The Bank of Columbia vs. George Sweeny

The Bank of Columbia vs. George Sweeny. The Court refused to issue, a mandartms to the Circuit Court for the county , of Washington, commanding that Court to strike off a plea Which the Court had permitted the defendant to put in, and'to compel the defend- , ’ dant to enter another jilea, which tile-plaintiffs’ counsel deemeelthe pro- - per plea; under the provisions of an Act of the legislature of Maryland, ' upon which the'proceedings were; founded, incorporating the Bank of' Columbia. ' Messrs. Jónos and Key, moved t.he Court for a mandamus Xa-be directed to the. Circuit Court of the United States, for the county of Washington, in the District of Columbia; command-..' ing them to have a certain issue -joined,-which issue had been tendered in á proceeding in that Court against Géptge Sweeny,, and in'which the Bank ofColumbia were', plaintiffs. '-George-Sweeny being indebted to the Bank of Columbia,.upon a,pro--missory note, the President of the bank, in conformity with the provisions of the statute of Maryland,- incorporating .the bank, • passed iml793, (Acts of 1793, voh 20;) instituted’proceedings in the Circuit Court, under which, by virtue of a Capias ad re-spondendum, he was arrested by the marshal; ánd'he applied to.' the Court to be allowed, under the authority of the 14th section of .the Act incorporating the bank,'to “ dispute” the debt claim.--, ed by the. bank. ' The Court thereupon ordered an-issue tó be joined, and.the attorney of the bank- being directed to. draw a declaration, offered one'tendering ah-jssue upon the allegation that the debt-mentioned in the execution was due. To this issue the attorney for the defendant objected, and he claimed the right to put -in issue the plea of the statute of limitations. The Circuit Court field,' that the defehdant was entitled to avail himself of the stá- ■ tute, áfid that-the .attorney of the bank should file a declaration;! in the common form on-the promissory note'mentioned in-the -■ execution, to which the defendant might plead the statute of . limitations, as running from the time.of payment mentioned in the .mote; and that-the bank should reply,.spas to make up the issue under the ptátüte..of limitations. The Court,refused to-. make up the issue offered, by the bank, or to mak,e up the issue' in any other' way than as stated. - 'The plaintiffs claimed, and by this motion sought to -main-' • tain'their claim, to have an issue joined as offered by the bank, ’ upon the-debts being due, as provided in the statute. The following, are.the'provisions of the 14th section' bf- the charter, upon which the proceedings were had,, and by which \ the plaintiffs insisted they had a right to the proceedings they had adopted.— .“And, whereas it ^absolutely ne'cessary that .debts due to the .said bank should be punctually paid, to enable, the directors-to calculate with certainty and'precision on meeting the demands that may.be made upon them, Beit enacted, that whenever any person or'persóns áre indebted to. the said bank for .moneys borrowed by thefn, or for .bonds, bills or notes, given or endorsed by them, with ah express consent in .writing that they may be made negotiable .at the said bank, and shall refuse or neglect to make payment at the time the samé becomes due, the President shalh cause a demand in writing on the person of the said delinquent or delinquents,, having consented as aforesaid', or'if not to be found, have the same.left at his place of abode; and if the money so due shall- not be paid within ten days after such de» ■ mand made, or notice left at his last place of abode as aforesaid, it shall and may be lawful for the President, at his election, to write; to the cjerk of the general Court, or of the county in which the said delinquent or'delinquents may reside, or did at the time he or they contracted the debt reside,-and send to the said clerk the bond, bill or note due, with' proof of the demand made as. aforesaid, and order the said-clerk to issue a capias ad satisfaciendum,, fieri fadds, or attachment, by way of execution, .on which the debt and costs may 'be levied, by selling the property of the defendant foF the sum or sums of money mentioned in the said bond, bill ór note; and- the'clerk of -the General Court, and the clerks of the several County Courts, are hereby respectively required to issue such execution ór executions,, which shall be made returnable; to the Court whose clerk shall issue the same, which shall first set after the issuing thereof, and. shall bé as valid, and ah-effectual in law, to all intents .and. purposes, as if the same had issued on judgment regularly obtained in the ordinary course of proceeding in the said Court; and such execution or executions shall not be liable to be stayed or delayed by any supersedeas, writ.of error, appeal,, or injunction from the chancellor; provided always, that before any execution shall issue, as ‘aforesaid, the President of -the bank shall make an oath, (or affirmation, if he shall be of such religious society as allowed by this staPte to make .affirmation,) ascertain-, ing whether the whole or what part of the debt due to the bank on the said bond, bill or note,is due; which oath or affirmation shall be filed in the office of the clerk of the Court frorrtiwhich the execution- shali issue; and if the defendant shall dispute the whole or any. part'of the sáid debt, on the return of the execution, the Court before whom it is returned shall and may order an issue to bé. joined, and trial to be' had. the same Court at which the return is made, and shall make such other proceedings that justice may be done in the speediest manner.” The case was argued by Mr. Jones and Mr. Key for the plain* tiffs at great length, upon the meaning and objects, of the section, and that it authorized the demand made by the bank to ■ exclude the plea of the statute of limitations; and contra by Mr. Swann, and the Attorney General for. the defendant.. The Court, in their decision, did not take notice of the arguments of counsel, as they considered the case not such as entitled it to the summary proceeding demanded. [MAJORITY — Mr. Chief Justice Marshall,,] Mr. Chief Justice Marshall,, delivered the opinion of the Court.&emdash; This case arose under the provision oLihe Act of the legislature of Maryland incorporating the Bank of Columbia, which authorizes summary process for the collection of debts due to the bank. That Act allows an execution against the person of the debtor, to issue in the first instance, upon the application of the president of the bank; but'it also authorizes the'Court,, if Upon the return of the execution the defendant‘s dispute the debt,” to order án issue to be made up', &c. to try the action. In tlie present case, the Circuit' Court, did not refuse to direct such ¿n issue to be made up; which had ■ they refused to do, a mandarmfs would have be^n the proper process to compel that to be done, which the Act requires. But the Circuit Court did direct an issue, and allow a plea of the statute of limitations.. The application now is, that the Circuit Court be ordered to withdraw that issue, and to direct a different issue,to be made up, according to what the counsel for the bank supposes to be the'proper.construction of the Act. We think this is- not a proper cage for a mandamus.. It does, not differ in principle, from 'any other, ca.se in' which the party should plead a defective plea, and the plaintiff should demur to it; in which case, there is no .doubt that the revising power of this Court could be exercised only by a writ Of erx-or. If this motion could now prevail, it would be-a plain evasion of the provision of the Act of Congress, -that final judgments only should be brought before this . Court for re-examination.This.case might- still be brought' before this.Court by a writ of error, notwithstanding any opinion expressed' upon the mandamus, .and the samé question again be-' discussed upon the final judgment.' The .effect therefore of this mode of interposition, Would be to retard' decisions upon questions which were not final in the. Court' below, so that, titó same' cause might come before this Court many times, before there would be a final judgment. The Court is therefore of.opinion that this is not a case for a mandamus~ and the motion is denied