Olney versus Arnold

Olney versus Arnold. THIS was a wat of error on a judgment given in the Sit- . perior Court of Judicature, court of áflize arid jail deli-livery, for the county oiProvidence, in the State of Rhode IJl-t and; and the cafe, appearing, on the record, was as follows' 'Olney, the Plaintiff in error, was the colledtor of impolts for. Rhode IJland; Arnold, the 'Defendant in error, was owner of the' ihip Neptune; arid a citizen' of the name of Bexter, as the declaration ¿Hedged, was owner of the cargo of the' Ihip ; which arrived from Surinam, at Providence, about°4 o’clock' P. M. on the (>th of. November, 1792.'' On that day, the parties applied for a permit"to landthe cargo, ánd. offered bonds to pay the duties; but the colleofor refufed, or negledted, to accept the bonds and grant the permit. On the 7th of November, afecond ápplication was made for a permit;, and bonds, actually executed, were tendered for the payment of the duties ; but the collector again peremptorily' refufed to'accept the bonds, or to' grant the permit; in confequeuce of which the veflel, with the cargo on board, remained at á heavy expence from the'ótb to the 13th of November-, and Arnold laid his damages at ^200. > Qlney, the Defendant in the court below, pleaded that by the Aift'fe&ion of the adt of Congrefs, paifed on the 4th of Augujl, 3:790, “ to provide more effectually for the’ coll eft ion of the duties, &c ” it is declared that all duties on goods, wares and merchandise imported, ihall be paid, or fecured tobe paid, before a permit ihall be granted for landing the fame and that “ no perfon whofe bond for the payment of duties is due and unfatisfied, ihall be allowed a future credit for duties, until fucli bond ihall be fully paid, Or difchargcd that on the 17th of January, 179•¡f Arnold being indebted for duties, gave a bond for the amount, payable on the 17th of May, enfuing ; that on the 5th of November 1792, the term for payment of the bond was elapfed, but the fame then remained unpaid and undif-charged ; that Arnold was the real owner of the cargo, but had fraudulently transferred it to Dexter, in order to obtain a credit at the Cuftom-houfe; that, though Dexter had tendered a bond-on the 7th of November, it was rejected by virtue of the recited aft of Congrefs ; and that a permit had been refufed until the duties of the cargo were paid, or Arnold's old bond was difeharged. To this plea-the Plaintiff below demurred, and ailigned the following caufesofderhurrer: iff, Becaufe the matters contained in the plea might be given in evidence, if at all, under the general iffue ; and they amount to no more than the general iffue- 2d, Becaufe the plea ftates the property of the cargo to • be in Arnold, and does not traverfe the property of Dexter therein. ■ 3d, Becaufe it does not appear that the old bond given by Arnold was unfatisfied after the 5th of November 1792. 4th,.Becaufe the bond given by Arnold was for his'own proper debt, and the-bond tendered.by Dexter was for his own proper debt: And 5th, b.ecaufe the plea is inccmfiftent, uncertain, not •iffuable, and wants form. The .Defendant joined in demurrerand, thereupon, the Court of Common Fleas, for the'Courrfy of Providence, decided that the plea.was afuiKcient bar to the aftioiV; and, in December X792, gave judgment for the Defendant accordingly. From this judgment the Plaintiff appealed to the fuperior court of judicature, where it was adjudged,-in December 1794, that the plea in bar was not fufficient; arid the caufe was remitted-to the County Court for trial. On the trial, the Jury gave a verdift for the Plaintiff, damages /13 ef. With colts:' and the Defendant below brought,die prefent writ of error, to .remove the proceedings into the Supreme Court-of the United States ⅛ the conftruftion. and validity of the aft of Congrcfsj under which the Defendant juftified, being involved in the decifion of the State Court. Confutation of the United States, art. 3. f ?. Laws of the United States, 1 ml. -ft. 6g. f. 25. Two leading queftions were made in this cafe? iff, Whe-r • ther the plea was.a fufficient' bar to the a&ion ?