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Page:United States Reports, Volume 2.djvu/384

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378 Casas ruled and adjudged in the _ t797. full amount demanded Izethe plaintiff; and, it is conceded, ! kw that the procefs ufed on prefent oecalion, could not have . been ufed in England In that country, the outlawry in a civil cafe is, perhaps, an adequate remedy for the plaintifg but it is always optional with the defendant, whether he will fubmit to the rigor of the proceeding, or enter fpecial bail. In Penn- [ylwmh, likewife, a remedy has been introduced by long ufage; the plaintifheing allowed, if he pleafes, to proceed, at once, a init the defendant who is arreited : And now, as the laws oiathe United Slam have prefcrihed no fpecilic mode for a cafe of this defcription, itis propofed, under the authority of the l4*£Il feftion of the judicial a0., that the Court {hall frame, or rather fanflion, a new form of writ, which the plaintiff deems adequate to the purpofe, and conliltent with the principles and ufages of law. But l am not a friend to this fpecies of judicial legiilation; nor do I think it neeelfary, or proper, to exercife the power of the Court, in the prefent iniiance; even admit- ting the exillence of the power to the extent contended for. It ' appears fuliicient to my mind, to defeatthe prefent motion, that the alia: is not tefied at the retum of the original mpinr, nor . made returnable at the next enfning term. 5 Cm. Dig. 239. 'Ihere is no principle, or ufage of law, that will fanflion the idea of giving a retrofpeétive tefle, as far hack as_Jp»-il term 1792, to an alia} capiu: iffued in Angry? 1796. I am, therefore, clearl of opinion, that, on this ground alone, both the rules mult be difcharged. ` Inznmn., _‘fz¢i¢·¢. I agree, in fubitance, with the opinion of my brother Prrrrans. Vfhatever idea may be entertained of the authority of the Court, to adopt the praftice of Penrjyfub . nia, or to devife a new form of prooefs upon the principles and ufages of law, it does not appear to me, that the plaintif would be re larly entitled, under the prefent eircumilances, to the bencli: of either proceeding: For, there is no eE`e£tual mode of iiiuing an alia.: cupim,but by telling it of the term to which the original writ was returned. '.l`he praéiice of Pmrjlonnia may be reafonahle ; and its anti- quity at lealk would certainly entitle it to refpeét ; but that prac. tice goes no farther, than to give to the Plaintiff an option, ei- .ther to fufpend his proceedings ’till the non-appearing defend- ant can be arreiled, or to waive, on filing a declaration, all chance againll him, and enforce the fuit only agaihlt the de- fendant, who is taken on the copier. In the prefent inliance, it may have been expedient to adopt the latter eourfe of the alter- native, on account of M. Hall:/r permanent reiidence in ano- ther State; but being adopted, the plaintiff is bound by it, and •:unnot,_even on the principles of the Pmqfvlvanin praftice, avail · himfelf