Execution. of the execution is defeated, and no change of property takes place. Ibid. 41. It is not necessary that the officer remove the property, or that he sell it before a reasonable time; but if, by order of the plaintiff, the property is left with the defendant, the execution has no operation. Ibid. sition and condemnation were quashed; a scire facias must issue. The court will not willingly listen to a motion to set aside an execution, on the ground that other property in the hands of purchasers, since the judgment, is liable to contribute to the payment of the debt, and ought to have been levied upon. Wilson v. Hurst, 1 Pe 54. The marshal having made the money on a writ of execution, may pay it to the plaintiff, and this will be a sufficient return. The court will not interfere in a summary way to distribute money, the proceeds of an execution, unless the same is paid into court. Wortman v. Conyngham, 1 Peters' C. C. R. 241. 42. There is no difference between a suspen-ters' C. C. R. 140. sion of an execution one day, or for one month or more; the order for any suspension deprives the act of the officer of all its force, until countermanded; and a second execution, levied in the mean time, if pursued, will take preference of the first: aliter, if the second execution issues after the continuance of the order to the officer | not to proceed. Ibid. 43. Land held under a special warrant, may be levied upon under a fieri facias, and sold under a venditioni exponas; but land held under an indescriptive warrant, cannot be so levied upon. Lessee of Lewis v. Meredith, 3 Wash. C. C. R. 81. 44. It is a fatal objection to an execution, that it issued more than a year and a day after the judgment, without a scire facias having been issued to revive the judgment. Azcaroti v. Fitzsimmons, 3 Wash. C. C. R. 134. 45. It seems that the court would not be disposed to aid the plaintiff in an execution which had been dormant for a considerable time, to the disadvantage of a party having equal equity, although he had been equally negligent. lbid. 46. In Pennsylvania, the death of either of the parties after a fieri facias issued, does not prevent the venditioni exponas from issuing immediately upon the return of the fieri facias levied on land, and the same condemned. A scire facias is not necessary. Bleeker v. Bond, 4 Wash. C. C. R. 6. 47. The agreement of the plaintiff to receive certain securities for the debt, and to give time on being certified in a particular way, being conditional, and the condition not being performed, the plaintiff might proceed with his execution, though he had not released the securities. Ibid. 48. The defendant cannot call upon the marshal to return a writ of habere facias possessionem, although the plaintiff may do so. Penn's Lessee v. Kline, 4 Wash. 64. 49. An execution cannot issue in Pennsylvania, until the expiration of ten days from the judgment; and if it issue, the court will set it as de on motion. Bosbyshell et al. v. Oppenheimer, 4 Wash. C. C. R. 388. 50. Lands may be sold in Pennsylvania, under a jument originally obtained against the defendant, and moved against the executor. Wilson v. Watson, Peters' C. C. R. 269. 51. If the terre tenants are affected by sale of their property under an execution, their remedy is by audita querela, or by a motion to the court. Ibid. 52. It is a trespass to arrest a person under an execution after the return day. Stegal v. Adams, 3 Day, 1. 53. A fieri facias had issued in 1806, and there was a levy and condemnation of the defendant's property, and the defendant died after the inqui 55. After the conveyance to a third person of land, which has been recovered in ejectment, a scire facias, and habere facias, must issue, in the name of the plaintiff in the original judgment. Lessee of Penn v. Klyne, 1 Peter's C. C. R. 446. 56. When the lessor of the plaintiff dies after judgment in ejectment, the execution may issue in the name of the lessee of the plaintiff, without the necessity of a scire facias. Ibid. 57. A stranger cannot object to the validity of a judgment, under which an execution has issued, and land has been sold under it. Sawyer's Lessee v. Shannon, 1 Overt. 165. 58. Where a levy and inquisition were set aside by the court, but the fieri facias was not set aside: a new inquisition was held, and returned with the fieri facias and levy annexed, condemning the property; a venditioni exponas was issued, the property sold, and deed acknowledged by the marshal in open court. Held, that the validity of the sale was not affected by the want of an alias fieri facias, or a new levy. Thompson v. Phillips, Baldwin's C. C. R. 266. 