Snead v. McCoull

THIS was an appeal from the Circuit Court of the United States for the Eastern District of Virginia.

The facts in the case are fully set forth in the opinion of the court.

It was argued by Mr. Johnson, for the appellant, and Mr. Robinson, for the appellee.

Mr. Johnson said, that prior to 1819, the right to issue an execution was governed by the law of 1748; but in 1819 the Revised Code directed that a capias ad satisfaciendum created a lien upon land from its date. Before that, the law was the same as in England. The decree below rests upon the principle that the lien is destroyed by a ca. sa. But it is not so where the debtor dies in custody or escapes. The reason is, that if the debtor is taken from prison by a cause over which the creditor has no control, then the creditor does not suffer, but may resort to another execution.

If then he is discharged by an act of Congress, the same reason operates, and the creditor should not lose his lien. The second section of the act (2 Stat. at L., 4 § 2,) expressly says that the judgment shall remain and be in full force. Note 68 Wms. Saund., where the cases are collected. 2 Leigh, (Va.), 257; 4 Id., 425. These cases say that the English rule is the Virginia rule.

The point made by Mr. Robinson, upon which the decision turned, was the following.

Under the judicial act of 1789, § 14, (1 Story Laws U.S., 59,) as expounded in Wayman v. Southard, 10 Wheat., 24, the courts of the United States have power to issue writs of execution on their judgments; and under the process acts of 1789 and 1792, (1 Story Laws U.S., 67, 257,) the forms of executions and the forms and modes of proceeding in suits at common law, including (according to the decisions in Wayman v. Southard, 10 Wheat., 32, and Duncan v. Darst et. al., 1 How., 306,) the conduct of the officer in the execution of the process, whether mesne or final, and all the regulations and steps incident to it from its commencement to its termination, are to conform to the law of the State as it existed in September, 1789, so far as that law can be made to apply.

The Virginia act of 1748, concerning executions, (5 Hen. Stat., 526,) which as to this matter was the law of the State in 1789, recognizing that persons recovering judgments, may, at their election, prosecute writs of fieri facias, elegit, and capias ad satisfaciendum for taking the goods, lands or body, and prescribing the form of a writ of elegit as well as of other writs, it is not controverted that Seekamp's administrator might in the first instance have sued out an elegit, and according to the terms and effect of that writ, have extended a moiety of all the lands of which McCoull was seized at the date of the judgment, or at any time after. But having made his election to take out a ca. sa. in the first instance, (as he had a right to do both under the Virginia act and the proviso to the process acts,) and having pursued the ca. sa., we insist-That the plaintiff has no longer the capacity to sue out an elegit, and no longer a lien from the date of his judgment on a moiety of the real estate of McCoull, or any part thereof. 3 Bac. Abr., 393, 394, of Lond. ed. of 1832; 2 Wms. Saund., 68b; Shaw v. Cutteris, Cro. Eliz., 850; Williams v. Cutteris, Cro. Jac., 136; Id., 143; Foster v. Jackson, Hob., 59, (which three cases were decided after Blumfield's case, 5 Co., 174); Lord Ellesmere's Observations on Coke, p. 18; Stat. of 21 Jac.; Burnabey's case, 1 Str., 663; Ex parte Warder, 3 Bro. Ch., 191; Ex Parte Cater, 3 Id., 216; Ex Parte Knowell, 13 Ves., 193; 5 Hen. Stat. p. 531, §§ 3, 4, 5, 6, 7, 8, 9; Id. p. 539, §§ 27, 28; Willson v. Jackson, 5 Leigh, (Va.), 102; 8 Hen Stat. p. 329, §§ 8, 9; Bullock v. Irvine's Adm'rs, 4 Munf. (Va.), 450; Shirley v. Long, 6 Rand (Va.), 735; 1 Rev. Code of 1819, p. 528, § 10; Jackson v. Heiskell, 1 Leigh, (Va.), 257, 260, 261, 275, 276; Foreman v. Loyd, 2 Id., 284, 296, 298; Beverly v. Brooke, 2 Id., 445; 2 Tuck Com., 345, 358, 373; Rogers, &c. v. Marshall, 4 Leigh, (Va.), 425, 431, 432, 435; Leake v. Ferguson, 2 Gratt, (Va.), 432; 1 Lomax's Dig., 302; Beers v. Houghton, 9 Pet., 362; Duncan v. Darst, &c. 1 How., 309; 1 Story's Laws U.S., 716; Bank of U.S. v. Weisiger, 10 Pet., 353; United States v. Stansbury, &c., 1 Id., 573; Tayloe v. Thompson, 5 Id., 367, 368, 369; United States v. Morrison, 4 Id., 124. Hayling v. Mullhall, 2 W. Bl., 1235; Eng. Insolvent Act of 7 Geo. 4, ch., 57, § 61, Evan's Stat. p. 193, ll.; Collins v. Benton, 2 Man. & G., 861; 40 Eng. Com. Law., 663; Freeman v. Ruston, 4 Dall., 214; Jackson v. Benedick, 13 Johns, (N. Y.), 533.

Mr. Justice DANIEL delivered the opinion of the court.