—particularly on the ground of the third caufe afligned upon the demurrer; as the'Defendant only alledged Arnold’s old bond to be unpaid an the $th of November,. whereas he admitted a tender of a bond for' the duties on the fh of November. And 2d, Whether the fúperior court, on whofe judgment the writ of error was brought, or the General Affembly, was the higheft Court of Law or Equity of the State of Rhode If and, in which a decifton of the fade could have been had ?■ The firft queftion was argued at the laft term, by Pringle arid Dexter, for the Defendants in error, and by Lee, Attorney General, for the Plaintiff in error: but the court declaring it to be unrieoeffary to give any opinion on the principal cafe, till it was decided, whether the record was regularly before them, directed the fecond queftion to be difeuffed at the prefent term; when Lee, Attorney General, again argued for the Plaintiff in error;- and Ingerfoll for the Defendant. ■ The-Attorney General,, in contending thaqthe writ of error was well brought, ftated, that there could be no doubt, that this court had jurifdidlion in the prefent caufe, as it appeared-upon the record,- that the conftruftion of an a£fc of Congrefs, under which the colledlor juftified, had been drawn into-quef- ' tión, and no other error could be afligned. He faid, that there were two obvious reafons, why the Legiflature of Rhode If and, could riot be confidered as the court contemplated by the law : for, in the firji place,' it mnjl be a court of law or equity , in-which a decifton of the fuit could be had. A decifton imports-a final determination between -the litigants; and not a partial - adjudication, which fettles one point of the controverfy, and refers the reft to another tribunal. Though, therefore, the Le-giflature fhould be veiled with an equitable power, to examine the proceedings of a court of law, and, if it thinks proper, to. direót a new trial; this cannot be regarded as conftituting a court of law, yvkhin the meaning of the a£l of-Congrefs. But in. the fecond place, it muft be a court of-law or equity, from which a writ of error could be obtained. The 25th. feci, of the judicial a.dl requires, that the citation without’ which," a writ of error cannot be available, fhould be figned by the Chief Juftice or Judge, or Chancellor o{ the court, rendering or pafs-!ng the judgment or decree complained of; and rio fuch officer is a conftituent part of the lcgiflaturef." The jurifdiction of the general aflembly in .matters of law, depends on, an adt of their own body.' Laws of Rhode ijland, p. ' But, however extenfive this power may appear to be; ic i¿ wholly of an equitable kind, The Legiflature may* like a Chancellor, review the determinations of the courts of law, and di~ re£t the iflüe to be again tried; but it is not itfelf a court in which an ultimate decifion can be had. The jurifdic!tion ~f the ~ourt, on ~,hofe judgment the prefent Writ of erFor is brou~ht~ is of a very different defcri~,tion, in it~ conftitt4tion, as well as in the effea of its adj udications The appeal was carried horn the inferior court into that court, as to the higbeft court of common law; and is, thence brought regularly hither. But if any doubt fhall exiif upon the fubjedt, the cohíh uólion fhould be in favour of. that general principle, in the policy of all well regulated, paiticuhriy of all republican, governments, which prohibits an heterogeneous union of the legiflative and judicial departments. Ingerfoll, in reply, clafied his.arguments'.under three points of enquiry:—-ift. Is the Legislature oí-Rhode Ijland a court? 2d. Is it a court of law r—"and, 3d. Is it a court capable of giving a decifion within the meaning of the a£t of Congreis ? 1. By the a£t of the general aflembly, the Legiflature of Rhode Ifiand is exprefsly conftituted a court, fuper-eminent in its jurifdiction; though, perhaps, novel in its formation and efFcdts. The charatSteriíHc of a fuperior court of law, .is the power of calling parties before it, in order to affirm or reverie the judgments of inferior tribunals. This cannot' be done by a court of equity; nor can it be done by a legiílativé body, in its ordinary opa.city: and yet it can be done by the general aiTembly of Rhode IJland., fitting ao a court of law, under the' authority of a legiflative a£t. For fuch occafions, a regular docket is kept; the caufes are