United States v. Dashiel

• Decision Date: 01 December 1865
• Parties: UNITED STATES v. DASHIEL
• Court: U.S. Supreme Court

70 U.S. 688

18 L.Ed. 268

3 Wall. 688

UNITED STATES v. DASHIEL.

December Term, 1865

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,¹ 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,² 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. 1815,³ '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,⁴ 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,⁵ 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;⁶ 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.⁷ He says:

'When goods sufficient to satisfy an execution are seized on fi. fa., the debtor is discharged, even though the sheriff waste the goods or misapply the money arising from the sale, or does not return his execution; for by a lawful seizure the debtor has lost his property in the goods.'

And these principles of law, found alike in England and in our older States, were early adopted, and are completely encysted in the jurisprudence of Texas, from which this case comes. There, as elsewhere, the courts declare, that prima facie a levy of goods, if valid and on property sufficient, is 'satisfaction.'⁸

There is really no authoritative case contrary to these decisions about the effect of a levy, though there are extra-judicial dicta, and some head-notes reporting them, and giving dicta rather than points adjudged, which might lead to a conclusion that there was. Thus in Green v. Burke, in New York, A.D. 1840,⁹ it is said in the syllabus:

'A levy by virtue of an execution is not always a satisfaction of the judgment; though the property levied on be of sufficient value to satisfy the execution, and the defendant be not guilty of eloignment. It is only satisfaction submodo. If the levy fail to produce satisfaction in fact without any fault of the plaintiff, he may proceed to obtain execution.'

But, without affirming or denying what is here said, it is enough to remark that the case itself was one where the so-called 'levy' was made by a constable who was a minor, and who had abandoned the levy to relieve himself from the consequence of assuming the duties of the office within age—an office which it was a fraud in him to attempt to fill. It was held, and rightly of course, that such a levy—no levy whatever—was not a satisfaction.

So, in The People v. Hopsen,¹⁰ Bronson, C. J., says:

'If the broad ground has not yet been taken, it is time it should be asserted that a mere levy upon sufficient personal property, without anything more, never amounts to a satisfaction of the judgment. There is no foundation in reason for a different rule. . . . It often happens that a levy is overreached by some other lien, is abandoned for the benefit of the debtor, or defeated by his misconduct. In such cases there is no color for saying that the judgment is gone; and yet they are included in the notion that a levy satisfies the debt. . . . The true rule I take to be this, that the judgment is satisfied when the execution has been so issued as to change the title, or in some way deprive the debtor of his property.'

If Bronson, C. J., meant only to say that the presumption of satisfaction from a levy on sufficient property, was not one juris et de jure—one not incapable of being rebutted—a rule which had certain exceptions—as the italicized portion of his remarks might lead us to suppose he did mean—there is nothing to be denied by us. If, however, he meant to say that the rule established by his predecessors, in his own court, in its best days, had 'no foundation in reason,'—a meaning difficult, with proper respect to him, to suppose—then we may observe, as the fact is, and as he himself declares¹¹ it was, that his remarks on this subject were not necessary to the decision; and were made only at the wish of counsel; and, we may observe also, that they are put by the reporter as dicta simply 'per Bronson, C.J.;' impertinent really to the case. What he, Bronson, C.J., under these circumstances 'took to be the true rule' is not vastly important in considering what the rule is as established by judicial precedents.

It must be observed that neither this case where Bronson, C.J., thus speaks, nor Green v. Burke before it, where we have extracted the loose syllabus, were cases at all concerning writs of error, or of motions to dismiss or quash them.

Will the doctrine, declared in the New York case of Ostrander v. Walter,¹² and recognized in some few others,¹³ be set up as a reply?—'that where an execution has been levied upon property of the defendant, and abandoned by his request and for his benefit, this will not amount to a satisfaction of the judgment?' If it is, the answer is that the rule does not apply to any facts of this case. Assuming—what is not true in law—that the letter of the deputy marshal was a part of the marshal's 'return' to his execution, yet it...