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SOUTHERN DISTRICT OF OHIO.

Fallis, Brown & Co. v. McArthur & Berry.

whereas, in this, the rights and interests of all the parties are directly in issue; in the former, Campbell was the sole plaintiff, and Chapman and Carter the only defendants; in this, all the original owners of the boat are libellants, and Campbell the respondent.

A decree will be entered adjudging Sutton, Griffith & Co. to be the owners of three-eighths of the boat; Donald Campbell, three-eighths; Levi Chapman, one-eighth, and Edward C. Carter, one-eighth; and possession will be given accordingly. The cash payment for the boat, together with the notes given, will be brought into the registry, to be disposed of hereafter by the order of the court, in accordance with this opinion. As to the profits made by the boat while Campbell had possession, unless the parties agree as to the amount, a reference to a commissioner will be necessary.

(CIRCUIT COURT.)

FALLIS, BROWN AND COMPANY v. MCARTHUR AND BERRY.

If, in a joint action against two defendants, both residents of another State,

brought in an Ohio court, as to one of whom the process is served, and as to the other, returned not found, the party served removes the case to the Circuit Court of the United States, pursuant to section 12 of the judiciary act of 1789, the plaintiff is entitled to process from that court

against the defendant, who was not made a party in the State court. In such case, the plaintiff may proceed against the defendant, who has been

served with process, as the Circuit Court has jurisdiction under section 1 of the act of February 28, 1839, and may hear and decide the case as against such defendant, without making the other defendant a party to the suit.

Collins & Herron, for plaintiffs. OPINION OF THE COURT:

This suit was brought originally in the Superior Court of Cincinnati, and process issued jointly against both of the defendants, who, it appears, are citizens of the State of Kentucky. The writ was returned served, as to the defendant

Fallis, Brown & Co. o. McArthur & Berry.

McArthur, and not served, as to the other defendant. McArthur entered an appearance in the Superior Court, and filed his petition for the removal of the case to this court, pursuant to the act of Congress. An order was made

. for the removal, and the papers have been duly filed, and the case docketed in this court.

An application is now made by the counsel for the plaintiff, in the nature of a motion for leave to issue a summons against the defendant Berry, to make him a party in this court. The question whether process can issue against him so that the case may proceed here, against both defendants, depends on the proper construction of section 12 of the judiciary act of 1789, 1 L. U. S. 79, which provides, in substance, that where a suit is brought in a State court against a citizen of another State, if the matter in dispute exceeds five hundred dollars, the defendant may, at the time of entering his appearance, file his petition for the removal of the case to the Circuit Court of the United States; and on giving satisfactory security that the case shall be entered in that court, and special bail given, if required, all further proceedings in the State court are suspended. And when so entered in the Circuit Court, it is declared it “shall then proceed in the same manner as if it had been brought there by original process.”

This motion presents a new question of practice in this court, and no decisions in other Circuit Courts bearing upon it have been referred to. We think it clear, however, that under the provision of the statute just noticed, it is the undoubted right of one of two joint defendants, sued in a State court, to remove the case to this court; and where but one defendant has been served with

the may be removed upon his application. The act of Congress as to him would be wholly useless and nugatory in any other view. And having this right, it will follow necessarily that the plaintiff may prosecute the suit against both defendants here. Otherwise he would be

process,

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wholly frustrated in seeking his remedy by a joint action against both; and when brought into this court by the act of a defendant and against his own will, would be compelled either to discontinue the action or proceed against one of the defendants only. This would be giving to a defendant an unfair advantage not intended by the act of Congress, and not required by a just construction of its language. In providing that when removed to this court, the case shall proceed as if originally brought here, the implication is clear, that if necessary, process may issue to make the defendant who was not served in the State court a party. It is analogous to the case of process issuing against two defendants in a suit in this court, but one of whom is brought in by service. It is the uniform practice in such a case, and is a matter of course, to issue an alias writ to make the other defendant a party. So, under the statute, the proceedings in the State court are to be viewed as making one defendant a party; and the case being thus in this court, it is the right of the plaintiff to have process against the other defendant.

There can be no question that under section 1 of the act of Congress of February 28, 1839, 5 L. U. S. 321, it is competent for the plaintiff to proceed in this court against the defendant McArthur alone. That section provides, that if several defendants are sued in a court of the United States, some of whom are not residents of, or can not be found within the district in which suit is brought, the court may take jurisdiction, and proceed to trial and judgment against those served with process. But the plaintiff in this case is not bound to proceed under this statute. If he prefers to bring in the other defendant by process from this court, his right to do so scarcely admits of a doubt.

United States v. Dennis.

(CIRCUIT COURT.)
THE UNITED STATES V. JOHN J. DENNIS.

A recognizance is sufficiently certain if it sets out an act punishable by the

statute without any of the particulars. Where an action of debt was brought on a recognizance, the condition of

which was, that the defendant should appear “to answer to the charge of stealing from the mail of the United States, contrary to the statute of the United States, in such case made and provided :" Held, that the felonious or criminal character of the act was charged with sufficient

certainty. The mail of the United States embraces everything which may by law be

transported or conveyed by post. John O'Neill, District Attorney, for United States.

Lee f Fisher, for defendant. OPINION OF THE COURT:

This is an action of debt on the recognizance of the defendant as bail for the appearance of Henry Fulkerth, who has been charged, before a commissioner of this court, with a violation of the mail of the United States, the said Fulkerth being a postmaster. The commissioner required the accused to give bail, and, in default thereof, he was committed to jail. He subsequently appeared before the district judge, and, on his application, was admitted to bail and discharged from custody. The defendant entered into a recognizance for the appearance of the accused person at the October term of this court. It is averred in the declaration that he failed to appear, and that the defendant was called and duly defaulted. A general demurrer has been filed to the declaration, and the exception relied on is, that the recognizance does not define or state any crime made punishable by an act of Congress and of which this court has jurisdiction. The condition of the recognizance is, that the accused person shall appear at the then next term of the Circuit Court of the United States “to answer to the charge of stealing from the mail of the United States, contrary to the statute of the

United States v. Dennis.

United States, in such case made and provided, and also such other charge or charges as may be exhibited against him.” It is insisted that the allegations of “stealing from the mail of the United States, contrary to the statute," etc., are vague and indefinite, and do not import any specific crime for which the accused is to answer. The same certainty is not required in a recognizance that is required in an indictment; it is sufficient if it sets out an act punishable by the statute, without any of the particulars. It is very clear that a charge of stealing from the mail of the United States imports a crime without any statement of what was stolen. The mail of the United States embraces everything which may by law be transported or conveyed by post, and every unlawful taking from the mail of anything which constitutes a part of it is a crime. There is, therefore, no ground for a presumption that stealing anything, whether a mere letter or a letter containing money, or any paper or any other thing designated in the statute, can be an innocent act; it necessarily imports a crime. But when, as in this recognizance, it is added that such stealing was "contrary to the statute of the United States in such case made and provided,” the felonious or criminal character of the act is charged with sufficient certainty. A case decided in Kentucky, reported in 3 J. J. Marshall, 641, has been cited by the defendant's counsel, where a recognizance for“ gaming” was held bad by the court for uncertainty. That decision was right for the reason that gaming, as a general term, did not necessarily import a crime. It was only a crime when committed under the circumstances stated in the statute ; under other circumstances it was perfectly innocent. It was necessary, therefore, to set out the game and the circumstances. If the charge had been “gaming contrary to the statutes of the State of Kentucky,” it would have been good. But as before stated, no state of facts can be conceived of, in which stealing from the mail of the United States can be an innocent act—it implies a crime.

The demurrer will therefore be overruled.

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