Open main menu

Page:United States Reports, Volume 2.djvu/380

This page needs to be proofread.


374 Cases ruled and adjudged in the 1797. ciples of the pra&ice of the Courts of Pennfylvania) after VVV iifue had been joined, and a variety of oontinuanees, and other entries, made upon the record, an original, not an Alike,. Cnpia: was iifued, on the 8th of Augull: l796, retumable to Oétober . term following, againft Hoker alone, upon which writ he was arrelted; but on a hearing before Winsorr, ja/lice, he was difcharggd on common bail." In October term, the Attorney of the iItri& {Rewle) had obtained two rules :-ill. That . Holler fhew caufe on the firll day of the prefent term; why the writ iffued fhould not be amended, conformably to the pre- cept, which, it was alledged, direfted an Aliar Cupiar:—And ad. '1`har Holler {hew caufe, why the Plaintidi {hould not file common bail for him. It was agreed, however, that the cafe ihould be argued, as if the lafi: writ had been an Alia: Capiae, reciting the original Capiar and retum ; and the only queition difcuffed was—Whether an Aziar Capiru could ifl`ue, after the lapfe of fo many terms, and under the circumllances appearing uponthe record, to arrefl: Holler, and make him a party tothe exifting fuit? · Rawle, for the plajixtifi] obferved, that upon principles of common jufiice, and, he thought, upon principles of Jaw too, * when there were feveral defendants, and one only was taken I on the firlt writ, procefs might iffue, from time to time; to bring the others into Court, without compellin the plaintiff to difconrinue his aétion. By the urlv pdim og the judicial Aft (r Va!. Swrff: Edie. p. 58. 9. { it is provided, that the Courts of the United States •¤ {hall ave power to ifl`ue writs of Scire Faeierr, Habra.: Carpur, and all uber writ: not provided pr by jfatule, wbicb may be ueedlirryfir the exernye of their refpe8ive juryiliilioru, and ugreeadle ta t e principle: and upge: yr Ia·w." lt is only incumbent on the plaintiff] there- fore, to ihew, that the prefent writ is neccffary to the efficient exercife of the Court’s jurisdiéiion, and that it is agreeable to the principles and ufagcs of law. It is admitted, that the courfe of proceeding in England isdifferent. There, the defen- _ dant, who is not taitcn upon the writ, mult be purfued to out- lawry; and if he does not enter bail, in order to avoid the pc-_ nal confequences, the plaintiff applies to the Exchequer for a fcqueftration, and obtains payment from the outlaw’s effeéts. x Sm:. 473 2 Bl. Rm. 7 59. 2 Bl. Com. 283. But no mode of proceeding " This aéiion had been originally inflitutrd in the Supreme Court of ]’enn.gyl¤ania; and Halker (who was then the only perfon arrefled) preil`ed for a trial; but after an ineffeéiual oppolition to an order for bring- ing on the caufe, the Attorney ofthe Dillrict enterrd a dil`conti· nuance. On this ground, I nm informed, Judge Winsor: directed common bail to be accepted lrom Holler in the fecond fmt,