Benjamin Helm Bristow to J. E. McDonald, 16 November 1871

Nov. 16, 1871. Hon. J. E. McDonald, Indianapolis, Ind. Sir: On taking up the cases of Davidson and others, vs. The United States, pending in the Supreme Court, on error to the Circuit Court for your District, for the purpose of briefing it, we find that there is no judgment of the Circuit Court to which any writ of error could be taken. In fact there is no judgment at all in the Circuit Court. Moreover an examination of the judgment of the District Court shows that the judgment is against Johnathan M. Dair upon the verdict, whereas judgment had already been rendered against him on demurrer, and the defendant, Davidson, appears to have been omitted entirely from the judgment on the verdict. Of course, Davidson, not being a party to the judgment, even in the District Court, could not prosecute this writ of error. The objection first states, however, seems to be conclusive against the validity of the writ, and is of such character that whether the exception be taken by the United States or not, the Court would be sure to dismiss the writ. In view of these facts, I have prepared no brief, but propose to move to dismiss the writ on the calling of the cause, unless, in the meantime, you shall see proper to make an effort to amend the record by a certiorari. If it be your pleasure to pursue this course, I will make no objection. The case will probably be reached next week. Very respectfully​ B. H. Bristow, Solicitor General.