A judgment was obtained in a state court of Alabama against B.
and M., and the sheriff, under an execution issued upon the
judgment, levied upon certain slaves as the property of the
defendants. They were claimed by L. and were delivered to him, he
having given a bond to the sheriff to try the title, and for the
forthcoming of the slaves, according to the law of that state. H.
had obtained a judgment against B. and M. in the District Court of
the United States for the District of Alabama, acting, as a circuit
court; under an execution issued on this judgment, the marshal
levied on the slaves, and they were claimed by L. The marshal
returned that they were so claimed, upon which an issue was formed
in the district court to try the title of L. to the slaves. L. gave
in evidence the record of the judgment in the state court against
B. and M. and the proceedings under it. Certificates of the records
were given on 4 December, 1334, and they showed that the suit
respecting the right of property in the slaves had been continued
at March term, 1834, but did not show whether any further
proceeding in the case had taken place at the preceding spring term
of
the state court. The district court instructed the jury that the
records of the state court were legal evidence by which they might
infer the proceedings were
still depending and undetermined in the state court.
Held that the instruction was correct.
Had the property remained in the possession of the sheriff,
under the first levy, it is clear the marshal could not have taken
it in execution, for the property could not be subject to two
jurisdictions at the same time. The first levy, whether it were
made under the federal or state authority, withdraws the property
from the reach of the process of the other.
Under the state jurisdiction, a sheriff having execution in his
hands may levy on the same goods, and where there is no priority on
the sale of the goods, the proceeds should be applied in proportion
to the sums named in the executions. And where a sheriff has made a
levy, and afterwards receives executions against the same
defendant, he may appropriate any surplus that shall remain after
satisfying the first levy by the order of the court.
But the same rule does not govern where the executions, as in
the present case issue from different jurisdictions. The marshal
may apply moneys, collected under several executions the same as
the sheriff. But this cannot be done as between the marshal and the
sheriff.
A most injurious conflict of jurisdiction would be likely often
to arise between the federal and the state courts if the final
process of the one could be levied on property which had been taken
by the process of the other. The marshal or the sheriff, as the
case may be, by a levy, acquires a special property in the goods,
and may maintain an action for them. But if the same goods may be
taken in execution at the same time by the marshal and the sheriff,
does this special property vest in the one or the other, or both of
them? No such case can exist; property, once levied on, remains in
the custody of the law, and it is not liable to be taken by another
execution in the hands of a different officer, and especially by an
officer acting under a different jurisdiction.
Page 35 U. S. 401
On the giving of the bond, the property is placed in the
possession of the claimant. His custody is substituted for the
custody of the sheriff. The property is not withdrawn from the
custody of law. In the hands of the claimant, under the bond for
its delivery to the sheriff, the property is as free from the reach
of other processes as it would have been in the hands of the
sheriff.
MR. JUSTICE McLEAN delivered the opinion of the Court.
This writ of error is prosecuted by the plaintiffs to reverse a
judgment of the District court, vested with the powers of a circuit
court, for the Southern District of Alabama.
The record in the district court states that on 14 December,
1833, a judgment was entered in that court in favor of John Hagan
against William D. Bynum and Alexander McDade for the sum of
$2.972.58, besides costs, and that an execution was issued against
the goods and chattels, lands and tenements of the defendants,
which, on 19 February, 1834, was levied on several slaves that were
claimed by Charles F. Lucas, who gave bond to try the right of
property. At the time of the levy, the slaves were in the
possession of the claimant.
And the question as to the right of property being brought
before the court under a statute of the state; the claimant, Lucas,
as stated in the bill of exceptions, gave in evidence three
records, certified by the Clerk of the Circuit Court of Montgomery
County, Alabama, of three judgments rendered in that court at
September term for various amounts against the above defendants,
Bynum and McDade, and upon which judgments, it was proved,
executions had regularly issued to the Sheriff of Montgomery
County, which, on 10 October, 1833, were levied on the same slaves
taken in execution by the marshal, as above stated, and that the
claimant filed his affidavit on 25 November, 1833, in the mode
prescribed by the statute, setting forth that the slaves were not
the property of the defendants in the execution, but were his
property, and gave bond and security to the sheriff, as required by
the statute, for the forthcoming of said property if it should be
found subject to said executions, and for all costs and charges for
the delay, &c.
