ཉལ་ be taken as an admission that the respondent had dealt fairly in the business, and that he meant to do so, until they shall prove that it was his design to cheat all of the heirs, including his own children, as well as the wives of the complainants. He may not have acted in his long management of the estates, with all caution and exactness, but nothing has been shown in this case, in his final settlement with the heirs, that he did not mean to act with fairness and liberality, or that any one of them did not think he had done so, when they made these releases. With the view of these releases, we think that the court erred in giving its interlocutory order for an account to be taken. We are relieved by it from considering the points which were made in the argument concerning any community of gains between the respondent and his wife. However that may have been, the releases put an end to all controversy be tween these parties about it. They were fully. argued by counsel, as they should have been, as they could not foresee what would be our view upon the effect of the releases. We could not add anything to the decisions of the courts of Louisiana upon connubial or legal communities of gains between husband and wife. In that answer may be found a narrative of the respondent's business connection, and dealings with the estate of Benjamin S. Bynum and that of his widow, afterwards the wife of the respondent. It shows that he rendered an account of both. That it was done in an open manner and with an intention that it should be examined by those who were interested. It is further shown, that after the accounts had been officially filed, that there was a partition of all the property among the heirs, and that it was consummated by receipts and acquittances from all of them, among them those given by Ewing and his wife, and by Fourniquet and his wife, as they have been already recited in this opinion. The respondent also denies in that answer the charge there made by these complainants, as it is repeated in this suit, that these acquittances were obtained by fraud, misrepresentation, and concealment, and avers that they were executed by the parties with a full knowledge of all their rights, and for a valuable consideration. In that case, as in this, there was no proof that those receipts or releases were fraudulently obtained. The wit nesses, Henderson, Montgomery, and Wal worth, in this suit, are not questioned as to the execution of the releases. The same interroga tions were put to all of them. The answers of each are very immaterial for any purposes in this suit. No one of them knew anything concerning the respondent's pecuniary situation when he married, or when he removed into Mississippi, or of the sources from which the money came which was invested in Mississippi. The same may be said of Wren's testimony. Loria's testimony is as indefinite as that of the others, and he also was not questioned concern-shall be dismissed. ing the execution of the releases. On the other hand, the evidence produced by the respondent in this suit, shows that the releases were not precipitately made. That neither of the complainants gave them until after they had had time to examine his accounts, and not until they had examined them. Whatever they may have thought of the integrity of the respondent, they did not act then as if they suspected it. We see them receiving from him their portions of the estates, of which they were distributees, and other property besides, as gratuities from the respondent, and dealing with both, among themselves and with others, and acting towards 327*] the respondents as if they were *content with what he had done, and with what they had received. We are satisfied, whether it did or did not exist, that the releases given by the complainants are conclusive against them for any claim upon the respondent on account of the estates in which they were interested. No proof having been given that these releases were obtained by any fraud or circumvention, we shall order the decree of the court below to be reversed, and that the bill of the complainants Mr. Justice Curtis dissented. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to dismiss the complainant's bill. S. C., 6 How., 206; 16 How., 82. JOHN PERKINS, Appellant, There was an interval of five years and eleven months between the releases given by the complainants to the respondent. The accounts npon which they were given, were all that time accessible to them. The proofs show that Ewing had scanned them before he gave his release. His interest in the estates were the EDWARD same as Fourniquet's. It was a family business, talked of, no doubt, among themselves, as such matters always will be, and it cannot be supposed that Fourniquet took his wife's portion of the estates without knowing that Ewing had given to the respondent a release when he took his wife's part, or without having had the same means as his associate to learn the condi tion of the estates, and the truthfulness of the respondent's official statement of them. Their acceptance of the