United States v. Dashiel
70 U.S. 688

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U.S. Supreme Court

United States v. Dashiel, 70 U.S. 3 Wall. 688 688 (1870)

United States v. Dashiel

70 U.S. (3 Wall.) 688

Syllabus

1. Where a writ of error is taken to this Court by a plaintiff below, who previously to taking the writ issues execution below and gets a partial but not a complete satisfaction on his judgment, the writ will not, in consequence of such execution merely, be dismissed.

2. Levy of an execution, even if made on personal property sufficient to satisfy the execution, is not satisfaction of the judgment, and accordingly, therefore, does not extinguish it if the levy have been abandoned at the request of the debtor and for his advantage, as ex. gr. the better to enable him to find purchasers for his property.

The United States brought suit at common law -- "debt on bond" -- for $20,085.74 against Major Dashiel, a paymaster in the Army of the United States, and his sureties. Dashiel denied every part of the demand, but claimed specially a deduction of $13,000 from the sum sued for on the ground that while traveling in remote regions of Florida, where he was going with the whole sum in gold coin to pay the army, he had, without the least want of care on his part, been robbed of about $16,000, as was proved among other ways by the fact that a portion of the money, $3,000, easily identified,

Page 70 U. S. 689

was discovered among negro slaves of the neighborhood and got back.

The jury under a charge from the court made allowance for the part of which Major Dashiel alleged that he had been robbed, and found for the United States for a portion only of the sum claimed, to-wit, $10,318.22. Judgment was entered accordingly. Not being satisfied with judgment for this amount, the United States, on the 1st September, 1860, took a writ of error to this Court. Dashiel had also excepted. On the 15th April, 1860, however -- before the government had thus taken its writ of error -- it sued out execution, and, Major Dashiel having waived advertisement, levied on a large amount of real estate and on eight slaves. A portion of the real estate was sold June 5th, 1860, $5,275 having been got for it. The sale was then adjourned.

The only evidence as to what led to an adjournment of the sale appeared in a letter from the deputy marshal who superintended it to the acting marshal, his principal, sent up in the record, which came up on certiorari for diminution after the writ of error was taken out. In regard to this, the record, or amended record as it may be called, after setting out the execution, levy, and return, thus in substance ran:

"Accompanying said return and enclosed with the execution, whether as part of the return or explanatory of the same, as made a part of the record, is the following letter, in words, to-wit:"

"SAN ANTONIO, TEXAS, June 7, 1860"

"TO W. MASTERSON, ESQ.,"

"Acting United States Marshal, Austin"

"DEAR SIR: Your note of the 4th June came to hand yesterday. You learned by my note of the 5th that I had adjourned the sale, after the bids amounted to $5,275, as directed by your note of the 2d. I now act upon your note of the 4th, received yesterday, and return, as you directed, the execution. I think the attorney will certainly approve of your action in staying the sale on the bids reaching $5,000, and I cannot but think that he will, upon seeing the abundance of the levy and learning that there is no hindrances thrown in the way of a forced collection, but a modest

Page 70 U. S. 690

petition for time the better to enable the defendant to find purchasers for his property, now in the clasp of the law. The sympathies of this community for Major Dashiel, where he has long lived with his family, all plead for extension of time, if possible, to the next January Term of the honorable district court. The interest still accruing, would the United States be much injured by the extension?"

"Yours, respectfully,"

"S. NEWTON"

Page 70 U. S. 697

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