UNITED STATES v. JOHN TYLER.

1812.

THIS case having been submitted without argu- Upon an in

ment

dictment for putting goods on board a car

LIVINGSTON, J. delivered the opinion of the Court as riage, with in-· follows:

tent to transport them out of the United

ry to the act of

The Defendant was indicted under the act to enforce States contrathe embargo laws passed the 9th January, 1809, for Jan. 9, 1809, loading on carriages, within the district of Vermont, the punishnineteen barrels of pearl-ashes, with intent to transport offence is a fine the same without the United States: to wit, into the of four times province of Canada.

ment of which

the value of the goods, it is not necessary should find th value of th goods.

On a plea of not guilty, the jury returned the follow- that the jur ing written verdict, which was recorded.

"The jury find that the said John Tyler is guilty of "the charge alleged against him in said indictment, "and that the said pot-ashes were worth two hundred "and eighty dollars."

The Defendant moved in arrest of judgment, because the verdict was not sufficiently certain as to the value of the property charged in the indictment, the same having found the value of pot-ashes, whereas the Defendant was indicted for the intention of exporting pearlashes.

Upon this motion, the judges being opposed in opinion, the same has been certified unto this Court for its direction in the premises.

The law which creates this offence provides that the party shall, upon conviction, be adjudged guilty of a high misdemeanor, and finded a sum by the Court before which the conviction is had, equal to four times the value of the property so intended to be exported. The Court, then, is of opinion that, under this law, no valuation by the jury was necessary to enable the Circuit Court to impose the proper fine; and, therefore.

v. TYLER.

U. STATES that that part of the verdict which is objected to, is regarded as surplusage, and cannot deprive the United States of the judgment to which they became entitled by the Defendant's conviction of the offence laid in the indictment.

It must, accordingly, be certified to the Court below, that it proceed to render judgment for the United States, on the verdict aforesaid.

(END OF FEBRUARY TERM, 1812.)

THIS was an action of debt brought in the District A writ of er. Court of the United States for the district of Virginia, ror does not upon an embargo-bond, dated the 2d of November, 1808, lie to carry to conditioned to reland the cargo of the Essex, in some the Supreme Court of the port of the United States, the danger of the seas only United States excepted.

a civil cause which has been carried from

the the District for Court to the have by writ of erbond or value good defence and to an action eight bargo bond,

Circuit Court

Semb.: It is a

upon an em

The Defendants, among other things, pleaded following plea, viz.; "And the said Defendants further plea why the United States ought not to and maintain the said action, say, that the said was given and executed for more than double the of the vessel and cargo, mentioned in the recital condition of the said bond; to wit, in a sum of thousand dollars more than double the said value; the said last mentioned Defendants ayer that the obli- given for more gors were constrained to execute the said bond by the the value of refusal of the collector of the port of Tappahannock to the vessel and clear and permit the said vessel and her cargo to de- the master was part from the port and district of Tappahannock until constrained to the same bond was executed as aforesaid, and this they the refusal of execute it by are ready to verify," &c.

and that it was

To this plea there was a general demurrer, which was overruled by the district judge (TYLER.) The

than double

cargo, and that

a clearance.

"

U. STATES United States carried the cause up to the Circuit Court by writ of error, where the judgment was affirmed by GORDON & MARSHALL, C. J.

v.

OTHERS.

The United States brought another writ of error to the Supreme Court of the United States, which was dismissed for want of jurisdiction; upon the authority of the case of United States v. Goodwin at the last term.

1813.

Feb.

4th.

BARTON v. PETIT AND BAYARD.

If the original

Absent....JOHNSON, J. and TODD, J.

ERROR to the Circuit Court for the district of judgment be Virginia on a judgment rendered on a bond (technicalreversed, the, reversal of the ly called in Virginia a "forthcoming bond") given to dependent the marshal with condition to have certain goods forth. judgment on coming at the day of sale appointed by the marshal; the " forth coming bond" being goods which he had seized under a fi. fa. issued follows of upon a former judgment recovered by Petit and Bayspecial certio- ard against Barton, which judgment was reversed at rari is necessa- the last term of this Court.

course; but a

ry to bring up

the execution

upon which

given so as to

nexion between the two judgments.

P. B. KEY, for the Plaintiff in error, contended, that the bond was the record of the former judgment being referred to in show the con- the condition of the bond, was to be considered as part of this record; and that the Court could judicially take notice that it was the same which was reversed by this Court at the last term, the transcript of which record now remains with the clerk of this Court. But if the Court could not judicially notice that fact, he moved for a certiorari to the clerk below to certify the record of the judgment on which the execution issued upon which the bond was given.

E. I. LEE and I. R. INGERSOLL, contra, contended, that the former record was no part of the present record, and that the Court could not judicially know it to be the same, and cited 4 Hen, und Muu. 293. 1 Wash, 94.

February 11th.... WASHINGTON, J. delivered the opini- BARTON on of the Court as follows:

V.

PETIT &

This is a writ of error to a judgment of the Circuit BAYARD. Court of Virginia, rendered upon a bond given by the Plaintiffs in error with condition for the delivery, at a certain time and place, of property seized by the marshal to satisfy an execution which had issued from the same Court. The condition not having been complied with, this judgment was rendered upon motion and notice thereof duly served upon the obligors in the bond, agreeably to the laws of Virginia.

It is not pretended that there is any intrinsic error in this judgment to warrant its reversal; but it is contended that the reversal of the original judgment, upon which the proceedings in this record took place, requires necessarily the reversal of this judgment. The general doctrine is undeniably so; but the application of it to this case is not admitted. That the judgment in this record is dependent upon some other judgment is apparent from the bond which recites a prior execution and seizure, by the marshal, of the property mentioned in the condition, for the purpose of satisfying it but it does not appear judicially to the Court that the recited execution issued upon the identical judgment which has been reversed. The only difficulty which the Court has felt has been to devise some proper mode in this, as well as in all similar cases which may hereafter arise, to connect with the original reversed judgment that which is asserted to be dependent upon it.

A certiorari upon a suggestion of diminution would not answer the purpose, as the proceedings in the original suit form no part of those in the subsequent suit: the only foundation of which are, the bond and notice. Neither does it appear regular for this Court to receive as evidence of the dependency of the latter upon the former judgment, the certificate of the clerk of the Circuit Court.

The Court has thought it best to direct a special writ to be framed applicable to cases of this nature, to be directed to the clerk of the Court in which the judg ments were rendered, to certify under the seal of the VOL. VIE

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