portions of their wives must V. P. FOURNIQUET AND HAR- Rule as to interest on judgments and decrees- The sixty-second rule of this court (13 Howard) is as follows: "In cases where a writ of error is prosecuted to the Supreme Court, and the judgment of the inferior court is affirmed, the inferest shall be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest, in the 1852. courts of the state where such judgment is rendered. The same rule shall be applied to decrees for the payment of money, in cases in Chancery, unless otherwise ordered by this court. This rule to take effect on the first day of December Term, Before this rule. interest was to be calculated at six per cent., from the date of the judgment in the Circuit Court to the day of affirmanice here; and the confirmation of the report of the clerk, in the case of Mitchell v. Harmony, 13 Howard, 149, was under the rules then existing. So, also, where a case from Mississippi was affirmed at December Term, 1851, the mandate from this court should have been construed to allow interest at six per cent. from the date of the decree in the court below, to the date of the affirmance in this court. Therefore, it was erroneous either to allow six per cent. until paid, or to allow the current rate of interest in Mississippi, in addition to the six per cent. allowed by this court. The several rules upon this subject examined and explained. under the judgment of this court, and how much, if any, he had overpaid in his settlement with the marshal. It was admitted that the costs were all paid. The only controversy was about the interest and damages, as above stated. The commissioner reported, that according to the basis of settlement claimed by the appellant, he had overpaid the amount due on the decree, $61 50; but that, according to the construction of the mandate insisted on by the appellees, there was still due to them a balance of $3, 831.02. Upon this report, the appellant moved the court to order satisfaction of the decree to be entered of record; or, to quash the execution then in the hands of the marshal, and order the clerk of the court to issue no further f. fa. on THIS was an Circuit Court shal, or the appelices, as might be proper to HIS was an appeal from the Circuit Court the decree; and, also, for an order on the mar of trict of Mississippi. It is stated, in the report of the preceding case, that, at December Term, 1851, a case of Fourniquet and Wife against Perkins came up from Mississippi, and the decree of the Circuit Court was here affirmed by a divided court. It was therefore not reported. The proceedings under the mandate, and the questions which arose thereon, are set forth in the following opinion of the court. Mr. Chief Justice Taney delivered the opinion of the court: It appears in this case, that on the 22d of May, 1849, the Circuit Court for the Southern District of Mississippi passed a decree in favor of the appellees, against the appellant, directing 329*1 *him to pay the sum of $16,496.61, within thirty days thereafter, with legal interest from the date of the said decree, or, in default thereof, the appellees to have execution against the appellant. This decree was affirmed at the last term of this court, with costs and damages, at the rate of six per cent. per annum; and a mandate issued to the Circuit Court reciting the judgment of this court, and directing it to be carried into execution. After this mandate was filed in the Circuit Court, the appellees obtained an execution against the appellant, by which the marshal was commanded to levy the amount of the original judgment in the Circuit Court, with the Mississippi interest of eight per cent., and damages at the rate of six per cent. in addition, making together, fourteen per cent., from the date of the original judgment, until paid. The appellant insisted, that under the mandate, he was bound to pay nothing more than damages at the rate of six per cent. on the original decree, from the time it was rendered. And acting upon this construction of the judg ment of this court, and supposing himself chargeable with the six per cent. damages, until the decree was satisfied, he payed the marshal, on the 12th of May, 1852, the amount he supposed to be due, calculating the interest up to that time, and by some error in the reckoning he paid a small sum over. And as the appellees still insisted upon levying the whole amount for which they had obtained process of execution, he moved the Circuit Court to refer it to a commissioner, to report the amount due refund the money overpaid. But the court overruled the motion, ordering, at the same time, that no further execution should issue, until the appellant had a reasonable time to present an appeal to this court. And this appeal was accordingly taken. An objection has been made to the manner in which this case *has been brought [*330 before the court, and a motion made to dismiss, upon the ground that an appeal will not lie from this decision of the Circuit Court, This objection to the form of proceeding involves nothing more than a question of prac