United States v. Dashiel (70 U.S. 688)

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 travelling 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, $3000, easily identified, 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; $5275 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 inclosed 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 7th, 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 $5275, 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 $5000; 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 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.'

Mr. Paschall, for Dashiel, defendant in error, now moved to dismiss the writ of error; the ground assigned in the motion having been that after judgment rendered 'there was an execution sued out by the plaintiff, a levy, and sale, and satisfaction.'

In favor of the motion he argued:

I. It is an old rule of the law, one not departed from either in modern times, that a levy on sufficient personal property operates, generally speaking, as an extinguishment of a judgment. So far back as Queen Elizabeth's time, Croke gives us the case of Mountney v. Andrews, where it is said, that 'to a scire facias on a judgment the defendant may plead execution on a ''fi. fa. for the same debt, without showing that the writ is returned;''' implying, of course, that the levy was satisfaction. Lord Raymond, in a later day (Queen Anne's), gives us Clerk v. Withers, in which the marginal abstract is this: 'When the defendant's goods are seized of a ''fi. fa. the debt is discharged''.' Nor is this ancient English law alone. It has been nowhere so explicitly declared, or so far carried out, as in the United States. 'When an officer, under an execution, has once levied upon the property of the defendant sufficient to satisfy the execution,' says the Supreme Court of New York, A.D. 1815, 'he cannot make a second levy. This principle appears to be well settled.' Indeed, as that court remarks in the case cited, it had been previously held in New York, that a sheriff could not take security on a ''fi. fa., and still hold the execution in his hand, using it afterwards to enforce payment; and they say, 'According to the principle here recognized, it was immaterial whether the property first levied on was sufficient to satisfy the execution or not.' In 1825, we have in the same Supreme Court the case of Ex parte Lawrence, where the abstract is-'A levy on personal property sufficient to satisfy a fi. fa., is an extinguishment of the judgment on which it issued.' 'This,' say the court there, 'has been often'' held;' and they declared that the judgment therefore ceased by such levy to be a lien on real estate which it previously bound. Numerous other New York cases may be referred to for the same law; if, indeed, after a matter has been once solemnly adjudged, it is respectful to refer to cases affirming it with each reverting term.

In New England, the great name of Chief Justice Parsons, delivering the opinion of his court, sanctions the same position. He says: