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Page:United States Reports, Volume 2.djvu/385

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Ctxcmr Counr, Peng/jlvm-ia Diltrillti · gg himfelf of Mr. Ht!l·n': cafual vilit toPLiIdelpbia, without dif- F]97. continuin the firlt action. What, indeed, would he the con- vw`! dition of gte defendant, who is artefted, if a dilerent conltruc- tion were to prevail ? He might be ready for trial; he might be able toptorethat there wasuo caufeo a&ion; hemight be delirous to avoid trouble and expenee by a prompt of judgment ; or he might he the tgmcipal, and non-appearing defendant merely a furety, fo t he could denre no advantage fromtheaéeflofltis colleaguc;—and toaninde itenennofimrifonment,or ' ' ' for an iudeinite period in gtfpenfe, at thc pleafure of a plaintilli who lhould ehufe to calculate upon any remote pollibility of bringing all the defendants into Court. The injultiee and op- prellion to the defendant, furnifhcs a lirong argument againll the allowance offuch aprivilegetotheplztt.*¤til¥‘Z · It is conceded, however, by the plaintifs eounkl, that the motion would be irregular, unlefs leave is given to file co.·n· mon bail for Mr. Hakr, as of April term 1792, when the ori- ginal aétion was inltituted. But why Ihould fueh,a re¤·ofpe£I:· be allowed? 1!Ir.HoE·:r wasnotthen arrelled; andlhallthe Court countenance a mere Eétion ;-a fi&ion not indiftginfable to jultice, unknown in the law, and direélly adverfe to truth oftheeafe, exhibited foranumberofyears upon % record? No:—Iamanenem to l`pec1es` offi&i¤ns. e#li&ions which have been incdrpoi=a't:ii!into the law by long ufage, (and, I believe, the cafes of ejeélment and common recovery allbrd the only li£ions recognized in America) mult be fullzained ; but asfarasleanprevent theintroduélionofnoveldesofthisnatnre, I lhall he alliduous to do fo. All the entries upon the record were true and regular at the time of making them. There is, therefore, noerror toamend; but the Court is alked, for the convenience of the United Sum, arbitrarily to aholilh the writ and its return, the declaration, the ill'ue, and the continuances; and not only to undo all that has been previoully done, but by — an entry of common bail, to ingraft, in effeft, this falfhood upon V the record, that Mr. Iialier was arrelted in April tyga. ~ But after all, I will not anticipate an opinion, upon a cafe, * · in which an dliar {hall be regularly taken out, and continued,. from term to term; though my prefent imprellions are unfa- vorable, even on that ground, to the plaintifPs doélrine. The multiplication of fuits, the perplexit of entries, and the op- prellivc vcxation of fuceellivc hail honds, each for the full a- mount of the demand, are efteits that could not be ealily tole- rated in the adminiltration of jullice. I have not heard, during thc difcullion, of any principle, or ufage, of law, that would re- concile them to my mind: but this is not the foundation of the- prcfeut deciliou ; lor, the irregularity in the telte and return; Bbb 2 ¤ ·