tice. The mandate from this court left nothing to the judgment and discretion of the Circuit Court, but directed it to carry into execution the decree of this court, which was recited in the mandate. And if the decree of this court has been misunderstood or misconstrued, by the court below, to the injury of either party, we see no valid objection to an appeal to this court, in order to have the error corrected. The question is merely as to the form of proceeding which this court should adopt, to enforce the execution of its own mandate in the court below. The subject might, without doubt, be brought before us upon motion, and a mandamus issued to compel its execution. But an appeal from the decision of the court below, is equally convenient and suitable; and, perhaps, more so, in some cases, as it gives the adverse party notice that the question will be brought before this court, and affords him the opportunity of being prepared to meet it at an early day of the term. The appeal certainly would not stay proceedings. And it would be the duty of the Circuit Court, notwithstanding the ap peal, to proceed to execute the judgment of this court, unless, as in this case, he entertained doubts of its construction and meaning, and deemed it, therefore, just and equitable to suspend its execution, until the decision of this court could be had in the premises. It is true, In the case before us, however, there was substantially an equity proceeding and final decree, after the mandate was filed. they were summary, and necessarily so, as the matters in dispute under the execution were brought before the court by motion. But the claims of the respective parties were referred to a commissioner to examine and report; he made his report and the court decided upon it. This decision, although briefly stated, was, in rule this court exercised the same power which it had, exercised in adopting the former rules; that is, the *discretionary power con- [*332 ferred by the Act of 1789, as hereinbefore mentioned. substance, a final decree upon the matters in | in the State Courts in its appellate, as well as controversy. It might, therefore, under the in its inferior tribunals. In adopting the new Act of Congress, be regarded as such, and revised accordingly, by an appeal to this court. Plenary and formal proceedings are not necesessary, and never required, when the dispute is coutined to matters arising under process of execution. They are more conveniently and as fully brought before the court, by a summary proceeding on motion. The questions in controversy in the Circuit Court, and its decision upon them, are therefore regularly before us. The 17th rule provides, that when a case appears to be brought merely for delay, damages shall be awarded at the rate of ten per cent. on the amount of the judgment; and by the 18th rule, the damages are to be at the rate of six per cent. when it appears that there is a real controversy. These two rules were passed in 1803. And as some difficulty arose as to the time for which these damages were to be computed, the 23d rule was afterwards (1807) adopted, and provides, that the damages allowed by the two former rules shall be calculated to the day of the affirmance of the judgment in this court. The question as to the operation of the Act of 1842, upon the 18th and 20th rules, was brought to the consideration of the court at the last term, in the case of Mitchell v. Harmony. The judgment brought up by the writ of error, was rendered in the Circuit Court of New York, and was affirmed in this court. The sum recovered was large, and the interest, even for a short time, was therefore important. And the counsel for Harmony, the defendant in error, moved the court to allow him the New The difficulty in that court, seems to have arisen from supposing that the Act of 1842 ap 331*] plied to judgments and decrees in *this court. And this, we presume, occasioned the error it committed, in the construction and execution of the decree and mandate in question. The Act of 1842 does not embrace cases in equity; nor does it extend to either judgments or decrees, in this court. It is confined, in plain terms, to judgments at law, in the Circuit and District Courts. It places the judgments of these courts, in respect to interest, upon the same footing with the judgments of the State Courts. And where, by the law of the state, the judgment of a court carries a certain interest untii paid, the former rule and the same rate of interest is to be allowed in the Circuit and District Courts of the United States. And the marshal is directed to levy it on process of execution, wherever it can be so levied on a judg-York interest of seven per cent, upon the ment in the State Court. In such cases the judgment bears interest by force of the law, although, upon the face of it, it may not pur port to carry interest. Upon common-law principles a judgment does not carry interest. It is true, that damages may be recovered for the detention of a debt, in an action on the judg ment. But previous to the Act of 1842, neither interest nor damages, for the detention of the debt, could have been levied under process of execution, upon the judgment of a Circuit or District Court of the United States. But the Act of 1842 does not speak of interest or damages upon the judgments of this court, nor does it repeal the 23d section of the Act of 1789. This section provides, that when a judgment or decree is affirmed here, this court is directed to adjudge or decree to the respondent in error, just damages for his delay, and single or double costs, at their discretion. Under this law there is no distinction made between cases in equity and at law. In either of them, the damages to be allowed, in addition to the amount found to be due by the judgment or decree of the court below, is confided to the judicial discretion of this court. And the 17th, 18th and 20th rules were adopted in pursuance of this power. These rules have been in force, and acted on by the court, since 1807, when the 20th rule was adopted, until the new rule upon this subject was made at the close of the last term. And the change then made was not occasioned by any supposed repugnancy between them and the Act of 1842. But because the court deemed it just to place the judgments in this court upon the same footing with the judgments in the Circuit and District Courts: and that suitors in the courts of the United States should stand on the same ground with suitors amount of the judgment, and that the interest should run until the judgment was paid. But as the rules above mentioned were still in force, the court held, that he was entitled to only six per cent., to be calculated from the date of the judgment in the Circuit Court, to the day of affirmance here. The case now before us, was decided in the early part of the last term, before the case of Mitchell v. Harmony, and consequently falls within the operation of the same rules, and damages upon the affirmance of the decree must be calculated in like manner. Indeed, in the New York case, the claim for interest stood on stronger ground than in the pres ent one, for that was an action at law. The Act of 1842, therefore, applied to the judgment in the Circuit Court, and it would have carried state interest until paid, if it had not been brought here by writ of error. But this is a decree in equity, and not embraced in the Act of 1842; and according to the settled chancery practice, no interest or damages could have been levied under process of execution, upon the amount ascertained to be due, and decreed to be paid, if there had been no appeal. (2 Ves., 157, 168, n. 1, Sumn. ed.; 2 Dan. Chan. Plead. and Prac., 1442, 1437, 1438.) Nor could any damages or interest have been given on its affirmance here, but for the discretionary power vested in this court by the Act of 1789. That discretion, as we have already said, extends to decrees *in equity, as well as judgments [*333 at law. And the rules have always been applied to both, unless otherwise specially ordered. It follows, from what we have said, that the appellees, upon the affirmance of the decree, were entitled to damages at the rate of six per cent., to be calculated from the date of the decree to the date of the affirmance; and to no further interest or damages. The decree was passed by the Circuit Court, on the 22d day of May, 1849, for $16,496.61, and was affirmed in this court on the 24th of December, 1851. The interest from the date of the decree to the time of affirmance in this court, is $2,562.37, making together the aggregate sum of $19,058.98. This amount, together with the costs, is all that the appellees were entitled to recover under the judgment and mandate of this court. It appears, however, that the marshal has received, under the process of execution, $19.500, in addition to the costs, and paid it over to the solicitor of the appellees. They have therefore received $441.02 more than they were entitled, and that sum must be refunded to the appellant. It is proper to say, that the mandate in question was in the usual form, and the same with the mandate in Mitchell v. Harmony, and indeed the same that has been used since the adoption of the rules above mentioned. And it never has been supposed by this court to sanction the collection of state interest on the judgment; and still less the unprecedented terest and damages claimed in this case, amounting together to fourteen per cent. 