v. ALLEN. prejudge the cause. I am therefore of opinion, that the PALMER non-payment of the debt mentioned in the statute, has no reference to mesne process, and that there is no occasion by our statute for a mittimus, to commit in any case except for crimes. Such I contend is the true construction of the statute in question, and such I think is the construction all would give it, if a different practice of our officers had not created a doubt." “2. If it were evident that our statute required a mittimus in such case, doubts are entertained whether it is applicable to the process of the United States." "It seems to be agreed, that the mittimus, required by our statute, must be "granted and signed by civil authority" of this state. This they are neither authorized nor compelled by any law either of the United States, or of this state to do in such case." "In cases, where it is deemed necessary for the civil authority of this state, to aid in executing the laws of the union, power is specially given them to do so;-as in all cases of a criminal nature, and in taking deposi-tions, &c.-but there is no authority given to them, or duty imposed on them as magistrates, to aid the execution of their civil process, and to expect it of them, or leave it optional with them to give or withhold the aid, would be derogatory to the general government." "They are an independent sovereignty.-Their officers must have all the power incident and necessary to the execution of the duties of their offices." "By a statute of this state, passed in 1794, stat. p. 368. "permission is given to marshals and other officers of the United States, to use our jails, to confine persons under the authority of the United States, with the same authority in the keeping of prisoners, under the authority of the United States, as the keepers of said jails, un der the authority of this state have." The effect is, and was intended to be, to take away all control or responsibility, from keepers of the jails, under the authority of this state, as to prisoners confined by the authority of the United States. The prison keeper of the sheriff, as such, has no power to receive a prisoner under the VOL. VII. 72 v. PALMER authority of the United States. He must have a spe cial power from the marshal, to enable him to act as ALLEN. keeper under their authority. Such part of the prison, as may at any time be used for such purpose, by the of ficers of the United States, is as distinct from the other, and from the control of the state officers, as though it were a distinct building.-Neither the sheriff nor the county are responsible for the safekeeping of the prisoners. The keepers may be, and some times are, different; or if the same person is the keeper of both, he acts in different capacities, and under different authority." "Hence I infer, that the keeper of the prison of the United States, has no power to commit on civil process by the authority of the state, nor, I contend, have the civil authority of the state any power to require it, and yet if a mittimus is necessary by our statute, it must be granted and signed by civil authority," of the state, directed to the keeper of the jail of the United States, commanding him by authority of the state of Connecticut, to receive and hold the prisoner, under the authority of the United States, I may add also, that if the mittimus is to be considered as a writ or process, included in the act of Congress, its form must be that of commitment, but the style, that of the United States, that is it must issue by the authority of the United States, bear test of the proper judge, and be sealed and signed by the clerk, but in such case, it would not have the requirements of our statute, by being granted and signed by civil authority of the state; and the United States have no analogous civil authority to execute the power." "Does it then follow as has been said, that the process by attachment must be abandoned? I think not.The party, claiming a debt, has a right to the advantages of such a writ, and when the officer shall have done his duty, in making the arrest, if no provision is made by law, directing the mode of commitment, he must take a reasonable course, such as would be sanctioned by the principles of the common law, and such as was probably used before we had any law requiring a mittimus any case." in “Having arrested the prisoner by legal process, the officer became responsible for his appearance at Court, PALMER and, on failure to procure bail, he was bound to hold him in custody. His place of custody is the prison." "The same warrant which commanded the arrest, required the officer to keep his prisoner safely, so that he might be had before the Court. The officer was therefore authorized to commit. Still it is reasonable and proper, that the keeper of the prison, should be able to shew the cause and ground of the commitment, and of his holding the prisoner in custody.This he will be enabled to do more fully, and more satisfactorily, by the copy of the process, and the doings of the officer thereon, than by the mittimus usually granted. This is the course required by our statute, on commitment by execution, distress, or warrant, and is that which I apprehend the common law in similar cases would require." "It therefore, appears to me, that on either ground, and most clearly, on the first, there was no occasion of a mittimus, to complete