Benjamin R. Lyon and others, plaintiffs in error v. James Auchincloss and Company

Benjamin R. Lyon and others, plaintiffs in error v. James Auchincloss and Company. Bail- was entered in the district court of tho'United States for the eastern district of .Louisiana', for a defendant, against whom a suit,was’ brought on certain promi'3-' sory notes. The bail having been fixed, procegdings.were afterwards commenced against them; and a defence was taken by them, on the ground that the plaintiff had made himself a party to a proceeding under the insolvent laws"of Louisiana, which'the principal had-instituted against his creditors, and'in which he had failed to obtain the relief allowed by those laws; a judgment having beeft given against him on his petition in the district court, in'which they were ihstitu ,ed, and in the supreme court of Louisiana, to which ho carried them by appeal. Held, that .if the.benefit of the insolvent laws had- been extended to the principal, before .the bail was fixed by proceedings against the principal, it might have become a question whether they were not discharged under the rule laid down by the Court, in. the case of Beers y. Haughtqn, 9 Peters, 329. But as the proceedings of the principal for the benefit of those laws, were dismissed on objections of the creditors; both in the district and supreme court of Louisiana;, the bail can claim no exemption from the obligations of their bond, on account of these proceedings. IN error to the district court of .the United States for the pastern district of Louisiana, This case was argued at the January term, 1837, by Mr. Butler, - for th’e plaintiffs, and by’Mr. Key, for the defendants; and was held’ under advisement until .this Court; an examination of the rules of practice established by the district judge of the United States of the district- of Louisiana, having been considered proper. The case is fully stated in the opinion of the Court. [MAJORITY — Mr. Justice M‘Lean] Mr. Justice M‘Lean delivered the opinion of the Court. This case isv before this Court, from the- district court for the eastern district of Louisiana, on a writ.of error.- An action was'brought by Auchincloss & Co.., against Nathaniel M. Riker, on certain promissory notes, amounting to twenty-five hundred and forty-five dollars. The defendant.was arrested on a capias, and gave bond, with sureties, in the penal sum of three thousand five hundred dollars; that, should-he be cast in the suit, he would pay the judgment, or surrender himself in execution to the marshal. At the May term, 1835,*a judgment, in favour,of the plaintififs> was entered in the case; ánd in June following,>a writ of fieri faciás was issuéd on the'judgment, which was returned, “no property found,” . In December, of the same year, a- capias ad satisfaciendum. Was issued, which was returned by the marshal, that “ the defendant could not he found.” And' afterwards', in February-terin, 1836, on motion of plaintiffs’ counsel, and on'showing to the court that a ca.,sa. had been issued and returned “non est inventus,” it was.ordered that the defendants’ bail, Abraham B. «Walker, Benjamin R. Lyon, and Pierre L. Baueher, and' Charles Gardiner, executors of P. P. Hall, show cause why judgment should not be entered'against them, &c. And at the samé term, B. R. Lyon, one of'the baií, appeared by counsel, and reserving to himself the benefit of all exceptions to the rule taken in the case, filed the following pleas, 1. He admits his signature to the bond sued .upon, but denies that it creates any obligation,. whereupon he files the general, issue, H. That the said Auchinclpss has made himself a party to the insolvent proceedings of the defendant, Riker, in this state,, and is bound thereby, &c, On the first of March following, the court having maturely considered the-rulé taken on the bail of the defendant, order and adjudge that the" same be made absolute; and a judgment is entered against the bail. - -In the course of the trial, the' defendants offered in evidence the record of a suit in the first- district of the state, entitled “N. M. Riker v/His Creditors,” to prove that plaintiffs had máde themselves parties .to the proceedings in the said suit; to the introduction of which re-' cord the'plaintiffs objected, on the following grounds 1. That if defendant were present, he could not avail himself" of said record; and that his sureties could not. 2...That the. defendants did not offer the record to prove the discharge of Riker by his creditors, under the state insolvent laws; and that it .could riot be offered for an) other purpose. 3. That it was admitted opposition had- been made in the state court by the creditors of Riker, which the court sustained; and that he appealed to the supreme court, where his suit against his creditors'was dismissed. That the record offered, contained only the proceedings-which .were had .in the inferior court; but the court-pverruled the objections, and admitted the record as évidence. And the counsel for the bail. moved the court that they be discharged, as it-appeared that Auchiñcloss, by his attorney, made opposition to the proceedings of Riker .against his creditors, as shown by the record in evidence; but.the court overruled the motion: and to this ruling of the court the defendants excepted. This proceeding against the bail is in conformity to .the Louisiana practice. By the record admitted in evidence, it appears that Riker, in .May, 1835, filed his petition in the. first judicial district court of Louisiana, representing his embarrassed condition, and his inability to pay his debts; and he prayed that a meeting of his creditors should be called, to whom a surrender of his property could be made; and that the relief given by-law- to unfortunate debtors, might be extended to him; A . schedule of the debts against him,-and of his property, and the debts due-to him, was -filed; and objection being made by his creditors, to the relief prayed for, it was refused by the court. And from this judgment of the-court, an appeal was taken by Riker, to the supreme court of the state. The result of this appeal is stated in the first bill of exceptions, as admitted by the parties. It appears, by a certified copy of the rules made by the district judge, .since .1824, that the insolvent laws of Louisiana have been adopted; but-this-was not done until subsequent to the rendition of the judgment against the bail in this case. This Court have had frequent occasion to consider the act of 26th May, 1824, which authorizes the district judge of Louisiana to make rules of practice; but until such rules shall be adopted, it provides that the modes of proceeding, in civil causes in the district court, shall be conformable to the laws directing the mode of practicein the district courts of the state. If the benefit of the insolvent law had been extended to Riker before the*bail were fixed, it might have become a question whether they were not discharged, under the rule laid down by this Court in’the case of Beers and others v. Haughton, 9 Peters, 329. But, as the proceedings of Riker against his. creditors were dismissed, on their objections, both in the district and supreme court; the’bail can claim no exemption from the obligations of their bond, on account of these proceedings. A,judgment has been obtained against Riker, which he has not satisfied, nor surrendered himself in discharge of his bait; and they have taken no steps to discharge themse'yes, either by paying the judgment or surrendering their principal. The judgment against the bail must,, therefore* be affirmed, with costs; This cause came on to be heard, on the transcript of the record from the district court of the United States for the eastern district of Louisiana, and was argued by Counsel. On consideration whereof, it is now here adjudged and ordered by this Court, that the judgment of the said district court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per cent, .per annum.