On the giving of this bond, the slaves were delivered to the
possession of the claimant, and these proceedings were returned by
the sheriff to the Circuit Court of Montgomery County. And the
records
Page 35 U. S. 402
showed that at the March and November terms in 1834, the
proceedings for the trial of the right of property were continued.
The record was certified on 4 December, 1834.
Upon this evidence, the court instructed the jury that if they
believed that previously to the levy of the marshal, the slaves had
been levied on by the Sheriff of Montgomery County and that they
had been delivered to Lucas on his making oath and giving bond, as
required by the statute, and if they believed that the proceedings
on said claim were still pending and undetermined in the circuit
court, that the property was, in the opinion of the court,
considered as in the custody of the law, and consequently not
subject to be levied on by the marshal.
And the counsel for the defendant objected to the records from
the Circuit Court of Montgomery, as showing the pendency of the
suit in that court, respecting the right of property, as a term of
the court had intervened, between the certification of the record
and the time of using it in evidence. But the court overruled the
objection, saying, the pendency of the suit was a matter of fact
for the jury to determine and that it might infer from the proof
before it that the suit was still pending, which presumption might
be rebutted by the plaintiff in the execution, &c.
The statute of Alabama under which this proceeding took place
was passed on 24 December, 1812, and provides that where any
sheriff shall levy execution on property claimed by any person not
a party to such execution, such person may make oath to such
property, on which the sale shall be postponed by the sheriff until
the next term of the court, and the court is required to make up an
issue to try the right of property, &c., and the claimant is
required to give bond conditioned to pay the plaintiff all damages
which the jury, on the trial of the right of property, may assess
against him, &c., and it is made the duty of the sheriff to
return the property levied upon to the person out of whose
possession it was taken upon such person entering into bond's, with
security, to the plaintiff in execution in double the amount of the
debt and costs conditioned for the delivery of the property to the
sheriff whenever the claim of the property so taken shall be
determined by the court, and on failure to deliver the property,
the bond, on being returned into the clerk's office, is to have the
effect of a judgment.
The principal question in this case is whether the slaves
referred
Page 35 U. S. 403
to were liable to be taken in execution by the marshal under the
circumstances of the case.
Had the property remained in the possession of the sheriff under
the first levy, it is clear the marshal could not have taken it in
execution, for the property could not be subject to two
jurisdictions at the same time. The first levy, whether it were
made under the federal or state authority, withdraws the property
from the reach of the process of the other.
Under the state jurisdiction, a sheriff having execution in his
hands may levy on the same goods, and where there is no priority on
the sale of the goods, the proceeds should be applied in proportion
to the sums named in the executions. And where a sheriff has made a
levy and afterwards receives executions against the same defendant,
he may appropriate any surplus that shall remain after satisfying
the first levy by the order of the court.
But the same rule does not govern where the executions, as in
the present case, issue from different jurisdictions. The marshal
may apply moneys collected under several executions the same as the
sheriff. But this cannot be done as between the marshal and the
sheriff.
A most injurious conflict of jurisdiction would be likely often
to arise between the federal and the state courts if the final
process of the one could be levied on property which had been taken
by the process of the other.
The marshal or the sheriff, as the case may be, by a levy
acquires a special property in the goods and may maintain an action
for them. But if the same goods may be taken in execution at the
same time by the marshal and the sheriff, does this special
property vest in the one or the other or both of them?
No such case can exist. Property once levied on remains in the
custody of the law, and it is not liable to be taken by another
execution in the hands of a different officer, and especially by an
officer acting under a different jurisdiction.
But it is insisted in this case that the bond is substituted for
the property, and consequently that the property is released from
the levy.
The law provides that the property shall be delivered into the
possession of the claimant on his giving bond and security in
double the amount of the debt and costs that he will return it to
the sheriff if it shall be found subject to the execution.
Page 35 U. S. 404
Is there no lien on property thus situated, either under the
execution or the bond?
That this bond is not in the nature of a bond given to prosecute
a writ of error or on an appeal is clear. The condition is that the
property shall be returned to the sheriff if the right shall be
adjudged against the claimant. Now it would seem that this bond
cannot be considered as a substitute for the property, as the
condition requires its return to the sheriff. The object of the
legislature in requiring this bond was to insure the safekeeping
and faithful return of the property to the sheriff should its
return be required. If, then, the property is required by the
statute and the condition of the bond to be delivered to the
sheriff on the contingency stated, can it be liable to be taken and
sold on execution?
