UNITED STATES v. DASHIEL

SUPREME COURT OF THE UNITED STATES, 1865

70 U. S. 688

Debt by the United States for $20,085.74 against Major Dashiel, a paymaster in the army, and his sureties. The defendant claimed that he had been robbed of part of the funds in his care. On the trial there was a verdict for the United States for $10,318.22 and judgment. Not satisfied with the judgment the United States took a writ of error to this court on September 1, 1860. On the fifteenth of April, 1860, however, before taking its writ of error, the government sued out execution against Dashiel and levied on a large amount of real estate and on eight slaves sufficient in all to satisfy the judgment. On the fifth of June, 1860, the deputy marshal sold a portion of the real estate for $5,275, and then adjourned the sale to enable the defendant to find purchasers for his property.66

Mr. Paschall, for the defendant in error, moved to dismiss the writ of error on the ground that there was an execution sued out by the plaintiff, a levy, sale and satisfaction.

Mr. Speed, attorney-general, contra.

CLIFFORD, J.: Execution was issued on the judgment on the fifteenth day of April, and the return of the marshal shows that on the twenty-eighth day of the same month he seized certain real property and slaves sufficient in all to satisfy the judgment. Formality of an advertisement, prior to sale, was omitted by the marshal at the request of the principal defendant, and on the fifth day of June following, the marshal sold certain parcels of the real property at public auction, amounting in the whole to the sum of five thousand two hundred and seventy-five dollars, as appears by his return. Nearly half the amount of the judgment was in that manner satisfied, but the clear inference from the return of the marshal, and the accompanying exhibit, is that the sale was suspended and discontinued at the request of the principal defendant and for his benefit. Request for the postponement of the sale came from him, and it was granted by the marshal, as stated in the record, the better to enable the defendant to find purchasers for his property. Writ of error was sued out by plaintiffs on the first day of September, 1860, and was duly entered here at the term next succeeding, and since that time the case has been pending in this

court.

Motion to dismiss is grounded solely upon the alleged fact that the judgment was satisfied before the writ of error was sued out

L. 671 (1855); Nowell v. Waitt, 121 Mass. 554 (1877). But if the debtor escape or is discharged without the assent of the creditor it is not a satisfaction. Richborough v. West, 1 Hill (S. Car.) 309 (1833); Bowrell v. Zigler, 19 Ohio 362 (1852).

The statement of facts is abridged, and the arguments of counsel and part of the opinion of the court omitted.

1

UNITED STATES V. DASHIEL

779

and prosecuted. Matters of fact alleged in a motion to dismiss, if controverted, must be determined by the court. Actual satisfaction. beyond the amount specified in the return of the marshal can not be pretended, but the theory is, that the levy of the execution in the manner stated affords conclusive evidence that the whole amount was paid, and it must be admitted that one or two of the decided cases referred to appear to give some countenance to that view of the law; that is, they assert the general doctrine that the levy of an execution on personal property sufficient to satisfy the execution operates per se as an extinguishment of the judgment.67 None of those cases, however, afford any support to the theory that any such effect will flow from the issuing of an execution, and the levying of the same upon land. On the contrary, the rule is well settled that in the latter case no such presumption arises, because the judgment debtor sustains no loss by the mere levy of the execution, and the creditor gains nothing beyond what he already has by the lien of his judgment.68 Reason given for the distinction is that the land in the case supposed remains in the possession of the defendant, and he continues to receive and enjoy the rents and profits. Many qualifications also exist to the general rule as applied to the

Mountney v. Andrews, Cro. Eliz. 237 (1591); Clerk v. Withers, I Salk. 322, 2 Ld. Raym. 1072 (1705); Ladd v. Blunt, 4 Mass. 402 (1808); Cutler v. Colyer, 3 Cow. (N. Y.) 30 (1824); Ex parte Lawrence, 4 Cow. (N. Y.) 417, 15 Am. Dec. 386 (1825). In Peck v. Tiffany, 2 N. Y. 451 (1849), it is said: "There are some old cases in which dicta are found, that a levy upon sufficient property to satisfy the execution is a satisfaction, but that doctrine has long since been exploded. Where a sheriff levies upon sufficient property, and through his negligence or misconduct it is lost, destroyed or otherwise disposed of, so that the defendant is deprived of the benefit of it, there is no doubt it should be regarded as a satisfaction of the execution and the plaintiff must in such case seek his remedy against the sheriff. But where the debtor has neither paid the debt, nor been deprived of his property, the simple act of levying upon it is not a satisfaction, whether the debtor has been permitted to retain the property either by his own misconduct, or by his request, or the voluntary act of the officer, because neither works any wrong to him.' See also, the opinion of Cowen, J., in Green v. Burke, 23 Wend. (N. Y.) 490 (1840), and Giles v. Grover, 6 Bligh. (N. S.) 277 (1832).

