7 U.S. 241 - Dobynes Morton v. United States

THIS writ of error came up at last term from the district court of the United States for the Kentucky district, which, by law, has the jurisdiction of a circuit court of the United States.

C. Lee, for the plaintiffs in error.

The suit was originally brought by the United States against Lewis Moore, as principal, and Dobynes and Morton, as sureties, in a bond given by Moore, as a collector of the revenue.

The writ of capias ad respondendum was issued on the 12th of February, 1803, returnable to the 2d Monday of March following; and judgment was recovered by default, at the return term, on motion.

The error insisted upon was, that it did not appear, by the record, that the writ had been 'executed fourteen days before the return day thereof,' according to the 14th section of the act of congress, of July 11, 1798, vol. 4, p. 197.

The record contained a copy of the bail-bond given by Morton, dated the 11th of March, 1803; and a receipt from the jailor, for the body of Dobynes, dated the 12th of March, 1803.

The 2d Monday of March could not have been later than the 14th of the month.

Mason, for the United States, suggested diminution in this, that the writ was served on Dobynes and Morton, on the 20th of February, as appeared by the record of the district court; and obtained a certiorari.

But now, at this term, the return of the certiorari not showing any thing more than what appeared on the first transcript,

Breckenridge, attorney-general, admitted that the judgment could not be supported, as there was nothing in the record by which the return of the marshal could be amended, so as to show, that the writ had been executed fourteen days before the return day.

Judgment reversed.