JAMES S. MORSELL, SPECIAL BAIL OF WILLIAM SMITH, PLAINTIFF IN ERROR,
v.
HENRY A. HALL.
Supreme Court of United States.
*213 It was argued by Mr. Stewarl and Mr. Johnson, for the plaintiff in error and Mr. Dulany, for the defendant in error.
*214 Mr. Chief Justice TANEY delivered the opinion of the court.
This is a scire facias brought by Hall against Morsell, as the special bail of William Smith, in a suit in the Circuit Court of the United States for the District of Maryland, in which Hall recovered a judgment, and proceeded by proper process to charge the bail.
Morsell appeared to the scire facias, and pleaded: 1st. Nul tiel record; and 2dly. That the promissory note, filed as the cause of bail in the action against Smith, was paid before the judgment was obtained against Smith. The plaintiff, in the court below, took issue on the first plea, and demurred to the second; *215 but the defendant did not join in the demurrer. The court gave judgment for the plaintiff, upon which this writ of error is brought.
The plaintiff in error alleges, that according to the record, the case was decided on the first plea only, and that the demurrer was not disposed of by the judgment and they assign as error, 1st. That no judgment was given on the second plea; and 2dly, if the court consider it to be overruled by the general judgment for the plaintiff below, that then the judgment is erroneous, because the plea was a good defence.
As relates to the first objection, the refusal or omission of the plaintiff in error to join in demurrer was a waiver of the plea, and there was no issue in law upon the second plea upon which the Circuit Court was required to give judgment. Townsend v. Jemison, 7 How. 719, 720.
And as concerns the second objection, if the plea was before the court and not waived, it was no defence. For the right of the defendant in error being established by the judgment in his favor, he was not bound to prove it over again in the scire facias against the bail. 1 Chit. Pl. (Am. Ed. of 1847) 469, 486, and margin.
And consequently the omission to enter a formal judgment upon it could not, under the act of Congress of 1789, c. 20, s. 32, be assigned as error. The omission would be a mere imperfection in form, not affecting the right of the cause or the matter in law as they appear on the record. Roach v. Hulings, 16 Pet. 319; 4 How. 164; Stockton and others v. Bishop, and Parks v. Turner & Renshaw, decided at the present term.
The record, as transmitted to this court, shows that a motion was made, before the judgment on the scire facias to enter an exoneretur of the bail upon ground similar to that taken in the second plea; and that affidavits were filed in support of, and also in opposition to the motion. And it has been urged, in the argument here, that the Circuit Court erred in not granting this motion.
A motion to enter an exoneretur of the bail is no defence to a scire facias even if sufficient grounds were shown to support the motion, (which we do not mean to say was the case in the present instance.) It is a collateral proceeding, not forming a legal defence to the scire facias, but addressing itself to the equitable discretion of the court, and founded upon its rules and practice. Chit. Pl. (Am. Ed. 1847,) 469. No writ of error will therefore lie upon the decision of a motion of that kind; because a writ of error can bring up nothing but questions of law. It does not bring up questions of equity arising out of the rules and practice of the courts. And the proceedings upon the motion to *216 discharge the bail form no part of the legal record in the proceedings on the scire facias and ought not have been inserted in the record transmitted to this court.
There is no foundation therefore for any of the errors assigned in this case, and the judgment of the Circuit Court must be affirmed with costs.
Order.
This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States, for the District of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with cost and damages, at the rate of six per centum per annum.