entered; the parties’ are-called upon in the courfe of the term; a clerk is employed; and the judgment of tjie inferior court may be reverfed. If is true, that the general afiemBly cannot try a fa£b; but neither can the Houfe of Peers; .yet, that is, undoubtedly, the higheft court of juftic.e in Great Britain,r It is, likewife, true, that the at? bt 'Rbvde IJland does not fay any thing refpe&irtg the power of the general affembly, to affirm a judgment; hut if they refufe to interfere upon any petition, is not the refufal, virtually, an affirmance of the judgment, of which the petition complains?' IT then, the powers of a court are thus veiled in the general affembly, mere abftradt confiderations of policy, cannot be allowed, judicially, to obftrucl or defeat their exercife. a. And if the general affembly is a court, its jurifdi&ion is dearly of a common law defcription; in the nature of a writ of error, to revife and corred: the deci’Gons of inferior common law courts. 3- The a<⅛ of Congrefs provides, that the removal of a cauie from a State Court, in the fpecified cafes, fhould only be •“ from a final judgment or decree in any fuit, in the high'eft court of law or equity, of a ftate, in which a decifion in the fuit couldbé had” Now, Olney might, by petition, have obtained from the general aflembly, a cnftruclion on the ail of Con-grefs, which he pleaded in bar to the a ilion brought againft him. The name or.title of the officer, who attefts the procefs cannot be materialwhoever was the preftding magiftrate, ■ when the general aflembly fat as a court*, might authenticate the citation, or it might be granted'by a Judge of the Supreme Court. Suppofe, indeed, that the judgment were to be affirmed here, Olney might ftill petition the Legiflature, and obtain a revería! and new trial; unlefs it can be maintained that the decifion of this court will work a repeal of the law of Rhode Ifland. The caufe was held under advifement, till the 8th of Augufí, when the Chief Justice delivered the following decifion on the point laft argued. ‘ , Ei/Sworth, Chief j'nJUcc. As this is a queftion of- law, it is not material to enquire, whether it was the fuperior court of equity. - The ait is in the following words : “ An ait directing the method of preferring petitions ujtto the general affembly", and of anting thereon. Be it enacted by the general affembly, and by the authority thereof 3.t is enafted, thát whenever any perfon or perfons lhall prefer a petition to the general affembly, praying, that any judgment, rule of court, or determination whatever may be fet ,alide, and that execution may be Hayed, he or they fo petitioning lhall, at ijcaft three weeks before- the feffion of the general affembly to which-fuch petition lhall be preferred,deliver and lodge his or their petitionin the fecretary⅛ office • and giving bond in the faid office with oriefufficientfurety, in fuch fum as he, the fecretary, confidcring the nature of fuch fuit or executions lhall think meet: the condition of which bond lhall be for the payment of ail lawful coftsand damages, which the adverfe party lhall fuftain by means of preferring fuch petition ; and, that thereupon, the fecretary lhall iffue a citation,' for the adverfe party to appear (if he or they lhall, think fit) at the feffion of the general aflembly, to which fuch petition lhall be preferred, te Ihevy cáufe why fuch petition Ihould not be granted ; and the adverfe party mall be ferved with fuch citation, and a copy of fuch petition, by the iheriff of the county, or his deputy, where he or they' may dwell, ten days at leafl: before fuch feffion of the general afff -fnbly 5 hnd if fuch perfon or perfons cannot be found by the Iheriff or his deputy, then, the leaving a copy of the petition and citation at the ufual place'of his'or their abode, lhall be deemed a good fervice ; and the iheriff or deputy lhall make return of ail his proceedings to the clerk of the lower houfc, at the firft opening of the general aflembly. And that when any petition ihall be. called for trial, if there be not a proper return made bv the iheriff or his deputy, that the adverfe party hath ■ been duly notified as this aft requires, fuch petition lhall be immediately difmified. And be it further enacted by the