59. The acknowledgment of a sheriff's or marshal's deed, is a judicial act which cures all defects in its process, or its execution, which the court have power to remedy by their order. Ibid. 60. If the court has jurisdiction of the case, the parties, and power to order the sale by a venditioni exponas, a sale so made, and a deed acknowledged, cannot be set aside in a collateral action. Ibid. 61. An objection to such sale must show the want of power in the court. Ibid. 62. Irregularities must be corrected by the court which issues the process. Ibid. 63. Erroneous proceedings must be reversed on a writ of error, or they are binding. lbid. 64. The Pennsylvania law of 1798, limiting the lien of judgments, is a law of property and title, applicable to judgments in the circuit court of record before the passage of the law. Ibid. 273. 65. The act does not admit of the same construction as the statute of Westminster, giving a scire facias after a year and a day; there being no analogy between them as to the mischief or remedy. Ibid. 66. A capias ad satisfaciendum, taken ont and returned non est inventus, does not preserve the lien of a judgment, without a scire facias, within five years from its entry. Ibid. Execution. 67. As a general principle, an elder judgment | expressly adjudged; but it is the clear result of is entitled to prior satisfaction; a sale under a the argument of the court. Ibid. younger judgment does not affect the prior one, or prevent a sale under it, so as to pass the title; and if the question was open, the circuit court would give such construction to the fourth section of the Pennsylvania law of 1705. Ibid. 68. But the rule established by the supreme court of this state is otherwise, and will be adopted as the construction of a state law therefore it was held, that a sale by a sheriff, under a judgment in the court of common pleas in this state, passes a title to the purchaser discharged from a prior judgment in this court, either against the defendant, as whose property it was sold, or against any person from whom it was conveyed to the defendant. Ibid. 284. 69. When a fieri facias is levied, and the property is released by order of the plaintiff, the force of the judgment, and consequently the lien created by that judgment upon the debtor's land, are determined eo instanti. Scriba, &c., v. Deanes et al., 1 Brockenb. C. C. R. 168. 70. But if, after the fieri facias is in the hands of the officer, but before it is actually levied, the debtor executes a mortgage to secure the debt, and the creditor covenants to suspend further proceedings upon his judgment, until the property conveyed by the mortgage should be disposed of, and should prove inadequate; and the officer endorses on the execution, "proceedings stopped by order of the plaintiff ;" the fieri facias not being levied, and the covenant to suspend not being perpetual, the judgment is not released, and the lien upon the lands of the debtor created by it is preserved in full force. Ibid. 71. Where a fieri facias is levied, and another fieri facias upon a subsequent judgment in favour of the same plaintiff against the same defendant comes to the hands of the officer, while the property taken under the first execution is in his possession, this does not amount, ipso facto, to a levy. There must be an actual, and not a mere constructive levy. Ibid. 74. The act of the legislature of Virginia, of 1792, to regulate proceedings on judgments, is substantially and technically a limitation on judgments; and is not, therefore, an act to regulate process. It is a limitation law, and is a rule of property; and, under the 34th section of the judiciary act, is a rule of decision for the courts of the United States. Ibid. 75. The act of the legislature of Virginia, of 1792, limits actions and executions on judgments rendered in the state courts; and the same rule must be applicable to judgments obtained in the courts of the United States. Ibid. 76. The process act of congress, of 1828, was passed shortly after the decision of the supreme court of the United States, in the case of Way. man v. Southard, and the United States Bank v. Halstead, and was intended as a legislative sanction of the opinions of the court in those cases. The power given to the courts of the United States, by this act, to make rules as a regulation of proceedings on a final process, so as to con form the same to those of state laws on the same subject, extends to future legislation; and as well to the modes of proceeding on executions, as on the forms of writs. Ibid. 77. After a decree of foreclosure of a mort. gage, and a sale, and the death of the defendant takes place after the decree, it is not necessary to revive the proceedings against the heirs of the deceased party, before a sale of the property can be made. Whiting et al. v. The Bank of the United States, 13 Peters' Reports. 