68

Shepard v. Rowe, 14 Wend. (N. Y.) 260 (1835); Taylor v. Ranney, 4 Hill (N. Y.) 619 (1843). An elegit executed by extent returned and filed, is a full satisfaction of the judgment debt. Co. Litt. 290; 2 Wms. Saund. 68 n; Bac. Abr., execution, D; Crawley v. Lidyeat, Cro. Jac. 338 (1614); Hele v. Bexley, 17 Beav. 14 (1853). And so where land is set off to the creditor. Barnet v. Washebaugh, 16 Serg. & R. (Pa.) 410 (1827); Wareham Savings Bank v. Vaughan, 133 Mass. 534 (1882). But otherwise if the extent is void. Pullen v. Purbeck, 12 Mod. 355 (1700). Or ineffective. Leahy v. Dancer, I Mol. 313 (1828); Cowles v. Bacon, 21 Conn. 451, 56 Am. Dec. 371 (1852). And, generally, a levy on land is not prima facie a satisfaction of the debt. Ladd v. Blunt, 4 Mass. 402 (1808); Gro v. Huntington Bank, 1 P. & W. (Pa.) 425 (1830); Reynolds v. Rogers, 5 Ohio 169 (1831); Hogshead v. Carruth, 5 Yerg. (Tenn.) 227 (1833); Trapnall v. Richardson, 13 Ark. 543, 58 Am. Dec. 338 (1853); Taylor's Appeal, 1 Pa. St. 390 (1845); White v. Graves, 15 Tex. 183 (1855); Robinson v. Brown, 82 Ill. 279 (1876); Bellows v. Sowles, 71 Vt. 214, 44 Atl. 68 (1898). In Indiana a levy on real estate is a satisfaction to the same extent as on personalty. Lindley v. Kelley, 42 Ind. 294 (1873); Touhey v. Touhey, 151 Ind. 460, 51 N. E. 919, 68 Am. St. 233 (1898).

levy of an execution upon the goods of the judgment debtor, as might be illustrated and enforced by numerous decided cases. Where the goods seized are taken out of the possession of the debtor, and they are sufficient to satisfy the execution, it is doubtless true, that if the marshal or sheriff wastes the goods, or they are lost, or destroyed by the negligence or fault of the officer, or if he misapplies the proceeds of the sale, or retains the goods and does not return the execution, the debtor is discharged; but if the levy is overreached by a prior lien, or is abandoned at the request of the debtor or for his benefit, or is defeated by his misconduct, the levy is not a satisfaction of the judgment. Rightly understood, the presumption is only a prima facie one in any case, and the whole extent of the rule is that the judgment is satisfied when the execution has been so used as to change the title of the goods, or in some way to deprive the debtor of his property. When the property is lost to the debtor in consequence of the legal measures which the creditor has pursued, the debt, says Bronson, C. J.,69 is gone, although the creditor may not have been paid. Under those circumstances the creditor must take his remedy against the officer, and if there be no such remedy he must bear the loss.

Tested by these rules, and in the light of these authorities, it is very clear that the theory of fact assumed in the motion can not be sustained. Satisfaction of the judgment beyond the amount specified in the return of the marshal is not only not proved, but the allegation is disproved by the amended record.

Motion denied.70

Grier, Nelson and Swayne, JJ., dissent.

"People v. Hopson, 1 Denio (N. Y.) 574 (1845).

TOA levy on personal property to the amount of the debt is prima facie a satisfaction of the execution, but the presumption may be rebutted. Hoyt v. Hudson, 12 Johns. (N. Y.) 207 (1815); McIntosh v. Chew, 1 Blackf. (Ind.) 289 (1823); Hunt v. Breading, 12 Serg. & R. (Pa.) 37, 14 Am. Dec. 665 (1824); Ontario Bank v. Hallett, 8 Cow. (N. Y.) 192 (1828); Duncan v. Harris, 17 Serg. & R. (Pa.) 436 (1828); Carroll v. Fields, 6 Yerg. (Tenn.) 305 (1834); Ford v. Commrs. of Geauga County, 7 Ohio 492 (1836); Peck v. Barney, 12 Vt. 72 (1840); Green v. Burke, 23 Wend. (N. Y.) 490 (1840); Ostrander v. Walter, 2 Hill (N. Y.) 329 (1842); Taylor's Appeal, 1 Pa. St. 390 (1845); Waddell v. Elmendorf, 5 Denio (N. Y.) 447 (1848); Campbell v. Carey, 5 Harr. (Del.) 427 (1854); Davids v. Harris, 9 Pa. St. 501 (1848); Lucas v. Cassaday, 2 Greene (Iowa) 208 (1849); Montgomery v. Wayne, 14 Ill. 373 (1853); Lyon v. Hampton, 20 Pa. St. 46 (1852); Brown v. Kidd, 34 Miss. 291 (1857); Campbell, Bredlin & Co.'s Appeal, 32 Pa. St. 88 (1858); Garner v. Cutler, 28 Tex. 175 (1866); Walker v. Comm., 18 Gratt. (Va.) 13, 98 Am. Dec. 631 (1867); Carr v. Weld, 19 N. J. Eq. 319 (1868); Hunn v. Hough, 5 Heisk. (Tenn.) 708 (1871); Wilson v. Hatfield, 121 Mass. 551 (1877); Bookstaver v. Glenny, 3 T. & C. (N. Y.) 248 (1874); Smith v. Reed, 52 Cal. 345 (1877); Chandler v. Goodrich, 58 N. H. 525 (1879); McCabe v. Goodwine, 65 Ind. 288 (1879); Oliver v. Georgia, 64 Ga. 480 (1880); Mclver v. Ballard, 96 Ind. 76 (1884); Chandler v. Higgins, 109 Ill. 602 (1884); McKenzie v. Wiley, 27 W. Va. 658 (1886); Conway v. Wilson, 44 N. J. Eq. 457, II Atl. 734 (1888); Smith v. Condon, 174 Mass. 550, 55 N. É. 324, 75 Am. St. 372 (1899).

