Alabama state intelligencer., 1831-10-08

tained in any other county; and the District Al torney concluded with striking view of the incon- venences and endorsements that might ensue on | a departure from the Act.
 Mir HOLMES, for the defendants insisted that they had right to put in any plea that the defence should | require. That in any other view, to serve the de- fendants with writ was worse than mocley = That the very institution of proceeding hy suit carried with it the incidents of suit and thatpead ing was of those incidents. That the excep- ton in the act of '99 had reference solely toa ton for continuance. and that any other construction would be an Infringement of the right of jury trial
 Mir M'DUFFIE followed, on the same side, iepeat- ing and enforcing the objections urged ly Mir HOLMES, and claiming the right of going to he Ju ", as the only satisfactory mode of deciding the constitutional question:
 MT PETIeRU, for the United States, repliedto the Denlendant's Counsel, and contended that tke pro- visions of the Act were fair and equitable-shat it could work no injury. He admitted that the deien- dants were entitled to file any plea that would pre- sent an issue of tact for the jury; but that it was too obvious to admit of doubt, that the design WIS un der the show of pleading to transfer the real point in dispute from the Judge to the Jury; which could not be permitted His Honor the Judge, having de- cided that the Defendants at liberty to plead they immediately filed the plea of non est tastum :; on which issue was joined, and the cause submitted to the Jury
 The District Attorney then proved the execution of the bonds. The Defendants then called wit ness and asked him the question, whether the bonds had not been given for duties imposed by the Tariff of 1928? This question elicited the main argument on both sides.
 The United States Counsel objected that the tes- timony could not be admitted under that pea- The objection was urged by Mir PETIGRy, and sus- tained by the most luminous view of the subject, aided by the decided cases IT England and this country. Mir M'DUFFIE replied at considerable T d. not admissible.
 The Defendants Counsel then varied their mo-
 ton in form, by asking leave to go into evidence of the want of consideration for the bonds; on the ground of having given notice of such defence be- fore trial; but the Court thought that this motion could not be distinguished from that which had been previously decided.
 After the conclusion of the argument, the Court, in its charge to the Jury, briefly stated to them that it was suit on a Bond-that the execution of the Bond had been duly proyed-and that there was no evidence before the Court Jury to nvalidate the Bond
 The Jury found for the United States the amount of both bonds. An appeal has been taken, which will be heard by the Circuit Court at Columbia, in November next.
 On Tuesday, Judge LEE delivered the following Opinion:
 The question upon which am now to decide, is preliminary one, which the defendants deem Of much importance to their cause it arises under the 65 Section of the Revenue Act, and the amend- ment to the Constitution ofthe United States, Art. T.
 By the section above alluded to, is provided that "where suit shall be instituted any bOnd for the recovery of duties due to the United States, 1t shall be the duty of the Court where the same may be pending, to grant judgement at the return term upon motion, unless the defendant shall in open Court, the United States Attorney being present. make oath or affirmation that error has been committed in the
 liquidation of the duties demanded upon such Bond specifying the alleged to have been comtted and that the same have been notified in writing to the Collector of the District, prior to the commence nlent of the return term aforesaid; whereupon, if the Court be satisfied that continuance until the next succeeding term is necessary for the attain ment of justice, and not otherwise, continuance may be granted until next succeeding lerm and no longer"
 It must be evident to every one who reads this Section that Congress intended to provide in the most expeditions and summary manner for the re- covery of ali Bonds given for duties. They do not appear to have foreseen any difficulties in the way of the recovery of such Bonds-they seem not 10 have thought that any bar to that recovery could be set up. The only case which occurred to them us necessary to be provided for, was that of an error which might be committed by their officer, the Col lector in the liquidation of the duties. The section already adverted to, declares, unless the defendant shall in open Court, the United States Attorney be- ing present, make oath or affirmation that an error has been committedin in the liquidation ofhe duties de- manded upon such bond, specifying the errors alleg ed to have been committed, and that the same have been notified in writing, to the Collector of the Dis rict prior to the commencement of the return term aforesaid whereupon, if the Court be satisfied that continuance, until the next succeeding term, is ne cessary for the attainment of justice, and not other wise continuance may be granted until next term. and no longer In such case delay of a term is allowed if the Court should deem it necessary for the attainment of justtce."
 Two questions present themselves to the mind of the Court, which have been made. and naturally arise in this
 1s, Whether under the terms of the 65tb Section, the defendant is precluded from going into any de- fence, except that which is indicated in the latter part of the section which grants continuance on his making oath ofa miscalculation of the duties. 2d If so prohibited by the Act, whether the same is not violation of the Eth Article of the amend men to the Constitution of the United States, which declares that in suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, &c | It has been contended on the part of the United States that in all suits brought under this Section of the Act, the judgement or decision must be by the Court that is say by the Judge, without the inter. venlion of jury. Its language is, it shall be the duty of the Court to grant judgement at the return term upon motion. What the meaning of tho Legislature in this Act, when they use the term Court? E1 ri termini, "the Court when used in this sentence, and in common judicial parance, would be considered in most cases to mean the judge. But are we certain that Congress meant to confue the jurisdiction such cases to tie Dis trict Judge alone2 Will not liberal and enlarged construction warrant the opinion that by the term Court was meant to be included both Judge and Ju- ry? Let us examine the Law, and discover five can, whether Congress did could have intendedto pre- clude the debtor from any defence which he might have and from trial ofthat defence before aury.- In construng this and all other Laws, scans but common justice to the Legislature making hem, to put such an interpretation upon them, the language