# Morsell v. Hall

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United States Supreme Court
54 U.S. 212
Morsell v. Hall
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maryland.
The facts were these,
In 1843, Henry A. Hall, a citizen of Maryland, brought a suit in the Circuit Court of the United States for Maryland, against William Smith, a citizen of the State of Mississippi. James S. Morsell was one of two persons who became jointly and severally, special bail; and the recognizance of bail was taken before two justices of the peace for Calvert county.
In April, 1847, Hall obtained a judgment, in consequence of an opinion given by this court at the preceding term, which is reported in 5 How. 96.
In May, 1847, he sued out a writ of capias ad satisfaciendum against Smith, which was returned 'non est.'
In November, 1847, he issued a scire facias against Morsell.
In April, 1848, Morsell appeared and filed two pleas, viz., 1. Nul tiel record. This plea was based upon the fact that the recognizance of bail was taken before two justices of the peace. In the argument before this court this objection was not urged; but as the opinion of the Circuit Court was thus established, it is proper that a record of it should be made. The opinion was short and may be inserted, viz.:
'This mode of taking bail conforms to the long-established practice of this court. An act of assembly of Maryland, passed in 1715, c. 28, s. 2, authorized this mode of taking bail in suits in the then Provincial Court, which, like this court, had jurisdiction coextensive with the State. This court adopted the practice, and has always since acted upon it.
'The written rule, No. 62, adopted in 1802, was not intended to alter the previous practice of this court, and has never been so construed. It is merely intended to confer the power upon other State officers also, so as to increase the facilities of giving bail where the defendant resided at a distance from the place of holding the court; for, upon searching the records we find recognizances of bail taken soon after the adoption of the rule of 1802, before two justices of the peace of the State, in the same manner with the recognizance now before the court. A precedent has been produced as far back as 1812, and a more careful search would probably show precedents still earlier. The same practice has continued without interruption ever since; and, indeed, any other rule would be oppressive to citizens of the State who reside at a distance from the place of holding the court, especially as they would most commonly be obliged to bring their bail with them. In the case before us the recognizance of bail having been taken and sanctioned according to the established rules and practice of this court, the judgment upon the plea of nul tiel record must be for the plaintiff.'
2. That the promissory note filed as the cause of bail in the action against Smith, was paid before the judgment was obtained against Smith.
To the first of these pleas Hall took issue, and the judgment of the court was as is above recorded.
To the second plea he demurred; and instead of joining in demurrer, Morsell took no notice of it, but the judgment of the court was for the plaintiff generally. A motion was made to enter an exoneretur on the bill-piece, which was overruled.
A writ of error brought the case up to this court.
It was argued by Mr. Stewart and Mr. Johnson, for the plaintiff in error and Mr. Dulany, for the defendant in error.
The counsel for the plaintiff in error did not press the objection founded upon the plea of nul tiel record, as before remarked; but contended that the judgment below should be reversed because the court did not decide upon the demurrer. Harris v. Wall, 7 How. 693; Wheelwright v. Jutting, 7 Taunt. 304; Thompson v. Macirone, 4 Dowl. & Ry. 619.
2. That if it be assumed that the court did decide upon the demurrer in favor of the plaintiff below, the such decision was erroneous, because the debt, in reference to which the recognizance of bail was entered into, is shown to have been discharged before the institution of the original suit. Jackson v. Hassel, Doug. 330; 6 D. & E. 363; Tetherington v. Golding, 7 D. & E. 80; Tidd's Practice, 992, 993; Clark v. Bradshaw, 1 East, 86; 4 Halst. 97.
Mr. Dulany. The ground taken by the plaintiff in error in his second plea is, that, in the affidavit made by the defendant in error, in his original suit against William Smith, he filed, as cause of bail in said suit, a promissory note for the sum of $2,678.90, which had been paid (he does not say by whom) before the judgment against Smith in that suit was obtained.
In support of the demurrer to this plea, it would seem sufficient to remark, that the plea relies upon a matter of defence which, if it had been established, as it might have been if true, in the principal action by Hall against William Smith, would have been an effectual bar to the recovery of the verdict and judgment in that case.
It is a maxim of law that there can be no averment in pleading against the validity of a record, therefore no matter of defence can be alleged which existed anterior to the recovery of the judgment. 1 Chitty's Pleading, (Am. Edition,) 1844, p. 486, and margin; Cardesa v. Humes, 5 Serg. & Rawle, 65; McFarland v. Irwin, 8 Johns. Rep. 77; Moore v. Bowmaker, 2 Marsh. 392; 6 Taunt. 379.
Now the payment of the note, which is the ground of defence apparently relied upon in the above plea, was anterior (as is expressly averred in the plea itself,) to the rendition of the judgment against Smith, and upon that judgment the scire facias in this case was issued against the plaintiff in error as special bail of Smith. The plea must, therefore, be held bad, and the judgment of the court below sustained, else there is great error in the above-stated legal maxim and in the authorities by which it is supported.
Mr. Chief Justice TANEY delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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