7 U.S. 241
3 Cranch 241
2 L.Ed. 427
DOBYNES & MORTON
February Term, 1806
ERROR TO THE DISTRICT COURT
OF THE UNITED STATES FOR KENTUCKY
To support a judgment on a collector’s bond at the return term, it must appear by the record that the writ was executed fourteen days before the return day.
This writ of error came up at last term from the District Court of the United States for the Kentucky District, which, by law, has the jurisdiction of a circuit court of the United States.
The United States instituted a suit in the District Court of Kentucky against Lewis Moore, principal, and Dobynes & Morton, sureties, in an official bond given by Moore, as collector of the revenue.
The writ of capias ad respondendum, by which the action was commenced, was issued on 12 February, 1803, returnable to the second Monday in March following, and judgment was recovered be default at the return term on motion.
It was insisted on for error that it did not appear from the record that the writ had been executed fourteen days before the return day, according to the provisions of the fourteenth section of the Act of Congress of July 11, 1798. 1 Story’s Laws 541.
The section declares:
“That the bond of any supervisor or other officer of the revenue who shall neglect or refuse, for more than six months, to make up and render to the proper officer his accounts of all duties collected or secured, pursuant to such forms and regulations as have been or shall be prescribed, according to law, or to verify such accounts on oath or affirmation if thereunto required, or to pay over the moneys which shall have been collected, shall be deemed forfeited, and judgment thereon may be taken at the return term, on motion, to be made in open court by the attorney of the United States, unless cause to the contrary be shown, and allowed by the court, provided always that the writ or process in such case shall have been executed at least fourteen days before the return day.”
The record contained a copy of the bail bond which was executed by Morton on 11 Mardi, and the receipt of the jailor for the body of Dobynes, dated on 12 March, 1803. According to the calendar, the second Monday of March could not have been later than the 14th of that month.
It was admitted by the Attorney General of the United States that the judgment could not be supported, as the record did not show that the writ had been executed fourteen days before the return day.