The Court
overruled the motion of the counsel for the defendant to disallow the exceptions referred to, and directed the counsel for the plaintiff in error to proceed with the argument of the case.
D. M. Bates.
There were twelve exceptions or causes assigned in the case, but which resolved themselves substantially into five only. The second section of the fourth article of the Constitution of the United States provides that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” and we shall contend that the subsequent and repealing statute of this State which afterward repealed the provision of the general and preceding statute which was in force when the recognizance of bail was entered into in this case, and which then provided that all persons, without
any reference to their residence, should be exempt from arrest on writ of
copias ad satisfaciendum
without an affidavit of fraud first filed against them, so far as non-resident debtors were concerned, and retaining it as to our own citizens, was in contravention of that provision of the Constitution of the United States, and was consequently null and void. Before that general statute was enacted, every person and every citizen in the State was under a legal liability to be arrested for debt; but when that act was passed, it enlarged the liberty and secured the privilege and exemption from such arrest, of every citizen of the State, and of every citizen of every other State, without an affidavit of fraud first filed against him, specifying the nature and character of the fraudulent transaction in which it was alleged to consist, and when by the subsequent repeal of a portion of it and a modification of that general provision, the Legislature attempted to limit and restrict that 'great right, privilege and immunity to the citizens of our own State exclusively, and to deny it to every citizen of every other State in the Union, it was in violation of that provision of that constitution. What are the mutual rights, privileges- and immunities or exemptions (for that is the legal signification of the word “ immunities ”) of citizenship in and of the several States of-our one, united and common country, as contained in that clause of the constitution, had not been very well defined, and strange to say, no question had yet arisen in the Supreme Court of the United States in regard to the import and construction of it, and therefore no decision of that tribunal could be found upon the subject, but it had several times arisen before other tribunals of inferior jurisdiction, and in which it had been uniformly held that those terms clearly comprehend and include all legal remedies, as well as rights and exemptions and modes of redress for the recovery, collection and enforcement of debts and other general rights and liabilities at law, and that it is not in the power of the Legislature of any State to make any distinction whatever, in any such cases, between the citizens of its own and the citizens of any other State in the Union,
and that whatever rights, privileges and immunities of this description are guaranteed and secured by law to the citizens of one State by the Legislature of it, are common to the citizens of every other State by virtue of it.
Corfield v.
Coryell, 4
Wash.
380.
Douglass’ Adm’r v.
Stevens, 3
Chancellor Ridgely's notes
547.
But independent of that broad ground of objection, there were other and special exceptions to the record to be noticed in connection with what he had already said, and the first of which was that there was error in the entry of the judgment below by the Prothonotary, because it was done by him in vacation without any order of the court below to him to so enter it, and without the authority or the agreement of the parties in the case to warrant it. In the next place there was error in the amount of the judgment as ascertained and so entered by him in the interest calculated, allowed and included by him in the judgment, because the bail was not chargeable with interest upon the judgment against his principal which was $5551.00, but only for the amount of such judgment, without interest thereon. 1
Tidds
281.
Waters v.
Leese, 3
Taunt.
502. The amount of the judgment as so ascertained and entered by the Prothonotary below was $6411.78. And why should the bail be liable for any interest on the judgment against the principal in such a cáse ? For the liability for interest as such accrues when there was a contract either express or implied between the parties to it. 5
Coic.
604. And lastly there was error in the record because the judgment was entered below for a sum exceeding the amount of the penalty of the bail bond which was only $6000.00.
Rev. Code,
416,
sec.
10. 1
Tidd
540.
Patterson.
This court had no jurisdiction of errors in fact, whatever might be the authority and practice of the courts of England sitting as courts of error in that country, and therefore the assumption on the other side that they had assigned as an error in fact that Gross, the defendant in the original judgment and the principal from whom the
recognizance of bail was taken, was at the time when it was recovered and when the
ca. sa.
was issued, a citizen of another State of the Union, and that the defendant in error by pleading
in nullo est erratum,
instead of traversing or specially denying the allegation, had thereby admitted it, was not only erroneous in point of law, but in point of fact, too, because that fact did not appear by the record sent up and the record in question. But no error of fact could be assigned or alleged as a ground or cause of error in this court under the constitution and laws of the State, and therefore that plea could not be held to admit the truth of the allegation referred to, even if it appeared by the record, or «'as stated or assented to in the case stated, or in the record of the suit below, which was not the case, because it was no where alleged, much less admitted as a fact in the case, except in the causes of errors assigned by the counsel in this court. The authorities cited, in order to show that the modification and partial repeal of the general act by the subsequent act of the Legislature with a view to limit and restrict the exemption from arrest by
ca. sa.
for debt without an affidavit of fraud filed to obtain such a writ, to citizens of our own States, and to deny it to the citizens of other States, was in conflict with the clause of the constitution of the United States referred to, were not sound, and were not so considered to be at the present time; but even if they were so, they did not go to the extent of holding that such a distinction and discrimination in an act of the Legislature would be in derogation of it, and therefore unconstitutional and void.
