EX PARTE DAVENPORT, 31 U. S. 661 (1832)

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U.S. Supreme Court

Ex Parte Davenport, 31 U.S. 6 Pet. 661 661 (1832)

Ex Parte Davenport

31 U.S. (6 Pet.) 661


Motion for a mandamus to the District Judge of the Southern District of New York directing him to restore to the record a plea of "tender" which had been filed, by the defendant in a suit on a bond for the payment of duties, which had been ordered by the court to be struck off as a nullity. By the Court:

"As the allowance of double pleas and defenses is a matter not of absolute right but of discretion in the court, and as the court constantly exercises a control over the privilege and will disallow incompatible and sham pleas, no mandamus will lie to the court for the exercise of its authority in such cases, it being a matter of sound discretion exclusively appertaining to is own practice. The Court cannot say judicially that the district court did not order the present plea to be struck from the record on this ground, as the record itself furnishes no positive means of information."

Upon the true interpretation of the provision in the sixty-fifth section of the Duty Collection Act of 1799, ch. 128, relative to granting judgment on motion in suits on bonds to the United States for duties, the legislature intended no more than to interdict the party from an imparlance or any other means or contrivances for mere delay. He should not, by sham pleadings or other pretended defenses, be allowed to avail himself of a postponement of the judgment to the injury of the government or in fraud of his obligation to

make a punctual payment of the duties when they had become due. There is no reason to suppose that the legislature meant to bar the party from any good defense against the suit founded upon real and substantial merits. And such an intention ought not in common justice to be presumed without the most express declarations.

The language of the sixty-fifth section neither requires nor justifies any such interpretation. It merely requires that judgment should be rendered at the return term unless delay shall be indispensable for the obtainment of justice.

There is no impossibility or impracticability in courts' making such rules in relation to the filing of the pleadings and the joining of issues in this particular class of cases as will enable the causes to be heard and tried upon the merits and a verdict found at the return term of the court.

This was a motion by Mr. Hall, of counsel for the relator, for a mandamus to the judge of the District Court of the United States for the Southern District of New York

"commanding him to restore to the record of the cause, the plea for tender, filed in the cause by the defendant and to proceed to the trial and judge thereupon according to law, and to vacate all rules and orders entered in the said court, setting aside such plea as a nullity."

The affidavit of John A. Davenport was filed stating the institution of a suit by the United States in the District Court of the United States for the Southern District of New York in

Page 31 U. S. 662

February term, 1831, against himself and a certain John A. Lacon, and that a declaration was filed therein against the defendants, to which the said John A. Davenport, he being the only defendant who appeared, after oyer, interposed two pleas. The declaration was in debt on a bond to the United States for duties on merchandise imported into the port of New York by Thomas H. Lacon, one of the obligors, on 1 May, 1831, in the penal sum of $500. The amount stated to be due to the United States, in the condition of the bond, was $50.25. In the margin of the bond was written in figures the sum of $228.34.

The first plea of the defendant was "non est factum."

The second plea stated that when the bond became due, to-wit on 21 January, 1832, before the commencement of the suit, the defendant Thomas H. Lacon was ready and willing, at the City of New York, to pay the amount due thereon, being the sum of $50.25, and that on the same day he tendered to the plaintiffs the said sum of money which the plaintiffs refused to receive, and that he was still willing and ready to pay the same, and that the said sum of $50.25 was brought into court, to be paid to the plaintiffs.

The affidavit proceeded to state that the bond was given on the importation of certain manufactured iron into the port of New York, for which, as manufactured iron and according to the tariff, the amount of duties as set forth in the condition of the bond was correct. That the collector of the port of New York, however, upon an allegation that such iron was not manufactured iron but was subject to a specific duty, increased the amount of duties to the sum set forth in the margin of the bond, and filled in, or caused to be filled in, the penalty of $500, being after the execution of the bond and tender of payment and without the assent of the deponent, to enable a recovery to be had to the extent of the increased duty, and that a tender of the amount in the condition mentioned was made in order to test the questions arising out of the acts of the collector, and the plea interposed accordingly.

The affidavit further stated that the district attorney of the United States moved to strike off from the record the plea of tender as a nullity, and that upon argument, the district judge

Page 31 U. S. 663

did decide that under the act of Congress no other plea could be interposed to the bond except the plea of non est factum, and did thereupon order the said plea to be stricken from the record as a nullity.

Mr. Taney, attorney-general, presented to the court the affidavit of the District Attorney of the United States for the Southern District of New York stating the circumstances of the case, and also a certified copy of the proceedings in the district court.

The case was submitted without argument.

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