78. A decree of foreclosure of a mortgage, and of a sale, are to be considered as the final decree, in the sense of a court of equity; and the proceedings on the decree are a mode of enforcing the rights of the creditor, and for the benefit of the debtor. The original decree of foreclosure is final on the merits of the controversy. If a sale is made after such a decree, the defendant not having appealed, as he had a right to do, the rights of the purchaser would not be overthrown, or invalidated, even by a reversal of the decree. Ibid. 72. A judgment was obtained in the circuit court of the United States for the district of Virginia, in December, 1821, and a writ of fieri facias was issued on this judgment, in January, 79. The principle of the common law un1821, which was not returned, and no other exe-doubtedly is, that no property but that in which cution was issued until August, 1826, when a the debtor has a legal right is liable to be taken capias ad satisfaciendum was issued against the in execution; and, accordingly, it is well settled defendant. Held, that this execution issued legally, in consequence of the lapse of time between the rendition of the judgment, and the issuing of execution in 1836. Ross & King v. Duval, 13 Peters' Reports. in the English courts, that an equitable interest 73. The result of the opinion of the supreme court in the case of Wayman v. Southard, 10 Wheat. 1; 6 Cond. Rep. 1, delivered by Mr. Chief Justice Marshall, was, that the execution laws of Kentucky, having passed subsequent to the process acts, did not apply to executions issued by the circuit courts of the United States; and that under the judiciary and process acts, 80. The equity of redemption of a mortgagor the courts had power to regulate proceedings on of land in that part of the District of Columbia executions. The power of the court to adopt ceded by the state of Maryland to the United such rules, was not embraced in the point certi-States, cannot be taken in execution under a fieri fied for the decision of the court, and was not facias. At the time of the cession to the United Executory Devise. States, the rule of the common law was the law | rents and profits for sale, is void. Gantly's Lesof Maryland. Ibid. 81. Á chose in action is not liable to be levied on by a fieri facias. Ibid. see v. Ewing, 3 Howard, 707. 87. Only gold and silver can be received under an execution by the marshal in the payment of the debt. M'Farland v. Given, 3 Howard, 717. 82. After the complainant in a bill in chancery filed in the district court of Alabama against an executor, had entered an appeal to the su- 88. The marshal is bound to sell under an preme court from a decree which had been ren-execution which came into his hands during his dered in his favour, the defendant having also term of office. Ibid. appealed from the decree, but had not given bond to prosecute the appeal, the complainant issued an execution on the decree of the district court, and took the property of the defendant's testator in execution. The court held that the execution was unauthorized, and no right of property will pass by a sale under it. Taylor et al. v. Savage's Executors, 17 Peters, 224. 83. A law which regulates the issuing of ex-sold. Brown v. Clarke, 4 Howard, 15. ecutions on judgments previously rendered, affects the remedy and not the contract. Bank of the U. States v. Longworth, 1 M'Lean, C. C. R. 40. 84. In a suit brought by A, an attachment was made of lands laying in Penobscot county; but before execution issued, the portion of this county, containing the said lands, was set off, as Arostook county. The execution was directed to the sheriff of Penobscot county and was levied by his deputy, who was also a deputy of the sheriff of Arostook county. In a suit brought by B, an attachment on the same lands was made subsequent to the attachment by A, but execution was levied under the second suit and attachment before the county was set off. The present is a writ of entry brought by the demandant, who claims through A against the tenant who claims through B. It was held, that the levy of B was not to be postponed to that of A; that the deputy of the sheriff of Penobscot county had no authority to levy the execution of A on lands without his county; and that, although the levy was made by a deputy of Arostook county, yet, since it was not directed to the proper officer, and not made by the deputy in behalf of such officer, it was utterly void. Kent v. Roberts, 2 Story's C. C. R. 591. 85. B. obtained a judgment, on the 7th of December, 1843, in the circuit court of the western district of Pennsylvania, against L. and M. The defendants, on the 15th of December following, prosecuted a writ of error to the supreme court of the United States, giving security, approved by the court, and issuing a citation. On the 11th of January, 1844, B. issued a fieri facias on the judgment. By the Court:-The writ of error, bond and citation, having been given in due season, operated as a stay of execution. A supersedeas to the fieri facias was issued by the supreme court. Stockton et al. v. Bishop, 2 Howard, 76. 