Dobynes and Morton v. United States

*Dobynes and Morton v. United States. Summary judgment. To support a judgment on a collector’s bond, at the return-term, it must appear by the record, that the writ was executed fourteen days before the return-day. 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. 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 11th, 1798. (1 U. S. Stat. 594.) The record contained a copy of the bail-bond given by Morton, dated the-11th of March 1803 ; and a receipt from the jailer, 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 certioriari not showing anything 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. * C. Lee, for the plaintiffs in error. [MAJORITY] Judgment reversed.