The Bank of Columbia v. Sweeny/Opinion of the Court

by John Marshall

This case arose under the provision of the Act of the legislature of Maryland incorporating the Bank of Columbia, which authorizes summary process for the collection of debts due to the bank. That Act allows an execution against the person of the debtor, to issue in the first instance, upon the application of the president of the bank; but it also authorizes the Court, if upon the return of the execution the defendant 'dispute the debt,' to order an issue to be made up, &c. to try the action.

In the present case, the Circuit Court did not refuse to direct such an issue to be made up; which had they refused to do, a mandamus would have been the proper process to compel that to be done, which the Act requires. But the Circuit Court did direct an issue, and allow a plea of the statute of limitations.

The application now is, that the Circuit Court be ordered to withdraw that issue, and to direct a different issue to be made up, according to what the counsel for the bank supposes to be the proper construction of the Act.

We think this is not a proper case for a mandamus. It does not differ in principle, from any other case in which the party should plead a defective plea, and the plaintiff should demur to it; in which case, there is no doubt that the revising power of this Court could be exercised only by a writ of error.

If this motion could now prevail, it would be a plain evasion of the provision of the Act of Congress, that final judgments only should be brought before this Court for re-examination. This case might still be brought before this Court by a writ of error, notwithstanding any opinion expressed upon the mandamus, and the same question again be discussed upon the final judgment. The effect therefore of this mode of interposition, would be to retard decisions upon questions which were not final in the Court below, so that the same cause might come before this Court many times, before there would be a final judgment.

The Court is therefore of opinion that this is not a case for a mandamus, and the motion is denied.

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