86. An act of the state of Indiana directs that real estate shall not be sold under an execution, unless the rents and profits of the estate, for seven years, which shall be first offered for sale under the execution, will produce at the sale the amount of the debt and costs. This is a restriction on the power of the sheriff, and a sale of the fee simple, without a previous offer of the 89. The marshal of the United States levied an execution under process from the court of the United States, on the 9th of November, 1840. The sheriff levied an execution under a judgment of the state court of Mississippi, on the 7th of December following. The purchaser under a sale by the marshal under the execu tion, acquired the better title to the property 90. An execution issuing and bearing date after the death of the defendant, is irregular and void; and cannot be enforced either against the real or personal property of the defendant, until the judgment is revived against the heirs or devisees in the one case, or personal representatives in the other. Irwin's Lessee v. Dundas et al., 4 Howard, 76. 91. A judgment had been obtained, and execution issued, against two defendants, bearing date after the death of one of the defendants, and lands of the deceased defendant were sold. The sale was held to be irregular. The judg ment should have been revived against the surviving defendant, and the heirs of the deceased defendant before the issuing of the execution. Ibid. EXECUTORY DEVISE. 1. Kentucky. The clauses in the will of Johr Campbell, under which the land in controversy was claimed, were as follows: "and if within that time, my said half-brother, Allen Campbell, shall become a citizen of the United States, or be otherwise qualified by law to take and hold real estate within the same, I then direct that my said trustees, or the survivor or survivors of them, shall convey to my said half-brother, Allen Campbell, his heirs or assigns, in fee simple, all the land herein before described in this devise. But if my said half-brother shall not, within the time aforesaid, become a citizen as aforesaid, I then direct that my said trustees, or the survivor or survivors of them, shall sell and dispose of the said land, hereby directed to be conveyed to him, on two years' credit, with interest from the date, to be paid annually, and the money and interest arising from such sale to be transmitted to my said half-brother, to whom I give and bequeath the same. should my said half-brother become a citizen of the United States, or be otherwise qualified to hold real estate within the same, before his death, it is then my will and desire that he shall have the sole and absolute disposal of all the estate herein before devised or bequeathed to him; notwithstanding he may not have obtain But Executory Devise. ed deeds therefor from my said trustees." The 6. A devised all his real estate to his son B testator died in October, 1799. Allen Campbell, and his heirs lawfully begotten, and in case of a native of Ireland, came to the state of Ken- his death, without such issue, he orders C, his tucky in December, 1799; and continued to re-executors and administrators, to sell the real side therein until September, 1804, when he estate within two years after the son's death; died. On the 18th of December, 1800, the legis-and he bequeaths the proceeds thereof to his lature of Kentucky passed a law, under which brothers and sisters by name and heirs for ever, Allen Campbell was authorized to hold the land or such of them as shall be living at the death devised to him. By the court:-The devise to of B, to be divided between them in equal proAllen Campbell was a good executory devise, portions, share and share alike: all the brothers depending on the contingency of his becoming and sisters die leaving issue; then C dies, and a citizen of the United States, or being other-afterwards B dies without issue. Held, that the wise qualified to hold real estate. This con- word heirs in the bequest of the proceeds of the tingency was not too remote. It must neces-sale of the real estate, was a word of limitation; sarily, not only from the nature of the contingency, but by express limitation in the devise, happen in the lifetime of the devisee, if ever; and upon the happening of this contingency, there can be no doubt but the devisee took an estate in fee. Beard v. Rowan, 9 Peters, 301. 