authority aforefaid, That when any petition lhall be received by the general affembly, the granting the prayer whereof may by any means relate to or concern the interoft, ' property, or charaftef of any other perfon or .perfons whomfoever, that in fuch cafe every fuch petition lhall be referred to the next feffion of affembly, and the perfon .or perfons fo petitioning, lhall within ten days after the rifing of the affembly, give bond in manner as afore diiefted; and all perfons fo concerned lhall be duly ferved with a copy of fuch petition, and the vote of aifembly thereon, and be cited in manner as aforefaid\ and if the perfon or perfons fo petitioning fljail neglect to give bond as aforefaid, then fuch vote or order of the Gene- ■ ral Affembl? referring fuch petition, lhall be void and of no effeft. And be it further enafted' by the authority aforefaid,' That at the beginning.bf every feffion of the General Affembly) a time lhall be aligned for the heariiig and determining all petitions pending before them , and the Clerk of the LowefHoufe lhall make a docket-of all fuch petitions. in -the lame maimer as the CleVks of the Courts of Common Pleas ’ do of aftions,- always noting in the margin the time when caoh petition was filed or received ; which slcrket lhall be let tip in view in the Jloufie Mrhere the Aflembly ihall lit. with a note at the bottom thereof, of the time appointed for their being bearci: That each petition /hall be called for and determined in its proper courfe as it ftands upttn the'docket ; and if the Petitioner.being called, doth not appear, his petition ihall be immediately difraiffbd, but if he doth appear to enforce his petition, and’ the respondent upon being thrice called, Jhali not appear, the prayer' of tbd petition /hall be granted, if the fame be reafohable. And be it 'further enatftrd by the authority aforefaid, That no petition ihall be received by the General Aflembly, except the Petitioner ihall pay the fees eitabliihed by law ; rand that the fame cofts be allowed and taxed' upon petitions preferred to the 'General Aflembly, in all refpeifts and in every particular as are allowed by law,-in cafes before the inferió Courts of Common Pleas ; and the bills of cofts ihall-be taxed by th'e Clerk of the Lower Houfe, and allowed by the Secretary : That the Secretary Jhali grant execution for all cofts, returnable. ⅛ the next fucceeding General Aflembly And that the Secretary and the Clerk of the Lower Houfe,'ihall be allo.wed the fame fe.es, in all re-i'peifts, upon petitions as are1 allowed to the Clerks of the Superior-Court of Judicature in catties'before the faid Court. ■ And be it further enatfted by the authority aforefaid, That when any ft aw trial ihall be awarded by the General Aflembly, to any perfon or perfons, the party obtaining fuch new trial, ihall pay all lawful cofts and 'damages that he or they may have put the adverfe party to, in defending agairtft fuch petitions, tinlefs he or they ihall upon fuch netfr trial obtain fome alteration of the former judgment, in his or. their favour. ■ And be it further enafted'by the authority aforefaid, That when any perfon or perfons ihall fuftain -any damage by reaibn of any .petition preferred to the General Aflembly, concerning which bond ihall have, been entered into as aforefaid.: the Secretary ihall deliver ftich bond to the perfon or perfons fo aggrieved, who may. bring.a fuit on fuch bond againft the perfons who gave the fame: and tbs Judges'of the Court where fuch fait ihai). be brought, are empowered to hear the parties concerning all matters of damages, as herein before exprefled; and on hearing .inftly and equitably to determine the damages the party or parties complaining hath or have fuftained by flaying the execution or other proceedings in'fuch caufe, or granting a new trial therein; and a fib to reduce the fum1 mentioned in fuch bond, to juft damages and to award execution accordingly. And be it further enaéle'd by the authority aforefaid, Thar.every per-lón who (hall prefer a petition.to the General Aflembly, for an ait of infnlvency, ihall exhibit therewith a juft' and true inventory Of all his-•rea) and perfonal eftare, and alfoof what eftate he ntav have'in rever-iion or" remainder, which ihall