PEOPLE EX REL. FITCH V. MEAD

781

SECTION II.

SUPPLEMENTARY PROCEEDINGS

PEOPLE EX REL. FITCH v. MEAD

SUPREME COURT of New YORK, SPECIAL TERM, 1865

29 How. Pr. (N. Y.) 360"

E. DARWIN SMITH, J.: The return to this writ of habeas corpus shows that the relator is imprisoned by the sheriff of Cayuga County upon a process for a contempt, specially and plainly charged in the commitment, issued by the county judge of Cayuga county, an officer clearly having authority to commit for the contempt so charged. By the forty-first section of the habeas corpus act, it is provided that when it appears by the return that the prisoner is in custody in such case, he can only be discharged from such imprisonment in one of five cases therein specified, none of which is applicable to this case except the first, which is, "when the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person."

The county judge clearly had jurisdiction in proceedings supplemental to execution. The proper order for the appearance before him of the relator was duly made under section 292 of the code, upon due proof of recovery of a judgment in this court, and that an execution therein had been duly returned unsatisfied, and such order had been duly served upon the relator, and he in pursuance of the requirements thereof had duly appeared before said judge to submit to the examination thereby directed. The county judge had thus also duly acquired jurisdiction of the person of the relator, according to the statute.

The examination of the relator had been commenced, but as the proof clearly shows, had not been completed and the proceedings had been duly continued for that purpose by adjournment at the instance, and for the benefit of the relator, and in consequence chiefly of his sickness, up to the time when the alleged contempt was committed, by the refusal of the relator to answer such further proper questions as he was required to do by the county judge. The refusal of the relator to make answer before the county judge, which is the contempt for which he was convicted and stands imprisoned, was put upon the ground at the time, under the advice of his counsel, that the county judge had lost jurisdiction of his person and of the proceedings, by the appointment of a receiver of the property and effects of the relator, and the filing of the order for such appointment and the testimony then taken, in the county. clerk's office. And this was the point relied upon, by the counsel for the relator, in his argument here for the discharge of the relator, upon the return of the writ of habeas corpus. If it be sound, it would follow that the county judge exceeded his jurisdiction in

"The statement of facts and parts of the opinion are omitted.

requiring the relator to answer the questions put to him; that he had then lost jurisdiction of his person and of the proceedings, and the relator would be entitled to a discharge from his imprisonment for the alleged contempt.

The argument of the learned counsel for the relator is, that the appointment of a receiver of the property of the judgment debtor, is the chief object and end of these proceedings, supplemental to execution, and that upon such appointment the proceeding is terminated; that such appointment is the final step in the proceedings, like final judgment, and that the jurisdiction of the officer is thereupon at an end. This view of the proceedings, I think, is a mistaken one. They were designed to be a substitute in part for the creditor's bill of the court of chancery, under the old system. For the proceedings by suit, subpoena and injunction, calling for a discovery upon oath, and involving the appointment of a receiver, an order from a judge requiring an oral examination and discovery before the judge or a referee out of court, is substituted. It is a summary proceeding, accomplishing the same end with a creditor's bill, and at small expense to the parties. I think it was to some extent borrowed from the one hundred and ninety-first rule of the court of chancery, in force when that court expired. This rule provided that, the debtor against whom a creditor's bill was filed, should not be subjected to the expense of putting in an answer thereto in the usual manner, if he should cause his appearance to be entered, and should within twenty days after service of a copy of the bill and notice of an order to answer, deliver to his complainant a written consent that an order might be entered taking the bill as confessed, and for the appointment of a receiver, and for a reference to take the examination of the defendant in conformity with the rule. Upon presenting such stipulation to the court, the complainant was entitled to an order directing the bill to be taken as confessed against a debtor, and referring it to a master to appoint a receiver and take the examination of the debtor. The order also directed the debtor to transfer to such receiver under oath, all his property and equitable interests, and things in action, and that he appear from time to time before the master for that purpose, and to submit to such examination as the master should direct; and what was accomplished under this system by the filing of the creditor's bill, the injunction thereupon, the stipulation of the defendant under said rule, and the order taking the bill as confessed, and for a reference to appoint a receiver and take the examination of the defendant, is now accomplished by a simple order of a judge, under section 292 of the code, and with the proper proceeding under chapter two of the code, entitled, "proceedings supplemental to the execution."

The appointment of the receiver was under said rule 191, or might have been, the first step in the master's office under the order of reference, and I think in practice was ordinarily the first step taken on the appearance of the defendant before the master. After the receiver was appointed, the defendant was then examined, and