2. A testator lent to his son W. a tract of land for life, and "if he has children, at his death he may dispose of it as he thinks proper; reserving to his now wife, the use of the land for her life, as long as she remains his widow; but if she marry, then she is to have only one-third part, the whole or part, whichever she has, to be held, without committing waste." "If my son W. dies, without heirs, then the land, with the consideration abovementioned, to go to my son Z., &c. This is an executory devise to W. in tail, after an estate for life to himself, remainder in fee to his children, living at the time of his death, which executory devise in tail is to take effect on the contingency of his dying without children, living at the time of his death. Murdock et al. v. Shackelford's Heirs, 1 Brockenb. C. C. R. 131. 3. A testator devises his estate to his four brothers and sisters, and to their children; "but if they should all die without leaving any issue of the body of either of them, alive at the time of the death of the survivor of them, or if such issue should die before attaining the age of twenty-one years, then my desire is," &c. The term issue comprehends as well the more remote descendants as the children of the devisee; and consequently the remainder over is too remote, being limited to take effect on a contingency which may not happen during a life in being and twenty-one years afterwards. Maxwell et al. v. Call, Executor et al., 2 Brockenb. C. C. R. 119. 4. A devise to A in fee, and if he shall die under the age of twenty-one years, and without issue, then to B in fee, is a good executory devise; and if B die before the contingency occur, it descends to his heir; and so from heir to heir, until the contingency happen, when it vests absolutely in him only who can then make himself heir to B. Barnitz's Heirs v. Casey, 7 Cranch, 456; 2 Cond. Rep. 561. 5. And although A be the heir at law of B, yet the executory devise thus devolving upon him, is not merged in the precedent estate, but on the death of A devolves to the next heir of B. Ibid. and that as none of the brothers and sisters were living at the death of B, the devise to them could not take effect. Duly's Lessee v. James, 8 Wheat. 495; 5 Cond. Rep. 505. 7. E., being seized of lands in the state of New York, devised the same to his son Joseph in fee, and other lands to his son Medcef in fee and added, "It is my will, and I do order and appoint, that if either of my sons should depart this life without lawful issue, his share or part shall go to the survivor; and in case of both their deaths, without lawful issue, then I give all the property to my brother J. E. and my sister H. J. and their heirs." J., one of the sons, died without lawful issue in 1812, leaving his brother M. surviving, who afterwards died without is sue. Held, that J. took an estate in fee, defea sible, in the event of his dying without issue, in the lifetime of his brother; that the limitation over was good as an executory devise; and the estate, on the death of J., vested in his surviv ing brother M. Jackson, ex dem. St. John, ▾. Chew, 12 Wheat. 153; 6 Cond. Rep. 489. 8. A devise to A, "and if he shall die without an heir before he shall arrive at the age of twenty-one years, that then all that is to him herein bequeathed, to be equally divided amongst his brothers and sisters, or their heirs." A takes a fee simple with an executory devise over to his brothers and sisters. Lippett v. kins et al., 1 Gallis. C. C. R. 454. Hop 9. If the devise be to one and his heirs, and upon an indefinite failure of heirs, then over to a person who might be an heir of the first devi see, his estate is restrained to a fee tail, for he could never be without heirs, while the second devisee or his heirs existed; and therefore it is plain that the testator used the word heirs, as equivalent to heirs of the body. But if in such case the devise over were to a stranger, the gen eral meaning of the word heirs would prevail, and the estate over being too remote, would be void as an executory devise. Lillibridge v. Adie, 1 Mason's C. C. R. 224. 10. So also if the devise be to one and his heirs, and upon a limited contingency to take effect in his life, as upon his dying under age, then over, the first estate is a fee simple, whether the ultimate devisee be an heir or a stran ger: for the second devise would be upon a limited contingency, and good as an executory devise, and therefore it is not necessary to restrain the previous estate, in order to effectuate the intention of the testator. lbiu. Executive Department. 