be fworn to before an'aflittant juftice, or warden in the county wherein the petitioner ihall dwell or be confined ; and if fuch petition be received, the inventory (hail be lodged with the Clerk of the Lower Houfe, who' iliall give copies thereof to jmy creditor requiring the, fame Í And if fuch petition be finally granted, the Clerk of the Sapeiinr Coarr. in the county whe're the petitioner luau dwell or be confined, thall notify the cret~itors to appear, befoi e the 3 udgcs of the f~tId court, to n+n~inat~ c~rnmiffioocrs. &`c~ by an adveicifement, to b~ef~rted three wøeks fucceffiveiy~int~e feveral papers, where the principal creditors live. 1~rovide~t neverthe~ei~, and he it tuxther enaCted by the auth~n'1ty aforef~id, T1iat~a11 matters and re~u1arions in this a~i, he ~xtended to private petitions oaly, between parryand parry, any thing h~ein before contained to the contrary notwithi~az2ding. The Attorney Geñ~ra1 ~eferred.to t~he jaws o~ 1~.hode rf1~d, co-t&-~ ftitssting the fupe~iorand i~iferior courts, which it is rhou~ht expedi~n~ Co lnierc'aLiargc oy ~vay ot 11iu1t4'atiofl tO tOe cale. ,"J~n a~t for the eftab1iihineritoi~ Saperi-or Uo~irl. ot~Judicoi~ure, C@t~r~ of Affize and Geaera~ Gaol Delivery, in and througnou~ th~ C~Iony~. i~e it enaCted by the ~en~raI AiIenl.bhy, anti ~y the aut1sor1~y thereut .~t is ei~a&ed, That there thall be a S.pperior Court ofJudica'ture, Court of !Jft~e, an.ct ~enera1 Gaol DeliVer~, over the whole UoiOoy, tor the re~tiktr hearing arid trying all pleas., real, perfopal, and mixed, ~tud a1Lp~eas c~f the Crown ; a~fo all .matte~ià which refpe~ the cot~ferv~-don of the peace, and puniIhrnent of offenders, whatever ~ircu\\n1tan-. ces may atEenci luCti matters or timings, wiSeriser arittlig natweeniparty aiid party, refpec!~ng debt, comctra~ right of freehold, dacuacc~s. tic pelloflal in] ury, or wnerner between ilie sing ano Ills lubjeCts, at ii~i~ed in natute ;and whether brought in laid court byappeal., writ ot'r~-view, wI:it or error, (.r~tzO~a~I, Or Ott.~Crwiie as the law directs eoOrt uliall ccitifif~ of one Chief jnf~ice or jud~c, and ~iur alThciate o~ afliftant juftic~s or Judges, to be appo.mted and ~hofcn by the Gen~r~ .4Jflnibly, annua]ly, for that end and purpofe, any three ~f ~whoin IhaJ be a quorum, who (ball be cocnmiffioned for the difcharge of tKei~ of]jcc and (hail thereby have thefarne power aud authority, in all mitt ters aisci thiogs in this Colony as the court of Cosamon Pleas, ~ing~s Bench or Exchequer, have, or ought to •hav~, in that part of Gitst Britain herefore called England and be empowered to give judg- 131e11E Ill au matters auuu LJ1JIJ~;s ucroie rlieLp cognizaule, aua to a~Xau~ CXCCUtIOfl ~iie~eon ; and ~u1ih to make 1~u~h n~ceWary rOles ofpracti~e, to them, i'~om time to time, 1h~I1 be tbos~ght needful, for the bet-. t~r regu~at1ozi ot iucli Coui~, and the. advantage of 1ii~ Majefty's fub~ In that fuch rules he nor repo~nantto any known laws. And Iflar there be chofen annually by the General 4flènbly, one Clerk in each county tOT jab court, WhO flmIl conf~ant~y attend the 1~tting of füc1~ co-urtin the refpedive counties for `uhichthey thall be chocet-i, fha~1 keep the •fe:il ot~ the court, and make fair records ahd entries of ch~ jud~men~s and ~voceedings nf the faid court, and do Sand perfbrm aji ~thcr things which IbalI fall within thcjr faid oI~1ce and duty. And that that ~te laid (Uerks luau have tile lame p~wet and authority offuirog~tin~ and appomting deputies ~uider them, in the fame ma~ner as the .of the feveral inferior Courts of Common Pleas and General Seilions ..of the Peace have by law, .and ihall be alike accountable for their doings', and thru fuch deputies fhall be. fworn’ before th.e faid Superior Coiirt, or one of the Juftices thereof, for the true performance of his duty. And be it further enacted by the authority aforefaid, Thar the faid 'Superior Court of Judicature, Court of Afiize and General Gaol Delivery, in and thrpughout the Colony^ fliall annually meet and. fit at the following places and times,' viz. at New Port, within and for the county of .New Portion the flrft Monday in September, and on the firft Monday in March, at Providence, within and for the couhty of Providence, on the third Monday in