If the property be liable to execution, a levy must always
produce a forfeiture of the condition of the bond. For a levy takes
the property out of the possession of the claimant and renders the
performance of his bond impossible. Can a result so repugnant to
equity and propriety as this be sanctioned? Is the law so
inconsistent as to authorize the means by which the discharge of a
legal obligation is defeated and at the same time exact a penalty
for the failure? This would indeed be a reproach to the law and to
justice. The maxim of the law is that it injures no man, and can
never produce injustice.
On the giving of the bond, the property is placed in the
possession of the claimant. His custody is substituted for the
custody of the sheriff. The property is not withdrawn from the
custody of the law. In the hands of the claimant, under the bond
for its delivery to the sheriff, the property is as free from the
reach of other processes as it would have been in the hands of the
sheriff.
In Holt 643 and 1 Show. 174, it was resolved by Holt, Chief
Justice, that goods being once seized and in custody of the law,
they could not be seized again by the same or any other sheriff;
nor can the sheriff take goods which have been distrained, pawned
or gaged for debt, 4 Bac.Ab. 389, nor goods before seized on
execution unless the first execution was fraudulent or the goods
were not legally seized under it.
In Woodfall's Tenant's Law 389, it is said:
"By the seizure under the execution, the goods were in the
custody of the law, and were not, therefore, distrainable, for it
is repugnant
ex vi termini that it should be lawful to
take the goods out of the custody of the law,
Page 35 U. S. 405
and that cannot be a pledge which cannot be reduced into actual
possession."
In 3 Mun. 417, the court decided that the lien by virtue of a
writ of
fieri facias upon the property of the debtor is
not released by his giving a forthcoming bond, but continues until
such bond is forfeited.
In that case, the defendant's property, having been levied on by
an execution in the hands of the sheriff, was suffered to remain in
his possession, on his giving a forthcoming bond for the delivery
of the goods on the day of sale, but before the day of sale, the
defendant delivered the goods in satisfaction of another execution,
and the question was made whether the forthcoming bond released the
lien of the first execution.
In his opinion, Judge Roane draws the following distinctions
between a forthcoming bond and what is called a replevy bond under
the statute of Virginia. 1. A replevy bond under the act operated a
release of the property. 2. Because the surety therein is to be
approved by the creditor, a circumstance very material in a bond
considered as a substitute for an execution, and wanting as to the
sureties upon forthcoming bonds. 3. Because a replevy bond obtained
the force of a judgment by the mere giving thereof, though its
execution was suspended till the expiration of the three months,
and did not owe its obligation as a judgment to the breach of the
condition thereof, as is the case of forthcoming bonds.
The bond given by the claimant Lucas bears a strong analogy to a
forthcoming bond. By the latter, the goods were to be delivered to
the sheriff on the day of sale by the former, the goods were to be
delivered to the sheriff so soon as the right shall be determined
against the claimant. In neither bond is the plaintiff in the
execution consulted, as is done in a replevy bond, as to the
sufficiency of the surety, nor do either of these bonds, like the
replevy bond, operate as a judgment, until a breach of the
condition. In fact, the bond under the Alabama statute is
substantially a forthcoming bond.
In a late case, the Supreme Court of Alabama decided the same
question which is made on this bond on a bond given for the
delivery of property under the attachment laws of that state. It
decided that the giving of the bond did not release the goods from
the lien of the attachment. A contrary decision had been given by
the court in a case similar, but on further examination and more
mature reflection, two of the three judges made the above decision.
This adjudication, being made on the construction of a
statutory
Page 35 U. S. 406
proceeding and by the supreme court of the state, forms a rule
for the decision of this Court.
We think that part of the charge to the jury by the district
court which respected the pendency of the suit in the state court,
and which was excepted to, was substantially correct, and we are of
opinion that on principle and authority, and also under the
construction given to the statute by the supreme court of the
state, the judgment of the district court must be
Affirmed.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Southern
District of Alabama, and was argued by counsel, on consideration
whereof it is adjudged and ordered by this Court that the judgment
of the said district court in this cause be and the same is hereby
affirmed with costs.