Kincade v.
Francis, 3
U. S. Dig.
566. Where the statute concerns merely the regulation of the process and the proceedings in the courts of a State for the recovery of debts, it has been expressly railed that such a distinction and restriction is not in violation of any provision in the constitution.-
Campbell v. Har
ris, 3
Har. & McHen. Rep.
535.
Murry v. McCarty 2 Mumf.
398.
Ward v. Morris et al.
4
Har. McHen. Rep.
340.
Towle’s case,
5
Leigh’s Rep.
334. 1
Lit. Rep.
334. 10
Cow.
340.
State v. Clairborne
1
Meigs’ Rep.
331.
Frost et al. v.
Brisbin,
19
Wend.
11.
Tatem v. Wright et al. Zabr.
429.
Corfield v.
Coryell, 4
Wash.
371.
Sedw. on Stat. & Const Law.
601.
Story on Const, secs.
1798,1799,1800.
Sarg. on Const.
393.
Rawle on Const.
29, 30, 31. 2
Kent’s Com.
71.
Abbott v.Bailey,
6
Pick.
89. But, if tlie subsequent statute referred to was inoperative and void for the reason alleged, then the original statute prescribing an affidavit of fraud in any case whatever, was equally inoperative and void for the same reason, and there was practically no affidavit of fraud necessary in any case before the suing out of the writ. As to the objection that the judgment in this ease was entered below in vacation by the Prothonotary without any order from the court below, and without the authority and consent of the parties in the case stated, that he should so ascertain the amount of it and enter the judgment, all he had to say in the first place was that there was no occasion or necessity for such an order from the court, and in the second place that it was expressly agreed in the case stated that the judgment should be so entered by the Prothonotary. But if there had been error in that particular, this court would not take notice or assume jurisdiction of such an error, for the court above which heard the question had nothing to do with directing the judgment to be entered, but by the agreement of the parties, as well as by the legal and constitutional functions of the two tribunals, the judgment was to be entered in the court below, and by the court below, and if erroneous in any such respect, that court was not only competent, but the proper tribunal to correct it, and this court would, accordingly, leave it to that court to rectify it. Besides, such matters of practice were not cognizable on a writ of error, and no writ of error would lie to any such proceeding, for the matter having been referred to the Prothonotary by the agreement of the parties, the court below would correct any such error on the application to it for that purpose. In reply to the objection made on account of the amount for which the judgment had been entered, he would remark that a judgment might be rendered on a collateral bond for an amount greater than the penalty
of it.
Harrison v. Clapp et al.
1
Mass.
308.
Pitts v. Tilden,
2
Mass.
118.
Cook et al. v. Toney,
3
Wend.
444. State v.
Wayman,
2 Gill &
Johns.
279. And judgment might be recovered in a
scire facias
on a recognizance for the amount of the penalty with interest upon it.
Welford v. Davidson,
4
Burr.
2127.
Bodily v. Bellamy,
2
Burr
1097. The case cited on the other side from 3d
Taunt,
was an action of debt on a recognizance of bail, but it was regarded as analogous to a proceeding on the judgment to realize and' collect the amount of it in that country, where a judgment does not bear interest after its recovery, unless the action be upon the judgment, which was quite common in. England, and the action in that case not being on the judgment, which of couise, it could not be, as it was against the bail, but was upon his recognizance of bail, the plaintiff could not recover in that action any interest on the judgment itself. But the law and practice was otherwise in this State, for a judgment here always bears interest from the date of its recovery, and therefore, the rule here should be just the reverse of what it is in that country on that point. Error in the amount of a verdict cannot be taken advantage of on a writ of error. 3
Ala. Rep.
516, 550, 715, but the party should apply for a new trial; and a matter not excepted to in the court below, cannot be excepted to in the court above. 7
How. Miss. Rep.
414. 12
Ohio
132. 24
Wend.
496. To return, however, to the constitutional question, he would say in conclusion that when a power, or authority had been claimed and exercised by a State for a long series of years, and ever since, or nearly ever since, the adoption of the federal constitution without objection or dispute, it was evidence of a cotemporaneous interpretation' of the instrument in regard to the matter, and furnished strong ground for holding it to be constitutional. 2
GUI
487. And of this we had many instances in this State, such as the well known rule and regulation which peremptorily requires whenever it is demanded by the adverse party, every non-resident to give security for costs as a plaintiff in our courts, to entitle him to prosecute an ac
tian, as well as other regulations of a similar character which might be mentioned.
