Williams v. The United States.

tion from the President, made expressly to carry into effect the law of 1823, and forming the established rule and usage of the department; 2d, The conflagration of the Treasury Department, the legal and proper depository for this instruction; and, 3dly, The belief of the witness, then a clerk in the Department, and, by consequence, to a great extent cognisant of its arrangement and condition, that the document was destroyed in that conflagration. Authorities need not be multiplied to show that the case before us is completely within the rule respecting secondary evidence; a single decision of this court will be cited, as placing that matter wholly beyond controversy. In Riggs v. Tayloe, 9 Wheat. 486, the court, after laying down the general rule, proceeds thus: "It is contended that the affidavit is defective; not being sufficiently certain and positive as to the loss of the particular writing. The affiant only states his impression that he tore it up; and if he did not tear it up, it has become lost or mislaid; that this is in the alternative, and not certain and positive. We do not concur in this reasoning. An impression is an image fixed in the mind; it is belief; and believing the paper in question was destroyed has been deemed sufficient to let in the secondary evidence." The testimony of Dickins appears to this court much more direct upon the point than that admitted in the case of Riggs v. Tayloe: we consider it as fully justifying oral proof of the contents of the instrument to which it related, and as establishing the character and import of that instrument, as well as the usage founded thereupon; and upon this fact of the usage, Dickins is corroborated by the testimony of Young, the chief clerk in the Treasury Department at the time of the trial.

In considering the second exception made by the defendant, it may be remarked that the grounds of the exception are not stated with that distinctness and precision necessary to clear it entirely of obscurity; still the statement is thought to contain enough to guide the court to a correct solution of the question involved. The second bill of exceptions sets forth that the plaintiffs produced the dockets and records of the court, showing that in a number of cases where judgments had been entered against defendants for common law fines, forfeitures, and costs, and the said defendants had paid the amounts so respectively adjudged against them to the marshal, and ent es were made by the said

66

Williams v. The United States.

marshal or his deputy, on the said dockets, "money made and ready," money paid;" and that the amounts so received amounted, &c. And again: The plaintiffs further proved by the dockets, records, &c., that certain sums of money were adjudged by the court against certain defendants for fines, forfeitures, &c., upon which judgments writs of ca. sa. were issued, which writs were returned by the marshal, "satisfied marshal," and showed that the said sums amounted, &c. In the evidence set forth upon the face of these exceptions, nothing particular is disclosed relative to the modes of proceeding on executions, or of the means in practice by the court for recording and preserving the evidence of such proceedings, or of the acts and returns of the officers who may be charged with the management of final process; of course nothing is adduced to impeach the regularity of the reception by the court, of the returns and entries made by the marshal, or of the manner of placing them permanently upon the archives of the court. But it is admitted in the exception, that all these things are apparent on the records, viz.: The judgments and executions; the receipt of the money by the marshal, and his admissions of the receipt thereof, both by himself and his deputies. These facts are conceded to be parts of the records of the court to which the officer properly belonged, and before which his conduct was regularly cognisable: a tribunal in all respects competent to pass upon his acts; competent to fashion its records, and to preserve the evidences of its own proceedings and of the acts of its officers. The acts of this court, then, must, in the first instance, be presumed to be regular, and in conformity with settled usage; and they are conclusive until they shall be reversed by a competent power, and upon a case properly made. Upon both the instructions given and excepted to, in this cause, we approve the opinion of the Circuit Court, and therefore affirm the

same.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed.

ANDREW DUNCAN, PLAINTIFF IN ERROR, V. ISAAC DARST, HENRY DARST, AND JACOB DARST, DEFENDANTS.

A person in custody under a capias ad satisfaciendum issued under the authority of the Circuit Court of the United States, cannot legally be discharged from imprisonment by a state officer, acting under a state insolvent law.

THIS case came up by writ of error from the Circuit Court of the United States for the eastern district of Pennsylvania.

The facts in the case were not disputed, and were as follow: Isaac Darst, Henry Darst, and Jacob Darst, citizens of the state of Ohio, recovered a judgment in the Circuit Court of Pennsylvania, against one Jacob Roth, who was arrested on a capias ad satisfaciendum, and handed over for safe-keeping to Andrew Duncan, sheriff of the county of York. This was on the 6th of December, 1832. On the next day, Roth applied to George Barnitz, an associate judge of the Court of Common Pleas for the county of York, for the benefit of an act of the legislature of Pennsylvania, passed on the 28th of March, 1820, entitled, "A supplement to the act entitled A supplement to the act entitled An act for the relief of insolvent debtors, passed the twenty-ninth of January, one thousand eight hundred and twenty."