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 age of sixteen years. then and there being one of the family of the deleaving a copy thereof at some public place, at the fendant, and found at his usual place of abode; or dwelling house or other known place of residence of such defendant, he being from home, and no such ceive the same. free white person being found there willing to re The Circuit Court of the United States adopted a rule that the capias should be served personally, or thereof at his or her residence, or usual place of if the defendant be not found, by leaving a copy abode, at least twenty days before the return day thereof. The marshal made the following return to a writ of capias: "Executed on the defendant Hardeman, by leaving a true copy at his residence." This service was neither in conformity with the statute nor the rule. Therefore, when the court gave judgment, by default, against Hardeman, and an execution was issued, upon which a forthcoming bond was given, and another execution issued, and at a subsequent aside the judgment by default, this order was day the court quashed the proceedings, and set correct. When the judgment by default was given, the in-court was not in a condition to exercise jurisdiction over the defendant, because there was no regular service of process, actual or constructive. The cases upon this point, examined. they were still in fieri, and not terminated; and any Moreover, when the proceedings were quashed, irregularity could be corrected, on motion. The decree of the Circuit Court, overruling the motion of the appellant, must therefore be reversed, and a mandate issued, directing the court below to enter the decree satisfied, and from the Circuit Court of the United States THIS case was brought up by writ of error also to order and direct the appellees to repay to the appellant the sum of $441.02, with the state interest thereon of eight per cent. from the time it was received by their solicitor from the marshal. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is ordered, adjudged and decreed, that the decree of the Circuit Court overruling the motion of the appellant, be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with instructions to that court to enter the decree rendered by that court on the 22d day of May, A. D. 1849, for $16,496.61, with legal interest from 334*] said date, satisfied, and *to order and direct the appellees to repay to the appellant the sum of $441.02, with the state interest thereon, of eight per cent. from the time it was received by their solicitor from the marshal. S. C., 6 How., 206: 16 How., 82. BENJAMIN D. HARRIS, Plaintiff in Error, Ο. WILLIAM HARDEMAN, HENRY R. W. HILL, COTESWORTH P. SMITH, AND HENRY A. MOORE. Circuit Court may summarily set aside judgment rendered on default at former term, where defendant had no notice. NOTE. When service of notice to appear and defend is necessary to the validity of a judgment. See note to Hollingsworth v. Barbour, 4 Pet., 466. for the Southern District of Mississippi. The facts are stated in the opinion of the court. It was argued by Mr. Nelson for the plaintiff in error. and Mr. Freeman for the defendant. Mr. Nelson contended that the judgment of the court below was erroneous, and referred to the following authorities: To show that the bond was regularly taken under the Mississippi Statute. (Hutch. Code, 910, art. 6, sec. 2; Howard & Hutch., 653, sec. 73.) The ground of the motion made by the defendants in error, in the court below, was, that the original judgment was void for want of *notice; and that being void, the process [*335 issued upon it and the bond taken under that process, were nullities. It may be true that the return of the service of notice was insufficient. (Smith v. Cohen, 3 Howard, Miss., 35; Tomlinson v. Hoyt, 1 Smedes & Mars'h., 515; Eskridge v. Jones, Id.. 595.) But that was matter to be considered and passed upon by the court rendering the judg ment. (Fatheree v. Long, 5 Howard. Miss., 661; Smith v. Bradley, 6 Smedes & Marsh., 492.) Besides, the defendants were estopped, by the execution of the bond, from denying the validity of the judgment and the execution. (Bank U. S. v. Patton, 5 Howard, Miss., 200; Miller v. Patten, 3 Smedes & Marsh., 463; Keringham v. Scanland, 6 Howard, Miss. 540; Field v. Morse, 1 Smedes & Marsh., 347; Conn Felton, 2 Ib., 535; Clove v. Thorpe, 3 ld., 64: v. Pender, 2 Smedes & Marsb., 386; Pender v. McCoul v. Ellet, 8 Id., 505.) The bond was regularly forfeited. (Barker ▾ The Planters' Bank, 5 Howard, Miss., 566; Puckett v. Graves, 6 Smedes & Marsh.. 384; Talbert v. Melton, 9 Id., 9; Dowd v. Hunt, 10 Id., 414.) And the forfeiture of the bond extinguished the original judgment. (Davis v. Dixon, 1 Howard, Miss., 64; Weathersby v. Proby, ld., 98; Witherspoon v. Spring, 3 Id., 60; Binny v. Stanton, 2 Smedes & Marsh., 457.) Moreover, the return was in conformity with the rule of court. To show the validity of said rule, the plaintiff in error relied upon the Act of Congress of the 24th September, 1789, sec. 34, Laws U. S., Vol. L, 93; Act of 2d March, 1793, sec. 7, Laws U. S., Vol. I., 335; Act of 19th May, Laws U. S., Vol. IV., 279; Wayman v. Southard, 10 Wheaton, 1; Beers v. Haughton, 9 Peters, 330, 360, 361; Fullerton v. Bank U. S., 1 Peters, Sup. Ct., 612; Williams v. Bank U. S., 2 ld., 96; Amiss v. Smith, 16 Peters, 303. Mr. Freeman, for defendant in error: In this case, a motion was made in the court below to quash the forthcoming bond and vacate the original judgment. It was sustained upon the ground of the judgment being a nullity, there having been no service of process upon Hardeman, and no appearance en tered for him. It will be conceded, that if there be no notice, actual or constructive, the judgment is a nullity. (4 