To support a judgment on a collector's bond at the return term,
it must appear by the record that the writ was executed fourteen
days before the return day.
This writ of error came up at last term from the District Court
of the United States for the Kentucky District, which, by law, has
the jurisdiction of a circuit court of the United States.
The United States instituted a suit in the District Court of
Kentucky against Lewis Moore, principal, and Dobynes & Morton,
sureties, in an official bond given by Moore, as collector of the
revenue.
The writ of
capias ad respondendum, by which the action
was commenced, was issued on
12 February, 1803, returnable
to the
second Monday in March following, and judgment was
recovered be default at the return term on motion.
It was insisted on for error that it did not appear from the
record that the writ had been executed fourteen days before the
return day, according to the provisions of the fourteenth section
of the Act of Congress of July 11, 1798. 1 Story's Laws 541.
The section declares:
"That the bond of any supervisor or other officer of the revenue
who shall neglect or refuse, for more than six months, to make up
and render to the proper officer his accounts of all duties
collected or secured, pursuant to such forms and regulations as
have been or shall be prescribed, according to law, or to verify
such accounts on oath or affirmation if thereunto required, or to
pay over the moneys which shall have been collected, shall be
deemed forfeited, and judgment thereon may be taken at the return
term, on motion, to be made in open court by the attorney of the
United States, unless cause to the contrary be shown, and allowed
by the court, provided always that the writ or process in such case
shall have been executed at least fourteen days before the return
day."
The record contained a copy of the bail bond which was executed
by Morton on 11 Mardi, and the receipt of the jailor for the body
of Dobynes, dated on 12 March, 1803. According to the calendar, the
second Monday of March could not have been later than the 14th of
that month.
It was admitted by the Attorney General of the United States
that the judgment could not be supported, as the record did not
show that the writ had been executed fourteen days before the
return day.
Judgment reversed.
Comments
Be the first to comment
Leave a Comment