Smith Thompson

“ Here is a spirit of equity running through the whole of this judicial transaction, which strikes the common sense of mankind. The other conforms to the severe and rigorous principles of that system which declares 'fiat justicia, ruit coelum:' that is, enforce the law, and administer justice for the creditor according to its stern decrees, if you ruin every party who invokes its protection. Justice is equally done to the creditor in both cases, but how differently; in one case it works injustice and does irreparable injury, and often brings ruin to the parties. ”

“ When the court come to the bond itself, it expresses in clear and intelligible language, that the parties have bound themselves to pay for the principal if he fails; and common justice and common sense would require that cash should pay his just proportion. It does not seem that any particular law is necessary to enable the court to render judgment in such a case-much less the common law ”

“ The government required a bond; but they have no law regulating the form and the extent of the obligation of the bond. They have no common law of the United States, and the court has no power to adopt any system. They have therefore no law, of binding force upon the court. But in this case, the court must apply the general rule, applicable to all human affairs; that the contract shall be governed by the law of the place, the only law known to the parties. Then the court have a guide, and the citizens a law. ”

“ By the common law the creditor demands his bond; he claims judgment equally against the principal, who has contracted the debt, and against the innocent securities who are to be made responsible for him. He selects among them, and chooses whom he will pursue, and whom he will sacrifice. The law places all the parties equally in his grasp; he may, in the wantonness of power, while he saves one from motives of favour or caprice, select his victim, pursue him to judgment, seize and sell and sacrifice his property ”

“ There is no necessity for an amicable demand by the United States. It was the duty of the debtors to settle and pay; and if they did not, it was the duty of the officer to sue.
The practice of Louisiana cannot alter the law of congress.
2. The amicable demand, if necessary, was a fact; and is disposed of by the verdict.
The plaintiffs in error, Nathaniel and James Dick, state that they have received but four thousand dollars of the succession of John Dick. This also is disposed of by the verdict. There is no opinion given by the court on this point, and no exception on the subject. ”

“ The party interested in reversing the judgment only will sue out a writ of error. The court cannot compel the other party to join, and justice could not be done if either party could defeat the other of their legal rights. The aggrieved party must be allowed to bring up the case, and if it is necessary to comply with obsolete forms, the court must decree a severance. ”

“ No injury will result, as the laws of all the states conform to the common law, except those of the state of Louisiana, which are founded on the principles of the civil law. Why should not the people of that state have the benefit of their laws, unless some material injury will result? ”

“ Suppose his representatives are sued, would they not be entitled to these credits? They would not be bound by the verdict in Cox's case, for they are not parties; they are returned non est inventus. It is not only the requirement of law, therefore, but it is the dictate of justice, that Cox should furnish the accounting officer with the evidence of his claim to these credits; for otherwise, the United States may in the first instance be compelled to allow them to Cox, and afterwards to allow them again to Hawkins in the payment for the excess due beyond the penalty of the bond. ”

“ Mr Dick, judge of the United States court, died soon after, before he had paid his proportion.
This payment would have left twelve thousand six hundred and eighty-two dollars and forty-six cents, instead of fifteen thousand five hundred and fifty-three dollars and eighteen cents; and since the judgment, the heirs of Dick have paid ten thousand dollars, and Cox has paid two thousand six hundred and eighty-two dollars and forty-six cents, making in all twenty thousand dollars, paid to the government on this bond by the securities. ”

“ He offered in evidence a certain transcript from the treasury books, duly certified, of certain payments made by Cox in diminution of the balance of Hawkins, since his death, and before the date of the transcript offered by the district attorney.
Mr Johnston argued, that this was a bond executed in Louisiana, and was governed by the laws of the place. That although the parties were bound in solido, it was only an eventual, not a positive responsibility. The principal is first bound by every legal and moral obligation, unless he is absent or insolvent, or his affairs greatly involved ”

“ There is, besides, an additional reason for adopting the laws of the state, and that is, that although John Dick was bound by the common law, in solido, yet his representatives are only bound to contribute, according to the laws of Louisiana; that is, that each should be responsible only for the sum he received as heir, and not for the sum due by John Dick, or for the share of any of his heirs. ”

“ The judgment is erroneous because it is rendered for a larger sum than is demanded in the petition.
4. Because it is rendered, first, in solido against the securities, and second, it is rendered against J. and N. Dick, each, for ten thousand dollars, that is, after a judgment against the parties for the whole amount of the bond. There is also a judgment against two only of the legal representatives of J. Dick for an additional twenty thousand dollars: making in all forty thousand dollars, which is double the amount of the bond, and a much larger sum than is claimed to be due. ”