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Benjamin D. Harris, Plaintiff in error, v. William Hardeman, Henry R. W. Hill, Cotesworth P. Smith, and Henry A. Moore U.S. 334 (1853)

handle is hein.slavery/ussccases0234 and id is 1 raw text is: 834 SUPREkM COURT. Harris v. Hardeman et aL and to order and direct the appellees to iepay to the appellant the sum of $441.02, with the State interes thereon, of eight per cent. from the time it was received by theii solicitor from the marshal. BENJAMIN D. HARRIS, PLAINTIFF IN ERROR, V. WILLIAM HARDE- MAN, HENRY R. W. HILL, -COTESWORTH P. SMITH, AND HENRY A. MooRE. A statute of Mississippi directs that where the defendant cannot be found, a writ of capias ad respondendum shall be served, by leaving a copy thereof with the wife of the defendant, or some free white person above the ng3 of sixteen years, then and there being one of the family of the defendant, and found at his usual place of abode, or leaving a copy thereof at some public place, at the dwelling-house or other known place of residence of such defendant, he being from home, and no snch.free white person being found there willing to receive the same. The Circuit Court of the United States adopted a rule that the capias should be served personally; or, if the defendant be not found, by leaving a copy thereof at his or her residene, or usual place of abode, at least twenty days before the return day thereof. The marshal made the following return to a writ of capias: Executed on the de- fendant Hardeman, by leaving -a true copy at his resideice. This service was neither in conformity with the statute nor the rule. Therefore, when the court gave judgment, by default against Hardeman, and an ex- eli~tlon was issued, upon which a forthcoming bond was given, and another execu- tion issued, and at a subsequent day the court quashed the proceedings, an4 set aside the judgment by default, this order was correct. When the judgment by default was given, the court was not in a condition to exer- cise jurisdiction over the defendant, becausenthere was no regular service of process, actual or constructive. The cases upon this point, examined. Moreover, when the proceedings were quashed, they were still in Jfer, and not termi- .nated; and any irregularity could be corrected, on mot-on. THIS case was brought up, by writ of en-or, from the Circuit Court of the United States for the Southern District of Missis- sippi. The facts are stated in the opinion of the court. It was argued by Mr. Aelson for the plaintiff in error, and Mr. Freeman for the defendant. Mr. Nelson contended that the judgmen; of the court below was erroneous, and referred to the following authorities. To show that the bond was regularly taken under the lissis- sippi statute. Hutch. Code, 910, Art. 6, see. 2; Howard & flutch. 653, see. 78. The ground of the motion made by the defendants in error, in the court below, was, that th originaljudgment was void for

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