the justification of the officer, and that his plea was sufficient, and ought so to have been adjudged." March 16th....JOHNSON, J. delivered the opinion of this Court, as follows: This suit comes up from the state Court of Connecticut, to reverse a judgment of that Court. The Defendant here brought an action below, against Palmer, and recovered damages for a supposed assault and false imprisonment. The facts of the case were these: Palmer is a deputy marshal, and in that capacity, arrested the body of Allen, on a writ sued out by the United States, to recover a penalty which Allen was charged with having incurred by a violation of a law of the United States. In this suit bail was demanded, and upon Allen's failing to give it, he was committed to prison. The illegal act with which Palmer was charged, was committing the Defendant to jail without a mittimus from a magistrate. It appears that it is the practice of that state, and in this case the majority of the judges decided it to be the law, that such a mittimus must be obtained, before a Defendant in a civil suit can be com υ. ALLEN. PALMER mitted to prison. The practice however in the Courts v. of the United States in that district, has been the re To this action the Defendant pleaded a justification; and on demurrer, the state Court adjudged the plea insufficient, for want of setting forth such a mittimus; no question was made of the correctness of taking the body of Allen, or detaining him, until he should give bail. It was supposed that the law of the United States which enacts, that the form of writs, executions, and other processes and the forms and modes of proceeding in suits of common law, shall be the same as are now used" in the state Courts respectively; gives efficacy to the laws of Connecticut on this subject, and imposes upon the officers of the United States an obligation to conform their conduct to the provisions of those laws. But this Court are unanimously of a different opinion. The plea made out a sufficient justification and ought to have been sustained as such. A writ, known to the jurisprudence of that state, issues to the marshal in the alternative, commanding him to attach the goods of the Defendant to a certain amount, and for want of such goods, to take his body: under this writ, not only in conformity to the literal meaning, but according to the established usage and received opinions of that state, the officer was sanctioned in taking the person of the Defendant into actual custody-and the 56th section of the collection law of March 2d, 1799, expressly authorizes a demand of bail. Detention therefore, until bail was given, was strictly authorized by law, and the defence to the assault and imprisonment was complete. Committing the Defendant to the state prison, was but one mode, and the least exceptionable mode of detaining his person, and if it was not so, it would only be the ground of a special action on the case against the officer for mal-treatment, or oppression. But it is equally clear to this Court, that the law above alluded to commonly called the process act, does not adopt the law of Connecticut, which requires the mittimus in civil cases. This is a peculiar municipal regulation, not having any immediate relation to the progress of a suit, but imposing a restraint upon their state officers in the execution of the process of their PALMER Courts, and is altogether inoperative upon the officers v. of the United States, in the execution of the mandates ALLEN. YOUNG AND AL v. BLACK. 1813. March 12th. ERROR to the Circuit Court for the district of If three joint Columbia. owners of a cargo employ the master of he afterwards The suit was brought by Young, Deblois, and Law- the ship to sell rason, against Black to recover the proceeds of the it for them, & sales of a cargo shipped by the Plaintiffs to the West become inteIndies, on board the brig Active, of which the Defen- rested in the dant was master, and to whom the cargo was con- the joint ownsigned. share of one of ers, he cannot, in an action brought a inte- gainst him by Law- the three joint The Plaintiffs, Young and Deblois, had each an rest of three eighths in the cargo, and the Plaintiff, rason, the other two eighths. Upon the general issue a verdict and judgment were rendered for the Defendant. At the trial the Plaintiffs took four bills of exception. The 1st was to the admission in evidence of a record owners to re cover the a mount of sales, set off his share of that amount. Upon the issue of non assumpsit, the Defendant may give in evidence the record of a of a judgment between the same parties together with former judg parol evidence that it was for the same cause of action. ment between the same parties on the It is a matter The 2d and 3d bills of exceptions were to the admis- same cause of sion of parol proof that the Defendant had an interest action. in Lawrason's two eighths of the cargo, after the Plain- of discretion tiffs had shown their written instructions to the Defen- with a Court, whether it will dant with his promise to obey them, his bill of lading of compel a party the cargo, and his account of sales of it. to join in de murrer to evidence. A de The 4th bill of exceptions states the whole evidence murrer to evioffered as well by the Plaintiffs as by the Defendant, dence ought and that the Plaintiffs offered to demur to the whole ed where the not to be allow |