September, and on the third Monday in- March, at South Kingftown, within and for the' county of King’s •county, on the firftMonday in Otftober, and on the firft Monday in April, at Briftoi, within and for the County of Briftol, on the fecond Monday in October, a^nd on the fecond Monday in April ; and at Eaft Greenwich^ within and for the county of Kent, on the third Monday in October, and on the fourth Monday in April. And that both the Grand and Petty Jury in the feveral counties, fhall give their attendance at* fáid court, on the fecond day of the court’s fining, by nine of the clock in the forenoon :-and in cafe of none'appearance of a fufficicnt number, fuch •juries fhall be filled up dstalibus cb cuwjidntiLus^ as at the inferior Courts of Common Pleas and General Scflions of the Peace, by the Sheriff or his deputy. And be it further enaéted by the authority aforefaid, That in all cau-fes brought by appeal from any of the inferior Courts of''Common Pleas General Seilions of the Peace, unto the laid Superior Courts of Judicature, Court of ■' ífize, and General Gaol Delivery, fuch bonds ihall be given, reafons filed, and atrefted fiopies brought up, and all fuch other regulations obfer-ved for bringing forward appeals, as are contained and directed in the sifts, £01: eftabliihing fuch Courts of Common Pleas and General Sejfioris of the Peace. .And that'in any appeal from the judgment,of any inferior Court of Common. Pleas, to the faid Superior Court of Judicature, in civil actions, both packs fhall have the benefit oftany new or further evidence relating to the cafe. And be it further enaéted by the authority aforefaid, That when any perfon Ihall be found^guilty of any crime by the Petit Jury, at' any OuLvrt of General Scifiohs of the Peace, for which he fliall have been there Cried by original procefs,- and Jhaíl appeal from the feñtence or judgment given on fuch verdiil to the faid Court of Afiize and General Goal Delivery, he» fhall there be duly heard thereon, by the court, who may alter fuch fente.n'ce in fuch manner as to them ihall appear agreeable 'to law, and according to fuch dilcreiionary powers as aie veiled in them;’ but ihe Appellant fhall not in virtue of his appeal, have another hearing on the merits, or iffuc in fact, before another Jury,' ai the faid court'appealed to: any law, cuftom, or uf.tgc to the con— trs ry'in any wife not withftaiiding. ’ • And, for the better attaining juftice in alJ cafes, tried at faid Superior Court, where any penalty is forfeited, or conditional eftate recovered, or equity of redemption fued for, whether judgment he cnnfeffcd, orotherwife obtained, the Judges-oi faid court are hereby empowered, and authorized to proceed, "according to the rules of equity, and to chancerize forfeitures, and to enter up judgment for juft debts and da-magcsj as juftice and equity require, and to award execution accordingly. And be it further pnaéted, That any one of the Judges of the Superior Court may, out of term time, grant a prohibition to ftay proceedings in any court of Vice Admiralty, ⅛ this Colony, if the fame iliall not appear to be properly within, and to appertain by law to, .the jurisdiction of fuch court, and a final determinación and Judgment, with regard to fuch prohibition, ihall and may be given by the judges of the faid Superior Court, or any thr=5e of them, being met, or meeting at any time to confider of fuch mattef. And all judgments of the aforefaid Superior Court ihall be final, except where actions of review, and appeals to the K.iug in. Council are by law allowed.” “ An aft empowering the juftipes of the feve.ralInferior Courts ofCom-mon Pleas, in this Colony, or anV three of them, to conftitnte, and hold fpecial Courts of Common Pleás on certain occafionts. Be it enacted by the General) A ffembly, and hy the authority thereof it is enaéted, that the juftices ofj the feveral Courts of Common-Pleas in this Colony, may, and they arp hereby fully authorifed and empowered to meet and hold fpecial inferijbr Counts of Common Pleas, within their feveral counties, any three off whom Aall be a quorum, for the hearing and trying all fuchcaufes, as)by law arc or ihall be cognizable, before fuch fpecial courts to give' jn,dgment-4héxeon, according to