Gomegys,
for the plaintiff in error,
questioned the soundness of that conclusion. Where all or most of the States had for a long time uniformly concurred in maintaining such distinctions between the citizens of their own and those of other States, and they had never been questioned, it might afford some ground for the inference that they were not repugnant to the provisions of the Federal Constitution. But the practice of one State, or of a few States merely, could not in his opinion warrant any such conclusion. The causes of error had been assigned and filed in the case at least twelve months, and among them the fact was distinctly alleged that Q-oss, the defendant in the original action, was not a citizen of this State, hut was a citizen of one of the United States when this writ of
ea. sa.
was issued, and the counsel on the other side well knew before he joined issue on the writ of error in this court, and entered the common plea, and the only plea upon the record,
in nullo est erratum,
that such an averment was contained in the causes of error so assigned, and the legal effect of it was beyond all doubt, dispute or question, to admit and acknowledge the truth of that allegation of fact in the case; for not having, traversed or denied it, the conclusion of law was absolute, and it therefore stood admitted on the record.
The counsel on the other side, as well as the Prothonotary, had misapprehended and misunderstood the meaning of the agreement contained in the case stated, for there was nothing in it to authorize the Prothonotary to enter judgment in it in the court below. On the contrary, it was clearly contemplated and designed in it, that the court below should direct the entering of the judgment, not in vacation, but at the ensuing term of that court; the amount, of it,however,to be ascertained by that officer. And such was the understanding and intention of the court too, when the question of law was reserved and the case stated was sent
up by it, for the case, by order of the court, which appeared by the record, was thereupon continued in that court until the next term, and which, of course, imported that nothing further was to be done with it in that court, until its return, and that the court should at the succeeding or some subsequent term, give such further order in it as might seem proper to that court. But without any such order, or any order whatever from the court, it was entered by the Prothonotary in vacation immediately on its being sent back from the court above. But what authority has such an officer to enter such a judgment at any time without the special order and direction of the court, and especially in vacation ? He was next proceeding to the consideration of the question of allowing interest on the judgment against the principal in this action against bail, and asked what was the measure and extent of the liability of the bail in such a case, when the court stopped him.
[By the
Court.-
The bail was not liable for interest on the judgment recovered in the action against the principal, or for any sum exceeding the penalty of his recognizance in an action upon it; but when judgment was recovered thereon against him, of course, under the practióe and the law of this State, it would bear interest from the time it was recovered.]
By virtue of the second Section of the fourth Article of the Constitution of the United States, the citizens of each State are entitled to and guaranteed the privileges and immunities of the citizens of every other State, and with reference to them in any and every State, the design of it was to put the citizens of all the other States upon a common level and a perfect equality with the citizens of such State within its limits; or, in other words, the liberal and benign object of it was, in this respect, to abrogate and abolish all territorial limits as between the States, and to prohibit all such ungenerous and invidious distinctions and discriminations by State legislation, or by that of Congress either, between the citizens of any particular State, and the citi
zens of any other, or of all the other States, as he was sorry to say, seemed to have been attempted by the act of the legislature with reference to the citizens of all the other States now under consideration, and in which, perhaps, it was not strange to see in the course of providence, which often disappoints the best laid schemes and designs of men, the first effect of its injustice and hardship is visited, not upon a citizen of another State, but upon one of our own citizens. But what was the meaning of the term
privilege ?
Jacobs defines it in his
Daw
Dictionary, and as very pertitinent to the present inquiry and the case before the court, in the definition and illustrations of its meaning, he has more to say about privileges from arrest for debt, and in proceedings and suits in courts of justice, than in any other examples which he presents in regard to it. In the case from 3
Har.
¿fe.,
Mellen. Rep.
cited on the other side, Judge Chase said the clause of the constitution in question secures personal rights, &c. And if by law you exempt your own citizens from arrest on certain conditions, as for debt without fraud, which is a privilege or immunity of no insignificant value and importance to every honest, but unfortunate debtor, not only in our own State, but in every State in the Union, how can you deny it to every citizen in every other State of the Union, against that express provision of the constitution to the contrary ? The numerous cases which had been cited on the other side, and which had been decided with reference to statutes of the States in regard to what are usually termed foreign attachments, did not conflict in the slightest degree with the construction he had been contending for, because the main and primary object of such enactments was simply to constrain a party out of the State to appear in its courts, but with every opportunity when he chooses to appear, to resist and defend the action against him, and which only sought in that respect, to put a citizen of another State on a par and an entire equality with every citizen in the State in which such statute had been enacted.
The Court
announced their opinion that they considered
that there was no error in the record and proceedings, or in the entering
of
the judgment in the court below, except in the ascertainment of the amount of it by the Prothonotary of that court, and that at the time when that was done, the amount for which execution couldhave been issued,could not, by the laws of this State, have exceeded the amount of the penal sum mentioned in the recognizance of the said Andrew C. Gray, the special bail, which was six thousand dollars. -It was, therefore, ordered and adjudged by this court, that the said judgment and proceedings in the said court below be in all things affirmed; but that the amount of the said judgment as heretofore ascertained by the said Prothonotary in excess of the said sum of six thousand dollars, be corrected and reduced, so that the same shall not exceed, on the 12th day of June, A. D. 1862, the time of the entry thereof, the sum of six thousand dollars mentioned in the said recognizance, exclusive of the costs of the suit and proceedings against the said Andrew 0. Gray, special bail as aforesaid.