Peters, 474; 2 Yerger, 484; 11 Wendell, 652; 15 Johnson, 141; I Smedes & Marshall's Miss., 351.) There was no "actual service" of process on Hardeman, as is shown by the marshal's return. Did he have constructive notice? The Statute of Mississippi 336*] *provides, when the defendant is not found, that constructive service may be made, and points out the mode. (Howard & Hutch inson's Dig., 583, sec. 27.) The Statute was not complied with in executing the writ in this case. It was served by leaving a copy at defendant's residence. And is not even dated. In construing this Statute, the court of last resort in Mississippi have several times held such service to be bad. As, for example, in the case of Smith v. Cohea, 3 Howard's Miss., 35, it is held that a return on a writ "executed by leaving a copy at the boarding house of the defendant, is insufficient. So, also, in the case of Fatheres v. Long, 5 Howard's Miss., 661, it is held that the return "executed by leaving a copy at the defendants house," is bad. And the court goes on to say, that when the service is not personal, the return must show that the requirements of the statute were complied with. A similar exposition of the statute was given in the cases of Tomlinson v. Hoyt, and Eskridge v. Jones, 1 smedes & Marshall, 515 and 595. Had this motion been made at the term next succeeding that at which the judgment was rendered, no one would doubt Hardeman's right to the relief sought by it. Does the giving and forfeiture of the forthcoming boud, and the lapse of time, bar his right? It is believed that if the giving and forfeiture of the forthcoming bond does not bar, the mere lapse of time cannot. For there is no time limited by the statute within which such a motion may be made. That the giving and forfeiture of the forthcoming bond interpose no obstacle to the motion, is clear. Is is true, the court of last resort in Mississippi has frequently decided that a motion to quash a forthcoming bond must be made at the term to which it is returnable. (6 Howard's Miss., 540; 1 Smedes & Marshall, 347; Id., 386.) Yet the same court has held that when the judgment is absolutely void for want of jurisdiction in the court rendering it, either of the subject matter or over the parties, the forthcoming bond is absolutely void also, and subject to be quashed, on motion, at any time, either at, or subsequent to the return term. (Buckingham v. Bailey, 4 Smedes & Marshall, 538.) A stronger reason may be added in this court. Here the forthcoming bond is treated and considered as part of the process of the court. (16 Peters, 312, 313.) In this case, that process is founded upon a judgment confessedly void. The court can always control its own process; and will never permit void writs to be issued and executed, when brought to its attention. And it can make no difference whether the effort to resist *the issuance [*337 and execution of such process is made within one, or after a lapse of ten years, from the date of the void judgment. A rule of court, adopted by the District Judge (Judge Adams), is relied on to show that the execution of the process upon Hardeman was sufficient. Upon this, I remark: 1. That even if the rule be valid, the service is not good, for it has no date; and it does not appear, therefore, that it was executed "fifteen days" before court, so as to give jurisdiction of the person. 2. The District Judge has no power to adopt such a rule. (16 Peters, 314.) The decision of the Circuit Court should therefore be affirmed. Mr. Justice Daniel delivered the opinion of the court: The defendants in error moved the Circuit Court to quash a forthcoming bond, executed by the defendants to the plaintiff; and to set aside the judgment on which the bond was founded, upon the grounds that the forthcoming bond was taken in execution of a judg ment entered against the defendant Hardeman, as by default, when in truth there had been no service of original or mesne process upon him to warrant such a judgment. The facts and proceedings in this case, as disclosed by the record, are as follows: The plaintiff in error, in March, 1839, instituted in the Circuit Court an action on a promissory note against the defendant and three others; and upon the writ sued out in that action, the marshal, on the 9th of April, made a returr in these words: Upon Executed on the defendant Hardeman, by leaving a true copy at his residence.' this return of the officer, at the next succeeding or return term of the court, in May, 1859, a judgment by default for want of appearance was taken against the defendant Hardeman for the amount of the note, with interest and costs. Amongst other proceedings upon this judgment, a writ of fieri fucias was sued out in March, 1840, was levied on sundry slaves, the property of Hardeman, and the forthcoming bond in question executed by him on the 20th of April, 1840. In pursuance of this forthcoming bond another fieri facias was sued out on the 11th of June, 1840, and upon this last writ was indorsed, on the 8th of October, 1840, a cessat executio by the plaintiff's attorney. |