11. A devise over after a fee, in case the ori- | the power of the executive over an officer, not ginal devisee should die before he came of age, removable at his will, must cease. That point or without issue, is a good executory devise; of time must be when the constitutional power and the word "or," is construed "and;" so that of appointment has been exercised; and the the second devisee would be defeated, either by power has been exercised, when the last act the first devisee attaining his age, or having required from the person possessing the power issue and the reason is, that otherwise, if the has been performed. This last act is the signa first devisee should die under age, although he ture of the president. Ibid. had issue living, the estate to him would be defeated, contrary to the manifest intention of the testator. Ibid. 12. Devise by testator to his wife for life, and after her decease to his two daughters A and B, to them their heirs and assigns, but in case they should die without issue, that the same should go to and vest in their two sisters C and D. Held, that the devise to A and B was a fee tail, and not a fee simple; the contingency upon which the limitation was to take effect, not being limited to a life in being, but being upon an indefinite failure of issue, and that the estate to C and D was a vested remainder, to take effect upon the death of both A and B without issue. That cross-remainders in tail were implied between A and B. That at common law A and B would take joint estates for life, with several remainders in tail to their issues; but by the statute of Rhode Island, it would be turned into a tenancy in common, and several estates tail in possession vested in them. Ibid. 13. The law never unnecessarily creates an executory devise, unless when the testator's intention would otherwise be defeated. Willis's Lessee v. Boucher, 3 Wash. C. C. R. 369. EXECUTIVE DEPARTMENT. 1. Where the heads of the departments of the government are the confidential officers of the government, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. Marbury v. Madison, 1 Cranch, 137; 1 Cond. Rep. 267. 4. The president of the United States has a discretionary power to allow such additional number of rations to officers commanding at separate posts, as he may think just, having respect to the special circumstances of each post. The law granting this authority is not imperative; and in the exercise of his discretion, the president may allow, or refuse to allow additional rations, as in his opinion he may deem proper. 1 Peters, 296. 5. The secretary of war, as the legitimate organ of the president, under a general authority from him, may exercise the power, and make the allowance to officers having a separate command. Ibid. 297. 6. The president of the United States, as the executive of the nation, has, as an incident of the office, a right to employ all the usual and customary means acknowledged in war, to carry it into effect. He may therefore authorize the capture of all enemy's property, wherever, by the law of nations, it may be lawfully seized, and is not restrained from authorizing captures on land. The Emulous, 1 Gallis. C. C. R. 563. 7. To contend that the obligations imposed on the president, to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and is entirely inadmissible. Kendall, Postmaster-General, v. The United States, 12 Peters, 524. 8. Congress, by a special act passed for the purpose, directed the accounts of certain mail contractors to be referred to the solicitor of the treasury, and that the amount found by the solicitor to be due to the contractors, should be passed to their credit by the postmaster-general of the United States. The postmaster-general refused to allow to the credit of the mail contractors, the whole sum found to due to them by the solicitor of the treasury, and a mandamus was asked from the circuit court of the District of Columbia, to be directed to the postmastergeneral, commanding him to conform to the act of congress, and the report of the solicitor of the treasury. In opposition to the prayer for the 2. The president of the United States, by mandamus, it was urged that the postmastersigning the commission, appointed Mr. Marbury general was alone subject to the direction of a justice of the peace for the county of Wash- the president of the United States. with respect ington, in the District of Columbia; and the to the execution of the duty imposed on him by seal of the United States affixed thereto by the the law under which the solicitor of the treasury secretary of state, is conclusive testimony of acted; and this right of the president was the verity of the signature, and of the comple-claimed as growing out of the obligation imtion of the appointment; and the appointment conferred on him a legal right to the office for the space of five years. Having this legal right to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of the country afford him a remedy. lbid. 3. Some point of time must be taken, when VOL. I.-61 posed upon him by the constitution, to take care that the laws be faithfully executed. By the Court:-This doctrine cannot receive the sanction of this court. It would be vesting in the president a dispensing power, which has no countenance for its support in any part of the constitution, and is asserting a principle which, if carried out in its results to all cases falling 4Q |