNITED STATES v. JOHN TYLER.

[ *285]

7 C. 285.

Upon an indictment for putting goods on board a carriage, with intent to transport them out of the United States, contrary to the act of January 9, 1809, (2 Stats. at Large, 506,) the punishment of which offence is a fine of four times the value of the goods, it is not necessary that the jury should find the value of the goods.

THIS case having been submitted without argument

LIVINGSTON, J., delivered the opinion of the court, as follows:The defendant was indicted under the act to enforce the embargo laws passed the 9th January, 1809, for loading on carriages, within the district of Vermont, nineteen barrels of pearlashes, with intent to transport the same without the United States; to wit, into the province of Canada.