The first section of the act referred to is as follows:

"That if any debtor shall hereafter be arrested or held in execution, on a bail piece, in a civil suit, and who shall have resided six months in this commonwealth previously thereto, he may apply, when arrested on execution, to the president or any associate judge of the Court of Common Pleas of the county in which he is so arrested, or when held on a bail piece, may apply to the president or associate judge of the said court, in the county in which the suit was instituted, and give bond to the plaintiff or plaintiffs, at whose suit he is so arrested and held, with such security as shall be required and approved of by the said judge: the condition of which bond shall be, that the said debtor shall be and appear at the next Court of Common Pleas for said county, and there take the benefit of the insolvent laws of this commonwealth, and to surrender himself to the jail of the said county, if he fail to comply with all things required by law to

Duncan v. Darst et al.

entitle him to be discharged, and generally to abide all orders of the said court: whereupon the said judge shall give an order to the sheriff, constable, or other person, having such debtor in custody, to forthwith discharge him upon his paying the jail fees, if any be due."

It was admitted that this act was in force on the 7th of December, 1832, and for a long time afterwards; that Roth had resided in the commonwealth of Pennsylvania for six months previously to his application, and that he complied, in all respects, with the provisions of the above section. The judge gave an order to the sheriff having Roth in custody, to forthwith discharge him upon his paying the jail fees, and he was thereupon discharged.

Darst brought an action against Duncan for an escape, who pleaded specially the above matters n his defence. The plaintiff demurred to the plea, and the demurrer was sustained in the Circuit Court; and, upon the validity of this demurrer, the case was brought up to this court.

The statute of Pennsylvania, above recited, required the party who desired to be discharged from imprisonment, to give bond that he would appear at the next Court of Common Pleas, and there take the benefit of the insolvent laws of the commonwealth. Upon a reference to the acts then existing, it will be found that the privileges conferred upon the debtor and the duties required of him, by the insolvent laws, are the following: He was to be declared free from imprisonment, not only upon that suit, but from subsequent arrests, on his giving a warrant to appear in court; and although the property which he might subsequently acquire was subject to execution, yet the court was at liberty to exempt it, provided two-thirds of his creditors assented. The duties required of the debtor were, that he should hand, in a list of his property, creditors, debts, and losses; that he should not be guilty of collusion or false swearing; that he should not conceal or convey away his property, under penalty of imprisonment; and that he should be liable to punishment at hard labour, if found to be a fraudulent debtor. The property of and debts due to the debtor were vested in trustees, who were to convert them into cash and divide it among the creditors; the surplus, if any, belonging to the debtor.

Duncan v. Darst et al.

This is the process through which it was necessary to pass, according to the bond of any one who might be discharged from imprisonment, as Roth was.

Read, for the plaintiff in error.
Penrose, for defendant.

Read, for plaintiff, took the following positions:

1. The third section of the process act of the 19th May, 1828, expressly adopted the act of Assembly of Pennsylvania of the 28th March, 1820, and particularly the first section thereof, as a part of the proceedings on writs of execution, issued out of the courts of the United States, sitting within the state of Pennsylvania, and the discharge therefore of the said Jacob Roth, in pursuance thereof, was a lawful one, and obligatory both upon the said sheriff of York and the plaintiff in the execution.

2. That the said defendant, a state officer, in thus obeying the legal order of a state judge under a state law, adopted by the express words of an act of Congress, was not guilty of an escape.

3. That under the circumstances appearing on the record, no action of debt for an escape would lie against the plaintiff in error.

To sustain these positions, he referred to Wayman v. Southard, 10 Wheat. 1; United States Bank v. Halstead, 10 Wheat. 51; Beers v. Haughton, 9 Peters, 329; Ross v. Duval, 13 Peters, 45; Amis v. Smith, 16 Peters, 303; Bronson v. Kinzie, decided at the present term. In 9 Peters, 362, all the laws regulating state officers were adopted, and the reason is found in 12 Wheat. 285.

In 1789, the United States applied to the states for the use of their jails, 1 Story, 70, 207; and Pennsylvania complied. 2 Smith's Laws of Pa. 513. (Mr. Read referred to and commented upon the several acts of Congress respecting writs and processes, and traced the history of laws relaxing imprisonment for debt.)

Penrose, for defendants, entered into a critical examination of the powers of the federal government and states, and contended, that whether the act of Congress of 1828 adopted state insolvent laws or not, it did not intend that they should be enforced by state officers, to the exclusion of the jurisdiction of the United States courts. He then reviewed the cases cited on the other side, and maintained that they did not authorize the positions assumed.