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EX PARTE DAVID TAYLOR.

December 1, 1852

EX PARTE DAVID TAYLOR.


THIS case came before the court upon the following motion and petition:––

The opinion of the court was delivered by: Robert J. Brent, for Petitioner.

Ex parte DAVID TAYLOR.

{Petition for a Mandamus to the Judges of the Circuit Court of the District of Columbia, for Washington County.

The above petitioner moves the honorable the Judges of the Supreme Court of the United States, for a rule on the Judges of the Circuit Court of the District of Columbia for Washington County, to show cause why a mandamus should not issue commanding them to admit the appearance of the petitioner to a suit in said court, by Thomas Ewing, Jr., against said petitioner; and the petitioner moves for the said rule on his petition, and the transcript therewith filed.

1. Because there is no legal cause of bail set forth in the proceedings in said suit, and by the refusal of the Circuit Court to allow his appearance to be entered to said suit, he is unlawfully detained in custody by the marshal of said district.

2. Because the act of Maryland, passed in 1715, c. 46, § 3, is in force in the county of Washington, and nowise repealed, and the petitioner was by virue of said act entitled to appear to said suit, on giving special bail in the sum of one hundred and thirty-three dollars thirty-three and a third cents. But the court refused to allow him so to appear, or to enter bail in said amount.

3. Because the petitioner has a legal right to appear without bail, or upon giving bail to the amount required by the act of 1715, c. 46, § 3, and thereby to be discharged from prison, and the said legal right does not depend on the discretion of the court, but is fixed and regulated by law, and there is other legal remedy for the petitioner in the premises.

To the Judges of the Supreme Court of the United States.

The petition of David Taylor respectfully showeth, that he is now confined in the jail in the city of Washington, at the suit of a certain Thomas Ewing, Jr., and he refers to the accompanying transcript of the record of said suit, and makes the same a part of this petition, for the better understanding of the proceedings under which he is now unjustly and oppressively detained in prison.

Your petitioner showeth, that by said record it appears he was held to bail in said suit, upon the affidavit of said Ewing, and without a copy of the declaration being served on him, as required by the act of the legislature of Maryland of 1715, c. 46, § 3.

That, at the return of the writ of capias ad respondendum, issued in said cause, your petitioner moved to enter his appearance without giving special bail, because of the alleged insufficiency of the affidavit to hold to bail, but said motion was overruled by the Circuit Court of the District of Columbia for Washington County. That, thereupon, your petitioner moved to enter his appearance to said suit, upon giving good and sufficient special bail, in the sum of one hundred and thirty-three dollars and thirty-three and one third cents, because of the omission to serve your petitioner with a copy of the declaration, according to the terms of the aforesaid act of 1715, c. 40, § 3; and your petitioner then and there tendered in open court good and sufficient bail, in the last-mentioned sum of money. The sufficiency of said bail for said amount was fully admitted by said court, as will appear by reference to said transcript of the record; but the court overruled said application upon the express ground that your petitioner was bound to enter special bail to said action, in the amount of the sum sworn to in the affidavit of said Ewing, which sum is shown in said affidavit to be four thousand nine hundred and seventy dollars. Your petitioner is advised that the aforesaid recited act of the legislature of Maryland is in full force in Washington county aforesaid; and that, under and by virtue of said law, it was the duty of the marshal to require no greater appearance-bail, and of the court to require no greater special bail than the amount specified in said act, where no copy of the declaration is sent to be served with the writ; and your petitioner is also advised, that there is in said affidavit no legal cause of bail whatever. Wherefore, inasmuch as the said Circuit Court has refused both of said applications for an appearance on the part of your petitioner to said suit, and as the law provides no other adequate remedy in the premises, whereby your petitioner can, before the final determination of said suit, regain his personal liberty, whereof he is now illegally and unjustifiably deprived, your petitioner prays that the writ of mandamus may be issued and directed to the Judges of said Circuit Court, commanding and enjoining them to receive the appearance of your petitioner to said action, either without requiring special bail, or upon your petitioner causing good and sufficient special bail to be entered to said action, in the sum of one hundred and thirty-three dollars and thirty-three cents and one third of a cent.

And, as in duty bound, your petitioner will ever pray, &c.

ROBERT J. BRENT, for Petitioner.

District of Columbia, Washington County, to wit:

Before the subscriber, a justice of the peace of the District of Columbia, in and for Washington county, personally appears David Taylor, the within petitioner, and made oath on the Holy Evangely of Almighty God, that the facts, as stated in the said petition, are true, to the best of his knowledge and belief.

J. W. BECK, J. P.

Dec. 10, 1852.

District of Columbia, ss.

At a Circuit Court of the District of Columbia, begun and held in and for the county of Washington, at the city of Washington, on the third Monday of October, being the eighteenth day of the same month, in the year of our Lord one thousand eight hundred and fifty-two, and of the independence of the United States the seventy-seventh.

Present,

WILLIAM CRANCH, Chief Judge.

THE HON. JAMES S. MORSELL, and }

} Assistant Judges.

JAMES DUNLOP, }

RICHARD WALLACH, Esquire, Marshal.

JOHN A. SMITH, Clerk.

In the records of proceedings of the said court, amongst others, are the ...


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