law, which ihall be final, and to award'eixecution ;'and that the clerks of the inferior Courts of Common fleas Aall be clerk's of the refpeétive fpecial courts to be held as aforefaid, And be it further euaéled 1¾- the authority aforefaid, that all writs and procedes for the bringing any caufe or fuit to tVial, ihall ilfue out of the clerk’s office of faid court, in hisMajefty’s nam e, ftnder the feal of the court, b<? figned by the clerk and direéted, to the Aeriff or his deputy, and fe-curity for profecuting Aall be given,'where the plaintiff is not an inhabitant and freeholder in this colony, in the fame.manner as by law is required át the taking out a writ to the inferior coutr^of Common Pleas in common cafes. And thak all fuch writs and procedes. ifi’ucd as afore-? laid, Aall be ferved at leaft three days before the day of the fitting of fuch court, and the declaration ihall be filed on fuch writ! at the opening of the court. Provided always, and it is the true intent and meaning hereof; that when the Sheriff, Clerk, or town Sergeant, or any -of them aré parties, the writ, original and judicial, iliall be figned, direéted to, and lerved by fuch perfon, as in fuch like cafe as the inferior courts of Common Pleas is ordered and directed- . Alio belt further enadted, that -when any perfon fhall have right bylaw to commence ⅜ fuit-to a fpecial court, lie-fhall go td the Chiefjuf-l ice, or one of his affociates, juftices of the,inferior court,- and make hi» req.ueft for the calling fuch fpecial court, and the faid juflice fltall there-j upon give forth a notification, in wiring,, under his hand, totheotber juftices of "fuch inferior coui-t, warning them to meet at-the day by hint. ⅛ fuch notification appointed, in order to hold a'fpecial court; which bring done, any.other perfon, entitled by law, may commence-aftions to fuch fpecial court, without any further requeft or notification ; and if any writs to,fpecial courts be made returnable in term-time, no- requeft or'notice fhall be rieceffarv. And be it further, enadted by the authority aforefaid, that if iffue in fadt fhall be.joined in any inch cafe, a writ of venire facias fhall iffue to t .je Sheriff or his deputy, or in cafe of the Sheriff’s b.eing a party; then to fuch perfon as by Jaw it may be, in fuch like cafe, at'the ftated inferior courts to' return to fuch fpecial cdurt twelve good and lawful jurors to try fuch iffue.- ’ • And that’the fees at fuch fpecial courts fltall be the fame as are allowed and taxed at the fuperior court. And be it further enadted, that execution on any judgment obtained át.fuch fpecial court; may iffue immediately, and fltall be'returned into the'clet;k’s office in fourteen days after taking out the feme. ' And it is hereby enacted, that the feme rules fhall’ be obferved in commencing adtions at fpecial courts, with refpedt to the county in which the fame fltall be commenced, as by law arefixed for bringing tranlitory ádtions'to-the inferior courts of Common Pleas. . And be it further enadted by the authority aforefaid, that the vendue-mailers of. tlie fevera-l towns in this colony be, and they are hereby em~ powered to. bring adtjons to fpecial courts for the recovery of any fum or fumi.bf money’due-and payable to’them for real eftates, goods, effedts, fir things by them fold at public vendue, upon the buyer’s 'negledting or refilling-.to p.ay for the fame at the time in the .conditions- of fele fet forth. - And be it furtfcerenadled, that if any vendue-mafter fhall negledl or refufe to pay unto any perfon, who fhall have put any real eflate, goods, wares, effedts, or things whatfoever into his hands, tobe fold at public vtnduc, the money arifing-from fuch fele (provided he hath ’received the ’iapt.e) or if he-have not received the feme, if he fhall negledl or refufe ro cali’ a fpecial court for the recovery thereof, for the fpace of fifteen days after the timeof payme.nt mentioned in the conditions of fele, and doth not ufe his utmoft fpeed. and diligence for .recovering fuch money; then-it fltall. be lawful for any perfon, who put fuch real eflate, goods, • ■wares, effects,-or-things, whatfoever, into fuch vendue-mafter’sbands, to fue-fuch vendue-mafter at'a fpecial court, in like manner, and to have, the-fame remedy- to all intents and pnrpofes, againft fuch vendue--nisfter, as he hath by lawagainft the buyer. And be it further enafted, that the feveral Sheriffs in this Colony and their deputies, ihall have full power and authority to commence aétions to fpecial courts for the recovery of any. fum or Aims of money, from any perfon or perfons for real eftate, goods and chattels, by them attached and fold at vendue, if the fame be not paid according" to the conditions of fale. , And be it further enafted by the authority aforefaid, that the Sheriffs of the feveral counties in this Colony, or tljeir deputies, or the Town, Sergeant of any town, who ihall return any execution, that is delivered-to them, to the court, to which the fame is returnable, fatisfied, and do not pay the debt due on fuch execution to the Plaintiff, or parry who recovered the judgment, or ihall return any execution not fatisfied or uiifatisfied, without having orders from the party who recovered the judgment, for fo'doing, or neglefting to make return of any execution in term time, to which the fame is returnable, or at a'ny particular -day mentioned in any execution for the return tliejeof, the perfon in whofe favor any fuch execution was granted, ihall have full power and authority to call a fpecial court at any time twenty days after the riling of the court, or time to which fúch execution was returnable, for the recovery of the contents thereof, and that the Sheriffs ihall have the fame power of calling fpecial courts on thqir refpeftive deputies who fliall be guilty in the premifes, or flial 1 negieft to d<-> his duty.. And be it further enafted, that when the Marihal of the court of-Vice-admiralty in this Colony or his deputy, ihall fell or difpofeof any goods, wares, merchandize, effefts, or things whntfoever, in confe-quence of any order, fentence, or decree oí laid court, and the conditions of fale fhall not be complied with by rhe jmrchafrr, the faid Mar-umi or his deputy is hereby empoweied to call a fpecial court for the recovery «f any fum due forgoods^nd merchandize fo fold ; sjnd fhall be 1 iable to be fued at a fpecial court, in rhe fame manne'r as the vendue— tnaife. ; in this colon-yare liable for the money arifing on the fale of fuch ¿oods and merchandize as have been or fliall be fold, .any law-, cuftom, or nfage, to the contrary notwithflanding. ' And be it further enafted, that the direftor.s of all lotteries which ere already, or ihall be granted by the General Affembly, for railing money for public ule, and each of them fliall, for ⅞® ir.ore -fpeedy recovery of all fuch Aims as are or fliall become due for tickets, have power to fue for the.fame at Ipeeial courts. And that all perfons entitled to a prize or prizes from any direftor, after demanding payment and a refufal ortne-gleft of the fame, fliall have like power to fue any fuch direftor for the fame, at a fpecial court.-" And be it further enafted, that fpecial courts fliall . and may be held, for the trial of perfons for any breach or breaches, of," an aft entituled “an aft to 'prevent ftage-plays-and other theatrical entertainments, within this Colony,” and for the recovery of the fines and forfeitures in id id act contained. Iredell, JuJlice. Tofhew, that', in the.cafe of Petitions, vefpecting . the Judicial proceedings of inferior Courts, the General Aflembly does ■ not act as a Legiflature, it may be obferved, that, both Houfes then fit .in one room, as oue body ; but when engaged in making laws, the Hou~. fes fit in feparate rooms, as diftinct bodies. [MAJORITY — By the Court] By the Court :—We are clearly of opinion, that the Superior Court of Rhode If and, on whofe judgment this writ of error is brought, is the higheft court of law of that ftate, within the meaning of the 25th feftion of the judicial aft. The general aflembly might fet afide, but they could not make, a decifion. ' ’ The.Chief Justice then .delivered the opinion of the court on' the firft point;.,in confeqúence of which, the judg-merit of the fuperior court of Rhode If and, was affirmed. Chase, Juftice. The citation may' likewife be ligneil by a juftice; qf'this court. Lee, Attorney General. 7'rúe ; but the aft contemplates giviag aa i-.teyuuttve to aceo-uynoclate the party.